Assessing Capacity Within a Context of Abuse or Neglect

In 2000, with the implementation of Part III of the Adult Guardianship Act: Support and Assistance for Abused and Neglected Adults, British Columbia formally recognized the need to examine issues of decisional capacity of older adults within a context of abuse or neglect. Interestingly, however, although the test of capacity was clearly laid out under this piece of legislation, the potential influence that living in a situation of abuse or neglect may have on how the person makes decisions is not explicitly addressed. Similarly, this is a missing link throughout the literature discussing decisional capacity in older adults. This gap exists despite the fact that determining the “protection” needs of someone who is being abused and/or neglected often hinges directly on that person's decisional capacity. The purpose of this article is to examine the unique aspects associated with assessing and determining capacity for older adults who are living in a situation of abuse or neglect. The specific objectives are to: (a) examine how living in a situation of abuse or neglect may influence the determination of capacity and (b) explore the implications of conducting an assessment within a potentially abusive context. The legal notion of undue influence and the psychological concept of relational connection are introduced as potentially important for considering decision making within this context.