Dr. David Margolin has a rare perspective on the issue of Mental Capacity; he is not only an attorney, but also a medical doctor who holds a Ph.D. in Psychology. He graduated from San Joaquin College of Law with Distinction in 2011, passed the bar on his first try, and is currently on the faculty of SJCL, where he hopes to teach an elective focusing on decision making capacity and informed consent. He has recently published an article on the possible individualization of The Capacity Declaration, and gives us a quick synopsis below.
The California Capacity Declaration—Conservatorship and Dementia Patients: A Physician’s Perspective
(California Trusts And Estates Quarterly, Volume 18, Issue2, 23-25, 2012)
By David I. Margolin, M.D., Ph.D., J.D.
When evaluating a conservatee/proposed conservatee’s ability to make informed medical decisions a court relies in part on The Capacity Declaration—Conservatorship (Judicial Council Form GC-335). This form is usually completed by a physician who has evaluated the conservatee. The Declarant’s two choices on the form are absolute and opposite: either the conservatee has the capacity to give informed consent to any form of medical treatment, or lacks the capacity to give informed consent to any form of medical treatment.
These two choices are not adequate because many conservatees have dementia, and most patients with dementia have decreased capacity to give informed consent, but not total incapacity. In the interest of accuracy and fairness, a physician might choose to make a qualified, individualized statement about the patient’s capacity, rather than declare the patient as either fully capable of giving informed consent to medical treatment, or completely lacking in that capacity. Other suggestions are made for improving the form. Several patients with different levels of dementia severity are described in order to illustrate how a treating physician might approach completing the Capacity Declaration in an individualized fashion.
Dr. David Margolin (left) and Deputy D.A/Clovis City Council Member Bob Whalen share a moment backstage before commencement ceremonies on June 1st. Margolin took to the stage as one of several faculty representatives while Whalen was among the SJCL Board members in attendance.