Legal and Ethical Aspects in the Care of the Elderly with Mental Disorders – Assessing of Capacity


Psychiatry Ambulator Clinic, Department of Psychiatry, Romania


The physician who deals with elderly with or without mental disorders has to cope with a number of ethical dilemmas and medical challenges in caring them, assuring them the best quality of life as it is possible.

The short review of ethical aspects in forensic geriatric psychiatry has only introduced some of the complex matters raised by forensic consultation, assessment of their capacity   and expertise.

With the increasing prevalence of dementia, issues of competency have become very important. Society is interested in maintaining the autonomy and well-being of its aging citizens and to protect them from risks and dangers caused by their declining capacities.

Some of our patients, particularly older people with dementia, may not be able effectively to represent their interests and manage their affairs. This is particularly problematic for patients who are alone and where there is a conflict between individual and carers’ interests.

We discuss about the mental capacity and global and specific competence and also about the non-competence due to mental disorders, especially dementia. Testamentary capacity and undue influence are constructs rooted in both the legal and medical domains, thus inviting a collaborative approach to its definition and assessment. Assessing testamentary capacity in the terminal phase of an illness or at a person’s deathbed is fraught with challenges for both doctors and lawyers. Assessing capacity is also important in preparing an advance directive, for an advance directive to be valid, the person must have capacity.

The incompetent person cannot understand, appreciate and decide on specific issues of one’s daily life. When the patient is non-competent or partially non-competent the others should make the decisions on his behalf.

Older people with mental disorders are particularly vulnerable to neglect and abuse, they may experience the double jeopardy of stigmatization due to mental disorders and due to being old. In some clinical situations, a conflict between different ethical principles may occur, and professionals and caregivers need to be aware of this. It is necessary to ensure relevant education and further training of forensic psychiatric experts, who need to constantly expand their professional knowledge and experience. The psychiatrist can be between what may be legally right and what may be ethically right.