Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships
47 Pages Posted: 1 Apr 2018 Last revised: 22 Nov 2018
Date Written: 2018
Whether to remove a person’s decision making authority in a guardianship proceeding is one of society’s most weighty determinations. As much as we value individual autonomy, we will strip that autonomy when a person is deemed legally “incompetent.” This competency determination has traditionally relied, almost exclusively, on clinical assessments of cognitive and functional abilities, based mainly on observed behavior. But developments in neuroscience — and particularly the advent of physiological biomarkers of Alzheimer’s disease — require us to think about a broader approach to competency determinations. Coupled with behavioral data, information from diagnostic biomarkers can add significant value to the competency determination. This article discusses the potential benefits and risks of use of this evidence in the competency determination, concluding that we need to anticipate its introduction into the equation, but with care to avoid overvaluing the evidence.
Keywords: Neuroscience and Law, Elder Law, Evidence, Probate, Civil Competency, Guardianship
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