Is guardianship appropriate if capacity is inconsistent but not absent?
My mother recently suffered multiple strokes and now has significant short-term memory loss. She cannot reliably answer standard orientation questions (date, year, etc.), and based largely on that, the hospital is labeling her “mentally incompetent” and moving toward guardianship.
What’s concerning to me is that her capacity doesn’t seem globally impaired. She is able to understand information when it’s explained to her, engage in conversations appropriately, and acknowledge both her condition and the fact that something is wrong with her memory. The issue appears to be retention, not comprehension.
There’s also a complication with decision-making authority: her designated health care proxy is her ex-boyfriend. They’ve been broken up for about 3 years, he’s non-responsive, and she never updated the document. At this point, she’s not being allowed to execute a new proxy.
My understanding is that capacity is supposed to be decision-specific and that guardianship is intended as a last resort when less restrictive alternatives aren’t viable. In this case, it feels like the determination may be relying heavily on orientation questions rather than a more functional assessment of her ability to understand and express choices.
Has anyone dealt with a situation where capacity is impaired but not absent? I live in Massachusetts if that helps!