Validation of an Instrument to Assess the Mental Capacity to Sign an Enduring Power of Attorney

Abstract

Objective: To describe the validation of an instrument to assess the mental capacity of an individual to sign an enduring power of attorney.

Methods: An instrument named Capacity Assessment to Sign an Enduring Power of Attorney (CASEPA) was developed following a literature review, focus group discussions, expert reviews, and pilot testing. Chinese persons aged ≥ 60 years who had a range of cognitive abilities were recruited from elderly care centres in Hong Kong to explore its psychometric properties.

Results: A total of 85 participants were included. For inter-rater reliability, the intraclass correlation coefficient was 0.93 for understanding, 0.87 for appreciation, and 0.84 for reasoning. For internal consistency, the Cronbach’s alpha was 0.75 for understanding, 0.74 for appreciation, and 0.86 for reasoning. The content validity was examined by an international expert in mental capacity and psychiatry and by 5 local experts in the fields of mental health, law, psychiatry, psychology, and geriatrics. The clinician ratings correlated with the ability score for understanding (r = 0.74, p < 0.001), appreciation (r = 0.73, p < 0.001) and reasoning (r = 0.73, p < 0.001).

Conclusion: The CASEPA is a potentially useful tool to assess the mental capacity of an individual to sign an enduring power of attorney.

Introduction

The population of Hong Kong is rapidly ageing and the rate of cognitive impairment increases with age.¹ There is an increasing number of people suffering from cognitive impairment. Western studies have determined that individuals with cognitive impairment demonstrate deficits in financial ability.^2,3 Such loss of capacity can result in failure to maintain an independent life, additional caregiving burden, or financial exploitation. It is therefore important for individuals who have or are at risk of having cognitive impairment to consider financial planning before they become mentally incapacitated.

An enduring power of attorney (EPA) is a legal instrument that allows an individual (the donor) to appoint attorney(s), while he or she is still mentally capable, to look after their financial affairs in the event that he or she subsequently becomes mentally incapacitated.⁴ It is a special type of power of attorney under the Enduring Powers of Attorney Ordinance (Cap. 501 of the Laws of Hong Kong) that was enacted in 1997.⁵ While a general power of attorney will cease to be effective if one becomes mentally incapacitated, an EPA will ‘endure' the donor's mental incapacity and give the attorney the power to continue managing the donor's financial affairs despite such incapacity. The EPA is regarded as a useful tool to extend autonomous decision-making power in the event of mental incapacity. The ‘enduring' nature of EPAs remains the same across different countries. Nonetheless there are variations between countries with regard to the scope of authority and statutory requirements of EPAs. For example, at the time of writing, EPAs in Hong Kong extend only to decisions about the property and financial affairs of the donor. In a number of other countries, including England and Wales, EPAs or their equivalent have a wider scope, and allow the attorney to make personal care decisions for the donor.⁵

Individuals who sign an EPA are likely to be concerned that their mental capacity may subsequently deteriorate. They may also be presently subject to undue influence and / or impaired judgement. To safeguard against the abuse of EPAs, Section 5(2) of the Enduring Powers of Attorney Ordinance (Cap. 501 of the Laws of Hong Kong) requires that individuals who sign an EPA have their mental capacity to do so endorsed by both a registered medical practitioner and a solicitor.⁴ The certification of an individual's mental capacity has important consequences. If subsequent legal disputes occur, the certifying practitioner can be requested by the court to produce the evidence used to establish the individual's mental capacity at the time of signing the EPA.

Previous studies have found that mental capacity assessment instruments can provide a standardised basis for systematically evaluating important abilities that are integral to mental capacity, and that such instruments can offer enhanced reliability for such assessments.^6-8

Nonetheless in Hong Kong and other western countries, there is no comprehensive validated instrument to assess the mental capacity of an individual to sign an EPA. There is a pressing need to develop such an instrument.

The present study aimed to develop an instrument to assess the mental capacity of an individual to sign an EPA.

Methods Participants

All participants were recruited by convenience sampling from December 2013 to May 2014 through announcements made in 5 elderly care centres, including 4 in the New Territories and 1 in Kowloon, of a local non-governmental organisation. The inclusion criteria were ability to speak Cantonese, age [greater than or equal to] 60 years, and absence of any significant communication difficulty (e.g. severe hearing deficit or significant language barrier). The Clinical Dementia Rating (CDR) was used to assess the severity of any cognitive impairment among the participants.⁹ Participants with a global CDR score of [greater than or equal to] 2, which denotes moderate or severe dementia, or participants with a known history of other neurodegenerative or major psychiatric disorders were excluded.

Assessment The Chinese Version of the Capacity Assessment to Sign an Enduring Power of Attorney

The instrument was developed following a literature review, focus group discussions, expert review, and pilot testing. The existing literature and legal constructs were reviewed. These resources included studies focused on the mental capacity of patients with cognitive impairment, instruments for the assessment of mental capacity, EPAs, and legal tests of mental incapacity for the creation of EPAs as defined under Section 2 of the Enduring Powers of Attorney Ordinance (Cap. 501) and Section 1A of the Powers of Attorney Ordinance (Cap. 31) of the Laws of Hong Kong.⁴ Most previously developed instruments focused on assessing 4 decision-making abilities: understanding, appreciation, reasoning, and expressing a choice.¹⁰ Local studies also suggested that these 4 decision-making abilities could be reliably assessed in the Chinese population.^11,12

The structure of the instrument was designed to test these decision-making abilities. An initial version of the instrument was drafted and named the Capacity Assessment to Sign an Enduring Power of Attorney (CASEPA). It consisted of 22 items, with 11 items for ‘understanding', 1 for ‘appreciation', 9 for ‘reasoning', and 1 for ‘expressing a choice'.

Three focus groups were organised to evaluate the comprehensiveness and readability of the CASEPA. One group consisted of 8 mental health professionals, including nurses, occupational therapists, physiotherapists and medical social workers, who were specialised in psychogeriatric care in Tai Po Hospital, Hong Kong. The second group consisted of 8 health care workers in centres for elderly care, and the last group consisted of 8 cognitively normal older persons who attended the elderly care centres of a local non-governmental organisation. The focus groups were moderated by the principal investigator (PI), but were held separately so that the groups would not influence each other. Three questions were asked:

1. ‘What would you suggest to improve the comprehensiveness of the CASEPA?'

2. ‘What would you suggest to improve the readability of the CASEPA for elderly persons?'

3. ‘Do you have any other comments?'

After the focus group discussions, 2 modifications were made. First, information about the general power of attorney was added to help the elderly understand the difference between a general power of attorney and an EPA. Second, layman's terms instead of jargon were used, such as ‘confused' to replace ‘mentally incapacitated', so that questions could be more easily understood by the elderly.

The CASEPA was then reviewed in terms of its content validity by an international expert in mental capacity and psychiatry in the United States and by 5 local experts in the fields of mental health, law, psychiatry, psychology, and geriatrics. Five questions were asked of these experts:

1. ‘What do you think about the comprehensiveness of the CASEPA?'

2. ‘What do you think about the readability of the CASEPA?'

3. ‘What do you think about the sequence of the questions?'

4. ‘What do you think about the overall procedure of the CASEPA?'

5. ‘Do you have any other comments?'

Written feedback was obtained. The main suggestions offered were as follows. First, for the evaluation of ‘understanding', it was suggested that the item concerning the exploration of alternative financial plans be deleted as it was not considered important. Second, for ‘appreciation', it was suggested that a question be added to determine whether the subject acknowledged the consequences for his or her own situation if he or she did not sign an EPA. Third, for ‘reasoning', it was suggested to combine the items on ‘consequential reasoning' and ‘generating consequences', as these kinds of reasoning involved similar consequences.

Fourth, for ‘specific choice reasoning', it was suggested that the evaluation include an overall rating to all 5 questions, as this would examine whether the subject could consistently explain the 5 specific decisions made in his or her EPA. The CASEPA was modified accordingly.

To evaluate its clinical applicability, the modified version of the CASEPA was then pilot tested on 10 Chinese elderly persons who had various degrees of cognitive impairment. The participants attended the psychiatric day hospital of North District Hospital or had been admitted to the psychiatric ward of Tai Po Hospital, Hong Kong.

The final version of the CASEPA comprised 17 items: 10 items for ‘understanding', 2 for ‘appreciation', 4 for ‘reasoning', and 1 for ‘expressing a choice'. The interview framework is shown in Table 1. The interview scripts, the record form, and the rating guidelines were both finalised. The CASEPA was originally developed in English and then translated into Chinese by a bilingual researcher. The validation was conducted using the Chinese version.

The CASEPA, so developed, is a semi-structured interview that provides relevant information about an EPA and evaluates mental capacity along 4 decision- making abilities: understanding, appreciation, reasoning, and expressing a choice. ‘Understanding' is the ability to comprehend the relevant information disclosed about the EPA; ‘appreciation' is the ability to relate the information to one's own situation; ‘reasoning' is the ability to process the information in a logical fashion towards a decision; ‘expressing a choice' is the ability to communicate a decision and to sign or decline to sign an EPA. The CASEPA interview began with a disclosure of the relevant information about an EPA including its nature as well as possible benefits and risks. The interviewer then asked questions to assess the participant's ability to understand, appreciate, and reason about the disclosed information. It concluded with the participant expressing a choice about whether or not to sign his or her EPA and explaining how the choice was made. The CASEPA interview typically took 10 to 15 minutes and was audio-recorded and rated for quality of response. Ratings for each item included 2 (adequate), 1 (partial), and 0 (inadequate). Rating guidelines with specific criteria and examples were provided to guide the ratings. Each decision-making ability yielded a respective score. The scores ranged from 0 to 20 for understanding, 0 to 4 for appreciation, 0 to 8 for reasoning, and 0 to 2 for expressing a choice. Higher scores indicate greater ability. No overall score was calculated because significant deficits in even 1 ability item could result in mental incapacity, even when the performance of other abilities was intact.

To determine the inter-rater reliability of the CASEPA, 20 recordings were rated by the research assistant, the PI, and a geriatric psychiatrist experienced in mental capacity assessment.

Clinician Ratings

Theoretically, the only ‘gold standard' for assessing mental capacity is the judicial decision of a court of law.¹³ Nonetheless in practice, the majority of determinations of diminished capacity are probably made outside of the courtroom, by clinicians, attorneys, adult protective service workers, or other professionals working with the elderly population.¹⁴ In this study, clinician ratings were used to assess the mental capacity to sign an EPA, because this was consistent with the current practice. It is also required by law that a donor's mental capacity to sign an EPA must be certified by a medical practitioner. This assessment method has been supported by other mental capacity studies.^11,12 The clinical judgements were based on the legal test of mental incapacity for the creation of an EPA as defined under Section 2 of the Enduring Powers of Attorney Ordinance (Cap. 501) and Section 1A of the Powers of Attorney Ordinance (Cap. 31).⁴ In essence, the certifying practitioner should be satisfied that the donor understands the implications of an EPA, is capable of making the decision, and is able to communicate his or her wish to grant an EPA.¹⁵ The concurrent validity of the CASEPA was determined by evaluating the correlation between the clinician ratings and the decision-making abilities as assessed by the CASEPA.

Procedure

The project was approved by the Joint Chinese University of Hong Kong[-]New Territories East Cluster Clinical Research Ethics Committee (CREC Reference No. 2013.329). All participants provided written informed consent before they were interviewed. The interviews consisted of recording the participant's socio-demographic data including age, gender, and years of education. At the beginning of the mental capacity assessment, a hypothetical situation was described. It was proposed that the participant had started to experience forgetfulness, and wanted to sign an EPA to appoint someone else to look after his or her financial affairs in the event of subsequent mental incapacity. The subject, bringing his or her EPA drafted by a lawyer, had come to the medical practitioner for the mental capacity assessment and certification by a witness. To simulate an almost actual practice, the participant's own EPA was drafted using a simplified version of the EPA form. The standardised information concerning an EPA, including its nature and possible benefits and risks were explained to the participant. The CASEPA interviews were then conducted, audio-recorded, and rated. A separate clinical interview for assessment of mental capacity to sign an EPA was arranged for the clinician ratings. Participants were rated as ‘fully incapable', ‘incapable', ‘capable', or ‘fully capable'. Fifteen of the participants were interviewed by both the PI and an experienced geriatric psychiatrist to assess their mental capacity to sign an EPA.

Data Analyses

Data analyses were performed using the Statistical Package of the Social Sciences (Windows version 20.0; IBM Corp, Armonk [NY], United States). Demographic characteristics and the CASEPA performance of participants were compared between 3 groups according to their global CDR score. One-way analysis of variance was used to compare the parametric variables. The Kruskal-Wallis test was used to compare non-parametric variables. Chi-square test or Fisher's exact test were used to compare categorical variables. The use of non-parametric or parametric tests depended on the nature of the variables and their distribution. An alpha level of 0.05 was considered significant.

The psychometric properties of CASEPA were explored. Concerning its reliability, the internal consistency of CASEPA ability scores for understanding, appreciation, and reasoning were assessed using Cronbach's alpha. The inter-rater reliability was examined using the intraclass correlation coefficient. The concurrent validity was explored by determining the relationship between the CASEPA ability scores for understanding, appreciation and reasoning, and the clinician ratings as determined by the

Spearman correlation.

Results Demographic and Clinical Characteristics of Participants

A total of 100 participants were recruited and interviewed. Of these, 85 agreed to sign an EPA. In practice, only those who agree to sign an EPA will approach a medical practitioner for the mental capacity assessment, and the CASEPA is designed as an assistive instrument for assessing mental capacity to sign an EPA. Therefore we only analysed participants who agreed to sign an EPA.

The mean (± standard deviation) age of the participants was 76.2 ± 6.4 years. Among the participants, 70 (82.4%) were female and 15 (17.6%) were male. The median duration of education was 6.0 (range, 18; interquartile range, 2.00-9.00) years.

Among the 85 assessed participants, 33 (38.8%) showed no signs of dementia (CDR = 0), 22 (25.9%) having very mild dementia (CDR = 0.5), and 30 (35.3%) with mild dementia (CDR = 1). Demographic characteristics of participants based on CDR ratings are shown in Table 2.

Psychometric Properties of the Capacity Assessment to Sign an Enduring Power of Attorney

The CASEPA performance of participants is shown in Table 3. The intraclass correlation coefficient (ICC) was 0.93 for understanding, 0.87 for appreciation, and 0.84 for reasoning. The Cronbach's alpha was 0.75 for understanding, 0.74 for appreciation, and 0.86 for reasoning. Based on clinician ratings, 38 (44.7%) of the participants were rated as fully capable, 32 (37.6%) as capable, 10 (11.8%) as incapable, and 5 (5.9%) as fully incapable. The ICC of clinician ratings was 0.78. As shown in Table 4, the clinician ratings correlated significantly and positively with the CASEPA ability score for understanding (r = 0.74, p [lesser than] 0.001), appreciation (r = 0.73, p [lesser than] 0.001), and reasoning (r = 0.73, p [lesser than] 0.001).

Discussion

The CASEPA developed in the study is a semi-structured interview that provides the subject with relevant information about an EPA and evaluates the subject's mental capacity to sign an EPA in terms of 4 decision-making abilities: understanding, appreciation, reasoning, and expressing of a choice. This study examined the psychometric properties of the CASEPA, namely its reliability and concurrent validity. The reliability of the CASEPA was examined in terms of inter-rater reliability and internal consistency. The inter-rater reliability for the CASEPA ability scores for understanding, appreciation, and reasoning (as measured by ICC) ranged from 0.84 to 0.93. These results are comparable to the figures reported by other mental capacity studies.^11,16

The reliability of the CASEPA may have been related to its detailed interview scripts and clear rating guidelines.

The internal consistency of the CASEPA ability scores for understanding, appreciation, and reasoning (as measured by Cronbach's alpha) ranged from 0.74 to 0.86. These results indicate that the items included in each ability were highly consistent and that a single construct was being measured for each of these abilities.

The concurrent validity was determined by evaluating the correlation between clinician rating and the decision-making ability score provided by the CASEPA. The CASEPA ability scores for understanding, appreciation, and reasoning correlated significantly and positively with clinician ratings. The strength of this correlation (as measured by r) ranged from 0.73 to 0.74 and suggested a strong correlation. Mentally capable participants performed significantly better in the CASEPA assessment of decision-making abilities than the mentally incapable participants.

This study had several limitations. First, the sample size was relatively small, and only a scenario involving an attorney was used. Further studies can be done using other scenarios, for example, with [greater than] 1 attorney. Second, a hypothetical situation was adopted when assessing the mental capacity to sign an EPA. The participants recruited were not real clients who wished to sign a real EPA. The effect of hypothetical information disclosure on the assessment of decision-making capacity is unclear.¹⁷ To minimise the possible effect of responses to a hypothetical situation, only participants who agreed to sign an EPA were analysed. It was assumed that data from those participants would have a higher level of validity, because the information disclosed was more meaningful to them. Nonetheless it is possible that this introduced a selection bias. People who agreed to sign the EPA may have had a better understanding of its purpose and effect, thus making them more willing to sign. Although this kind of selection bias should not affect the psychometric properties of the instrument, it might have altered the distribution of CASEPA ability scores, which would make these scores less representative of the general population of elder persons in Hong Kong. Third, the education status of the participants in this study was much lower than in other studies conducted in western countries. Caution may be needed in applying the findings of this study to populations with higher educational backgrounds. Nonetheless this limitation should be balanced against the existing profile of patients with dementia in the local community. In our study, participants with greater cognitive impairment were mainly older and had fewer years of education. The finding was consistent with the results of a local epidemiological survey suggesting that older age and lower level of education were associated with higher risk of developing dementia.¹

To the best of our knowledge, this study is the first to systematically develop an interview schedule to assess the mental capacity of Chinese older persons to sign an EPA. The study offers initial support for the reliability and validity of the interview schedule. It also provides a better understanding of the mental capacity to sign an EPA in the local population. The results of this study will inform future studies about how clinicians can apply the instrument or adapt the findings regarding the capacity to enact an EPA for participants with different socio-demographic or clinical backgrounds. The content validity was examined by an international expert in mental capacity and psychiatry in the United States and by 5 local experts in the fields of mental health, law, psychiatry, psychology, and geriatrics. Comments from experts in different fields, both locally and internationally, were collected. For the validation of the CASEPA, participants were recruited from the community rather than from a health care setting. Therefore, a more representative sample of the population was obtained. In this study, an attempt was made to simulate the real clinical practice. The clinical applicability of the CASEPA was supported.

The CASEPA was shown to be a reliable and valid semi-structured instrument for assessing the mental capacity to sign an EPA. It should be acknowledged that like other mental capacity assessment instruments, the CASEPA is not designed to determine mental capacity on its own and can never replace good clinical evaluation. Due to the interactive and contextual nature of mental capacity, a test score alone cannot substitute for a professional clinical judgement, and it can never take account of the variety of medical, legal, ethical, and other factors that inform a capacity decision.¹⁸ The determinations of required performance levels in assessing each decision-making ability are themselves value judgement. If the consequences of an individual's decision to sign an EPA are deemed very complex or risky, a higher level of decision-making abilities will be required. Therefore, the required standard for mental capacity is context-dependent, and should be tailored to the needs of the individual. Although no single cut-off score is calculated, a low score in any domain identifies deficiency in the relevant abilities and may indicate a mental capacity problem. Further studies should be conducted to determine further clinical meaning of the scores in each domain. Nonetheless when a person's mental capacity to sign an EPA is in question, the CASEPA can serve as a useful component of the data needed for legal proceedings, as it provides documentation of the information disclosed, the enquiries involved and the responses of the individual. The CASEPA helps clinicians to explain to others how the final clinician judgement was made. Moreover, it requires only about 10 to 15 minutes to administer the Chinese version of CASEPA, and this study found no major difficulty in using the instrument. This ease of use supports its use in the clinical setting. The use of the CASEPA also has certain costs, and some brief training is required.

The CASEPA may also have an educational purpose. It is interesting to note that 85 out of 100 participants agreed to sign an EPA, and some participants even considered creating their own EPA with lawyers afterwards. Perhaps the CASEPA assessment helped participants to gain more awareness and understanding of EPAs.

Conclusion

A proper assessment of mental capacity to sign an EPA is very important and needs to be performed with great care. The CASEPA was developed with this aim in mind. Its structure was based on the examination of 4 decision-making abilities: the ability to understand relevant information, the ability to appreciate the situation and its consequences, the ability to reason about different options, and the ability to communicate a choice.¹⁵ The CASEPA was shown to be a reliable and valid instrument. It is a potentially useful instrument for assessing the mental capacity of Chinese older persons to sign an EPA. Further use of the CASEPA should be explored in other clinical populations and in different cultures.

Acknowledgement

The authors declared no source of financial support for the study. We would like to express our gratitude to the expert panel including Prof. Paul S Appelbaum, Mr Charles CY Chiu, Prof. ST Cheng, Dr Alexander CB Law, Dr Jenny SW Lee, and Dr Jess LM Leung for their comments on developing the CASEPA.

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