Original scientific paper
Dementia and Legal Competency
Pavo Filaković
Anamarija Petek Erić
Mate Mihanović
Trpimir Glavina
Sven Molnar
Abstract
The legal competency or capability to exercise rights is level of judgment and decision-making ability needed to manage
one's own affairs and to sign official documents. With some exceptions, the person entitles this right in age of majority.
It is acquired without legal procedures, however the annulment of legal capacity requires a juristic process. This resolution
may not be final and could be revoked thorough the procedure of reverting legal capacity – fully or partially. Given
the increasing number of persons with dementia, they are often subjects of legal expertise concerning their legal capacity.
On the other part, emphasis on the civil rights of mentally ill also demands their maximal protection. Therefore such distinctive
issue is approached with particular attention. The approach in determination of legal competency is more focused
on gradation of it's particular aspects instead of existing dual concept: legally capable – legally incapable. The
main assumption represents how person with dementia is legally capable and should enjoy all the rights, privileges and
obligations as other citizens do. The aspects of legal competency for which person with dementia is going to be deprived,
due to protection of one's rights and interests, are determined in legal procedure and then passed over to the guardian decided
by court. Partial annulment of legal competency is measure applied when there is even one existing aspect of preserved
legal capability (pension disposition, salary or pension disposition, ability of concluding contract, making testament,
concluding marriage, divorce, choosing whereabouts, independent living, right to vote, right to decide course of
treatment ect.). This measure is most often in favour of the patient and rarely for protection of other persons and their interests.
Physicians are expected to precisely describe early dementia symptoms which may influence assessment of specific
aspects involved in legal capacity (memory loss, impaired task execution, language difficulties, loosing perception of
time and space, changes in mood and behaviour, personality alterations, loss of interests and initiative). Towards more
accurate determination of legal competency the psychometric tests are being used. The appliance of these tests must be
guided with basic question during evaluation: „For what is or is not he/she capable?« In prediction of possible dementia
development, the modern diagnostic procedures are used as help for potentially demented individuals in order to plan
own affairs and by oneself determine future guardian. This ensures the maximal respect and protection of rights among
persons with dementia in order to independently manage life one step ahead of progressive illness. Finally, it is to be distinguished
medical concept of legal capacity which is universal and judicial concept which is restricted by rules of national
legal system differing from country to country.
Keywords
dementia; legal competency; capability to exercise rights
Hrčak ID:
69128
URI
Publication date:
24.6.2011.
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