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What Is Incapacity?
 

Incapacity Defined by Statute
 

Oklahoma’s Protective Services for the Elderly and for Incapacitated Adults Act, 43A O.S. §10-103(A)(4)(a) defines an incapacitated person as “any person eighteen years of age or older who is:

  • impaired by reason of mental or physical illness or disability, dementia or related disease, mental retardation, developmental disability or other cause, and
  • whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such as extent that such person lacks the capacity to manage his or her financial resources or to meet essential requirements for his or her mental or physical health or safety without assistance from others[.]”

“Essential requirements for mental or physical health and safety” are defined as “those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which physical injury or illness to the vulnerable adult is likely to occur” 43A O.S. §10-103(A)(3)

A person is incapacitated when, due to a disabling condition, he or she is unable to receive and evaluate information effectively or communicate decisions, resulting in an inability to manage financial affairs, meet basic needs or protect him or herself from harm.

 

The most extreme type of incapacity is a persistently unconscious or vegetative state (PVS). A person in a PVS is in a deep and permanent unconscious state and has very little brain activity. He or she is capable of making only involuntary and reflex movements. People in a PVS state cannot feel hunger, thirst or pain and will never wake up or regain health.

 

Dementia is another form of incapacity. Diseases that lead to dementia, such as Alzheimer's, cause a gradual and irreversible loss of mental and physical abilities such as speaking, recognizing loved ones, eating or walking.

 

In addition to a medical diagnosis, criteria on which to base an evaluation of capacity include:

  • functional strengths and weaknesses – how well a person can care for himself independently
  • cognitive and decisional strengths and weaknesses – how well a person can understand information, make rational choices and communicate those choices to others
  • consistency of choices with lifetime values and preferences – how consistent a person’s current actions and decisions are with his or her past choices
There is no bright line determination of incapacity. Capacity is always measured in terms of specific tasks or actions. A person may have capacity to take some actions, such as writing a will or handling daily finances, but lack the capacity to carry out other transactions, such as engaging in complicated business transactions. Likewise, a person may be capable some of the time but incapacitated other times, due to changing medical conditions, drug or alcohol abuse, or side effects of medication.