2016: Decision making and legal capacity in dementia
Consent to medical treatment
The law in Greece (article 11 and 12 of Law no 3418/2005 “Code of Medical Ethics”) demands the informed consent of the patient before the conduct of any medical treatment by a doctor. In order for the patient’s consent to be valid the following provisions have to be met: 1. the information provided by the doctor has to be full, accurate and comprehensible, 2. the patient has to be capable of giving the consent, 3. the consent is not a result of error, fraud or threat, 4. The consent has to fully cover the content of the medical act, as well as the time of its conduct. However, for trivial interventions which do not involve any risk, consent can be presumed (Goffin et al., 2007).
Consent to treatment (for people with incapacity)
If the patient does not have the capacity of giving his/her consent to the medical treatment, the consent is provided by his/her legal guardian, if he/she has been appointed. If there is no legal guardian, the consent is provided by the relatives of the patient. In any case the doctor has to try to ensure the participation and cooperation of the patient, especially of the one that is capable of realizing his/her health situation, the content of the medical treatment, its dangers and its results.
In case of emergency the consent of the patient can be omitted, as well as in case of suicide or when the relatives or third parties who have the power to give the consent of the patient, who is for any reason incapable of providing it, deny to give it and there is the need of direct intervention in order to prevent the danger for the life or the patient’s health.
The person who has a legal guardian is not always incapable of consenting to medical treatment. There are cases in which the patient has a legal guardian, but has not been deprived of the right to take care of oneself and as a result one can validly give one’s consent, unless the Court has explicitly deprived one from the right to give one’s consent to medical treatment or one has no consciousness of one’s deeds. When the adult patient has a legal guardian and is not capable of giving his/her consent, the consent is provided by his/her legal guardian, who acts according to the best interest of the person, as he understands it according to his/her reasonable judgement.
The right to refuse treatment
Article 47 (3) of the Hospital Act of 1992 grants every patient the right to refuse consent to any diagnostic or therapeutic procedure but this is presumably limited to patients who have the capacity to consent and presumably extends to the legal representatives of those who do not.
Article 9 of the Biomedicine Convention is applicable with regard to previously expressed wishes because article 12 of the former Code of Medical Deontology, which forbade doctors from taking into account previously expressed wishes, was not included in the Code of Medical Ethics of 2005 which replaced it, and as Greece had ratified the Convention without any reservation regarding article 36.
Where there is no consent, the medical treatment is considered to be unauthorized and the patient has the right to claim any damages caused by the medical treatment that took place without his/her consent.
Consent to research
Article 47 of the Hospital Law of 1992 (2071) states that the patient must feel free to decide whether he/she wants to take part in research or training. Consequently, consent must be obtained and can be withdrawn at any time. This applies to the patient’s proxy if the patient is totally or partially incapacitated.
According to article 29 par. 2 of the Code of Medical Ethics: “2. The doctor takes into account the wills, that the patient had declared, even if, at the time of the medical intervention, the patient is not capable of repeating them.”
According to article 9 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Law2619/1998): “The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.”
The advanced directives are not legally binding for the doctor or for the patient’s relatives or his Guardian. The Greek law does not regulate the form or the content of the advanced directives. Their existence does not override the doctor’s obligation to do everything necessary in order to keep the patient alive and generally to apply the medical rules at the patient’s interest.
The doctor shall comply with the patient’s consent, which is invalid if it is given in advance and at different circumstances, expressed only as a will, as the patient could change his will in case of his life danger. The validity of the consent and the denial of the consent is examined at the time exactly prior to the medical act and in relation to the circumstances, even if the patient had other beliefs during their lives.
If the patient is in an emergency and cannot validly give his consent, the urgent medical act is performed without the consent of his relatives (article 12 par. 3a of the Code of Medical Ethics). If the patient’s incapability of validly consenting to medical acts is permanent, there is a need to appoint a Guardian and as a last resort, if this is not feasible, to ask the consent of the relatives.
Concluding there is a demand that the issue of advanced directives is regulated by a law in Greece in order to reassure the principle of the legal certainty, as the above mentioned regulations are too general and not binding [Fountedaki, A., Health Care Proxy and Living Wills. The regulatory Deficit of the Greek law, in Patient Choices and medical decisions at the end of life. Living wills and Health Care Proxy, ed. Sakkoulas (in Greek), p. 13/24, Sachoulidou, A., The expression of the will of the patient that concern the end of his life, Living Wills: Between Regulation and Deregulation, in the Beginning and the End of Life, Ethical, Medical and Legal issues, ed. Nomiki Vivliothiki (in Greek), p. 141/169, 167].
Issues surrounding the loss of legal capacity
The lack of legal capacity is regulated in articles 128 and 129 of the Greek Civil Code. The system of the Greek Civil Code aims to protect the autonomy of the person; sets limits to the legal capacity of the person only when this is necessary. Consequently, there are three categories of legal incapacity: 1. Constant and absolute legal incapacity (128 Greek Civil Code), that is applied to persons who are in the state of legal guardianship of total deprivation, 2. Temporary absolute legal incapacity (article 131 par. 1 GCC), 3. Limited legal incapacity, that is applied to persons that are in the status of legal guardianship of partial deprivation or subsidiary legal guardianship.
A person is declared legally incapacitated if s/he is incapable of taking care of him/herself or property due to a permanent mental illness which eliminates the use of reason or due to physical disability (particularly if the person had been born deaf, blind or dumb). Incapacitation is declared by the judicial decision of a Court of Law and can be requested by means of a petition by any member of the family, the spouse, guardian, tutor or Public Prosecutor. This is dealt with in article 1688 of the Civil Code.
However, according to article 802 of the Civil Procedure Code, any person who has a lawful interest can nominate a trustee and this person has the right to make a petition for incapacitation. This extends the number of people who are authorised to make such a request. The opinion of the family council must be included with the petition. The spouse of the person who is to be incapacitated as well as the person making the request attend the council in order to provide information on the person but they cannot take part in the decision-making process or give their opinion. Once a person has been declared incapacitated, s/he is incapable of any legal act.
According to article 1705 of the Civil Code, if the mental disorder is not sufficiently severe to warrant incapacitation in that the person concerned has not lost full use of the senses but there is a weakness of the mind, the person is liable to judicial receivership. This also applies in the case of physical disability which does not cause total disability or prevent the person from taking care of him/herself or managing his/her own affairs. The same procedure for judicial incapacitation (involving a petition) applies to judicial receivership, as does the procedure for termination, although in both cases termination is unlikely in the case of dementia.
In case a patient with dementia is incapable of expressing his will, enters into a contract, in order to decide whether this is valid or invalid according to articles 130 and 131 of the Greek Civil Code, one has to also examine whether the is a Guardian or not.
If a person in the state of legal guardianship of total deprivation enters into a contract on the contrary to the Court Decision that appoints the Guardian, the contract is absolutely invalid (art. 130 and 128 par. 2 Greek Civil Code). This means that whoever has legal interest can claim the invalidity of the contract, even the person in the state of the Guardianship.
If a person is in the status of legal guardianship of partial deprivation, enters into a contract that is forbidden by the Court Decision that appoints the Guardian, the contract is also invalid as above (art. 128 par. 2, 129 par. 2, 130 and 1676 par. 1 of the Greek Civil Code).
If a person in the status of total or partial subsidiary legal guardianship, enters into a contract without the consent of his Guardian, the contract is invalid (133 and 1683 of the Greek Civil Code). However, this invalidity is relative, as it can be claimed only by the person’s Guardian.
In the above cases the contracts are invalid even if the person entered into them at a phase of “lucidum intervallum”, i.e. the patient entered into the contract at a phase that he had regained his consciousness.
If the person that suffers from Alzheimer’s has no Guardian and enters into a contract and at the time he entered the contract he lacked of consciousness or his illness prevented him from freely expressing his will, then the contract is absolutely invalid (article 131 Greek Civil Code). This invalidity can be claimed by whoever has legal interest.
Proxy decision making
As far as the guardian is concerned in Greece we don't have follow ups or updates of his/her actions. There should be a document, like the relevant ones of the IRS, to be filled in by the guardian once a year in order to make public all the money transactions and spendings with the money of the salary or the pension, or the real estates, that underwent on behalf of the person with Dementia under his guardianship. Moreover, in Greece there isn’t an Attorney General for adults only for the under aged.
Conditions for the appointment of a guardian
The court which decides to put a person under guardianship, according to article 1676 of the civil code has the following three possibilities:
To declare him incompetent for all or certain legal acts (full or partial custodial guardianship) and to declare that it is impossible to act in person. In that case all or some of the transactions will be attempted by the judicial supporter as his/her legal representative.
To submit him/her to an ancillary/subsidiary guardianship and to designate this for all or some of the transactions, the consent of the judicial supporter is required.
To decide the combination of the two previous settings.
How guardianship is arranged
The process for incapacitation is closely linked to that of setting up guardianship. According to article 1667 of the civil code, regarding submission to guardianship, responsible to decide is the court after the request of the man wishing to undergo guardianship. The persons that could further submit this request are his/her spouse, parents, children and the prosecutor or ex officio.
Who can be a guardian
According to article 1669 of the civil code the court appoints as judicial supporter the person who has been proposed from the individual undergoing guardianship, provided that the latter is over 16 years old and the person proposed is deemed adequate. If the person who is undergoing guardianship has not suggested any person or the person proposed is not adequate, the court decides for the suitable person, after taking into account his/her will to exclude specific persons and always considering the best interests of the person concerned. The court considers however any ties with relatives particularly parents, children, spouse as well as the risk for any existing opposition of interests between him/her and the person is going to be appointed.
The duties and responsibilities of guardians
1. A person who has been declared incapacitated (and hence has had a guardian appointed) loses the right to carry out any legal act.
2. A person under judicial receivership must obtain the consent of the legal counsellor for the following acts:
- Appear in court.
- Make or receive a payment.
- Sell immovable assets, government shares or company bonds.
- Establish alliance or arbitration agreements.
- Assume foreign obligations, in particular providing guarantees.
- Accept or renounce an inheritance.
- Renounce a bequest.
- Accept a bequest or gift that involves burdens.
The judicial counselor can consent in writing before the act. If he/she refuses to consent the person under judicial receivership can appeal to the court which is then responsible for the final decision (article 1708 CC). The legal acts that have been attempted without the consent of the legal counselor are null and void. Nulling can be proposed by i) the judicial supporter, ii) the person under guardianship, iii) the catholic and special successors (article 1683 of the civil code).
How the financial affairs of the ward are handled?
In the article 1682 of the civil code is underlined that in any case of guardianship of incapacitated adults the provisions for minors are analogically applied. All the acts of legal counselor are under supervision of a board from three to five members, appointed by the same decision that appoints the legal counselor, and is composed of family members and friends.
Duration of guardianship
If the reasons which led to incapacitation are no longer valid, it can be terminated by judicial decision.
Powers of Attorney and lasting powers of attorney
There are no special provisions in Greek law but also in Dutch law concerning powers of attorney or continuing powers of attorney. On the contrary, other European countries like United Kingdom, France, and Germany have legislated them in their legal systems.
The necessity to legislate this possibility apart from guardianship (articles 1666-1688 of the civil code) is imperative. People who are no longer able to handle their property or deal with other affairs must have the opportunity to write a power of attorney, which could be in operation when they lose their mental capacity and they cannot because of that be able to handle their own tasks and protect their interests.
Some matters that should be settled from the Greek legislator, concerning this parameter are the following:
Under which conditions must this law be adjusted? When the person has his/her capacity or only when he/she has lost it? In this case the law would only serve his future protection?
At which age could a person compose the document in order to be valid? Is the power of attorney created as a result of threat, fraud, or under physical/psychological pressure? In that case, the document should not be valid.
Who can be a proxy? Every person who is legally capable and is at least 18 years old). Furthermore, the law should specify who cannot be appointed as a proxy. Namely, every person, who is under bankruptcy, mentally incapable, under the age of 18, or has any relation to the person who writes the power of attorney, is unsuitable of fulfilling this duty.
In which cases the person can extend, change or revoke the document?
How many people can be appointed as proxies for the same person? Should be only one or could be more? In case of more than one, how they should decide, in order to arrange the matters for which they are responsible.
The measures to protect the applying person from the power of attorney. First of all, the decisions of the attorney must be only for the benefit of the person who appoints the proxy. In order the previous condition to be reassured, there should be a supervising body that will be responsible to censure the acts of the proxy and his management accounts.
Particular attention should be given by the law for terminating the validity of the power of attorney, when one of the followings takes place: the applying individual or the proxy dies, the proxy becomes mentally incapable, bankrupt or revoked and there are no provisions in the power of attorney for his/her replacement.
Capacity In Specific Domains
Marriage and divorce
People with dementia who have been declared incapacitated cannot marry or divorce. There have been numerous cases of divorce due to undiagnosed cases of Alzheimer’s disease but once the divorce has been granted, it cannot be annulled. On the other hand, the former spouse may claim and be granted guardianship as well as supervision of the spouse who is suffering from dementia, especially when there are children and none of the other family members have any objections.
If a person carries out an act, which by law requires the consent of a judicial counsellor, and consent was not obtained, the act can be declared null and void (art. 1709 CC). Only the counsellor, the person under judicial receivership and his/her universal and special successors can recommend nullity. The heirs of a deceased person can appeal against non-gratuitous legal acts that were carried out by or against him/her on the grounds of insanity (art. 1695 of CC) if:
• the person had been declared incapacitated during his/her lifetime;
•the legal act was attempted at a time when the person was receiving treatment in a lunatic asylum;
•the legal act which is under dispute is in itself proof of lunacy.
Contractual capacity and the growing numbers of elders in modern societies create many questions concerning whether elderly people (with and without dementia) are able to participate in legal contracts like sales, purchases, loans, leases, donations and testaments (Demakis, 2012; Marson, 2001). In recent years, an attempt is made to propose a theoretical model aiming at quantifying this complex capacity through a neuropsychological prism (Marson, Hebert, & Solomon, 2011; Marson & Zebley, 2001), but until recently financial capacity was equated to simple numerical skills, while there are no data available from other countries except for the USA (Marson, 2013). In Greece there is a growing interest on the topic, but still there are scarce relevant empirical data (Giannouli & Tsolaki, 2014). It seems that the majority of elder Greek patients are experiencing difficulties with different skills that relate to transactions concerning property law (Giannouli, 2015). More specifically even individuals with MCI show difficulties which are significantly different when compared with the normal individuals, something that is in accordance with findings from other cultural environments for MCI patients (Rozzini et al., 2003; Sherod et al., 2009; Triebel et al., 2009). The finding of clinically important financial capacity difficulties in addition to the finding of a very strong positive relationship between the MMSE scores and a new specific Greek neuropsychological test (Legal Capacity for Property Law Transactions Assessment Scale, LCPLTAS), may be a valuable asset for mental health professionals and lawyers interested in the civil law-related behavior of those individuals.
The Greek Inheritance law is regulated by articles 1710 to 2035 of the Greek Civil Code. There are three types of will:
• A holographic will which is handwritten, dated and signed.
• A public will which is made before a notary in the presence of three witnesses.
• A secret will which is handed in a sealed envelope by the testator to a public notary in the presence of three witnesses. For public and secret wills, the three witnesses can be replaced by another notary and one witness.
Any person over the age of 18 and of sound mind may make a will. Consequently, a person who has been declared incapacitated cannot make a will.
If a person dies without having made a will, his/her assets are divided amongst his/her next of kin according to a predetermined order of eligibility because Greece has a system of forced heirship (AngoInfo, 2010).
There are no provisions in the Penal Code or Civil Code concerning legal responsibility in the case of mental incapacity. Nevertheless, a person who has been diagnosed as having dementia who commits a crime is not prosecuted or punished as s/he is considered to be lacking mental capacity.
If the crime was committed before the diagnosis of dementia, but the court case takes place after diagnosis, a post-dated certificate may be obtained from a State Neurological Hospital. This may be accepted on the good will and discretion of the Judge as having valid retroactive legal validity.
The Greek constitution in article 51§3b combined with the president decree 26/2012, which encodes the electoral law, specify who is entitled to vote. According to article 4 of the president decree (p.d.), every Greek citizen who has reached the age of 18 has the right to vote. Also, article 51§3b and article 5§a, b of p.d. 26/2012 define that adults, under full/complete guardianship in all matters, cannot vote. In addition, whoever has been sentenced irrevocably for crimes of penal and military penal code loses the right to vote, as long as this deprivation of the right to vote exists. In the articles 38§1 and 62 of the penal code is mentioned that the right to vote is lost for those who have been sentenced in restriction in a psychiatric clinic, after having committed any misdemeanor (for which the law requires a custodial sentence exceeding 6 months) or felony and they are considered as people with diminished responsibility, because of mental disturbance, deaf mute and danger for public safety. The previous conditions are in use, as long as this deprivation of the right to vote exists.
Therefore, a person lacking mental capacity does not automatically lose the right to vote. In Greece, patients with dementia regardless the severity of cognitive impairment, are registered and are given the right to vote. A usual ethical dilemma in Greece is whether patients with dementia should retain the right to vote, since many of them may not be able to vote. A previous study of Alzheimer Hellas has shown that most patients with very mild and mild dementia could understand the nature of voting and they could choose a candidate to vote, however, they had very poor performance in abstract thinking. Therefore, they were unable to decide and define which political party best represented them. Patients with moderate dementia did not even comprehend the voting process and could not choose a candidate because abstract thinking was totally absent. The most important result of the previous study was that even patients with mild cognitive impairment (MCI), who are in a transitional stage between dementia and healthy elderly, had also difficulties in making decisions related to the elections. Although many countries have tried to define some criteria by which people may or may not be able to vote, all they have managed is to categorize patients with dementia in specific population groups (e.g. by giving them the option to vote by their supporter).
Voting is a fundamental legal right in democratic countries. But that does not mean that all people have the ability to vote. The ability to vote, as far as patients with dementia, should be under serious consideration, since dementia diagnosis does not automatically mean the lack of inability to vote. Therefore, it is suggested that each patient with dementia has to be assessed neuropsychologically, in order to define his/her remaining capacities. We must support the fundamental right of every human being to participate in the election process even though he may suffer from dementia, provided that he is able to do so.
Further Relevant Information
Proposals for changing the legal framework concerning people with dementia and their carers
Fundamental Rights for Dementia Patients
In order to approach the legal status of dementia patients, we must start from the text of international law on Human Rights (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights of the United Nations, and the European Convention on Human Rights).
Today, it is generally admitted that the care of a dementia patient must leave room for independence and whatever margins of self-determination may exist.This is an approach oriented to a full enjoyment of rights, reserving, as a rule, the exercise of such rights to their beneficiary, and treating as an exception the beneficiary’s legal representation, or the exercise of such rights in the beneficiary’s stead. However, it is often required for the caregiver to facilitate the patient’s autonomy, meaning that the caregiver must take measures that allow the patient freedom of movement without placing him or her in danger.
There is no doubt that, with the caregiver’s support, the patient must enjoy the basic human freedoms.In detail:
The right to movement, which depends on the natural spatial ability and is directly linked with the patient’s safety. In the case of dementia, the most controversial matter is patients’ ability to continue to drive after having been diagnosed with the early symptoms of the disease. The problem will arise before attaining the age limit when a person’s driving licence must be renewed, when it is obvious that the symptoms pose a threat both to the patient’s own safety and to road traffic. In any case, a full disqualification from driving for a patient diagnosed with early symptoms of dementia is not justifiable, since such symptoms may not be crucial for driving (e.g. momentary loss of memory).
The right to personal safety, under which a person is protected from any arbitrary arrest and incarceration. This right is linked with the involuntary hospitalisation of patients with dementia, which is no different than the involuntary hospitalisation of other patients with mental disorders.
It must be pointed out that dementia patients run a considerable risk of involuntary hospitalisation, even temporarily and with no actual reason, due to caregivers’ exhaustion arising from the provision of long-term, constant care, and the emotional burden.
The right to privacy absolutely applies for patients. Caregivers must ensure that the patient will be able to be quietly alone without having to worry about indiscreet interventions (even well-meaning), even in the most private areas (bedroom or bathroom); this is a fundamental requirement for protecting privacy. The protection of privacy also includes the confidentiality of the patient’s communications.
The right to health is particularly important in the case of dementia, because it is a long-term and at the same time incurable disease, which will result in complete loss of conscience.
The fact that patients will be conscious of their condition from the time they are first diagnosed with the symptoms and start to receive medical care also means that they are able to think and plan their lives up to the point where they will be unable to do so.
The purpose of the doctor’s “duty to truth” is in any case to leave patients free to take critical decisions for their life, including advance directives and living wills, as long as their intellectual abilities still remain active and they may validly express their will. In Greece, as of yet, there is no special institutional framework for advance directives, but a general provision to “take into consideration” the patient’s wishes.
Finally, the right to social security is the most important social right of patients with dementia. Social security funds currently cover part of the relevant expenses for long-term care, and for certain medical rehabilitation services (physical therapy and speech therapy) for a limited period of time. Patients have a right to collect disability benefits (for a disability of 67 to 80%). This percentage allows in particular the uninsured to claim benefits and extends to the insured the right to pay less taxes.
References for the contractual capacity section
Demakis, G. J. (2012). Civil capacities in clinical neuropsychology: Research findings and practical applications. New York: Oxford University Press.
Giannouli, V. (2015). Neuropsychological assessment for the examination of legal capacity and decision making in patients with dementia. Unpublished PhD Thesis, Aristotle University of Thessaloniki.
Giannouli, V., & Tsolaki, M. (2014). Legal capacity of the elderly in Greece.HellenicJournal of Nuclear Medicine, 17, 2-6.
Marson, D. (2001). Loss of financial competency in dementia: Conceptual and empirical approaches.Aging, Neuropsychology, and Cognition, 8, 164–181.
Marson, D. C. (2013). Clinical and ethical aspects of financial capacity in dementia: Α commentary. The American Journal of Geriatric Psychiatry, 21(4), 382-390.
Marson, D. C., Hebert, K., & Solomon, A. (2011). Assessing civil competencies in older adults with dementia: Consent capacity, financial capacity, and testamentary capacity. In G. J. Larrabee (Ed.), Forensicneuropsychology: A scientific approach(pp. 401–437). New York: Oxford University Press.
Marson, D. C., & Zebley, L. (2001). The other side of the retirement years: Cognitive decline, dementia and loss of financial capacity.Journal of Retirement Planning, 30-38.
Rozzini, L., Chilovi, B. V., Trabucchi, M., & Padovani, A. (2003). Impaired financial abilities in mild cognitive impairment: A direct assessment approach.Neurology, 60(12), 2021-2021.
Sherod, M. G., Griffith, H. R., Copeland, J., Belue, K., Krzywansky, S., Zamrini, E. Y., … Marson, D. C. (2009). Neurocognitive predictors of financial capacity across the dementia spectrum: Normal aging, mild cognitive impairment, and Alzheimer ‘s disease.Journal of International Neuropsychological Society, 15(2), 258–267.
Triebel, K. L., Martin, R., Griffith, H. R., Marceaux, J., Okonkwo, O. C., Harrell, L., … Marson, D. C. (2009). Declining financial capacity in mild cognitive impairment A 1-year longitudinal study.Neurology, 73(12), 928-934.
Last Updated: Friday 10 February 2017