Capacity and Confusion

Capacity is a person’s ability to understand the nature and effects of their actions and decisions. Legal capacity can vary, meaning that an individual can have the requisite capacity in one instance but not in another. Judges are often required to evaluate the past, present and/or future capacity of an individual in a variety of proceedings. Capacity can be impacted by a number of factors, including dehydration, stroke, other medical conditions and needs, disability, trauma history, mental health status, or dementia.

There is a difference between clinical and legal capacity. A clinical understanding of capacity allows for a nuanced understanding of the gradation between capacity, diminished capacity, and a lack of capacity. A legal assessment of capacity is both binary and task specific. A person either has or lacks capacity depending on the requisite level of capacity and understanding for that task.

Section 100.3(B)(4) of the New York Code of Judicial Conduct requires judges to, in the course of carrying out their judicial duties, refrain from being prejudiced against or biased towards a person or party on the basis of categories such as age and disability. Attorneys have an obligation to, “as far as reasonably possible, maintain a normal client-lawyer relationship” with a client with diminished capacity. Model Rules of Prof’l Conduct R. 1.14.

The information below is intended solely to briefly introduce signs of the normal aging process; dementia, and how it might present in the courtroom; and other reasons that an older adult may appear confused.

Typical Aging Brain

The effects of an aging brain are varied and multidirectional

  • Mental processing generally slows
  • The ability to store new vocabulary increases
  • Multitasking becomes more difficult
  • Ability to store new concepts increases
  • Prospective memory declines
  • Temporal memory typically holds
  • More focus on positive aspects of life
  • Ability to store new concepts increases

Communication Barriers

  • Hearing and/or vision impairment is common for many older adults and may present like confusion
  • Assistive devices or adaptations should be used
  • Refer to local services provider to assess the need for assistive devices (see also: Elder Abuse Directory)
  • (see also: Effective Communication)

Medical Concerns

  • Depression
  • Medication effects
  • Delirium
  • Dehydration or nutritional deficits, including electrolyte imbalance
  • Certain infections, including urinary tract infections
  • Metabolic imbalances, including low sodium
  • Refer to local medical provider to assess medical condition


  • Dementia describes a group of disorders impacting the brain that can cause memory loss and a decline in mental function
  • Alzheimer’s Disease is the most prevalent non-reversible form of dementia
  • Vascular dementia generally appears between ages 55 to 70, has a “stepwise” progression, and is caused by multiple strokes
  • Lewy-Bodies Disease presents like Parkinson’s and Alzheimer’s Disease, with both dementia and atypical movement
  • Effects can include short-term memory loss, difficulty with communication and language, difficulty focusing, problems with reasoning and judgement, disorientation and confusion, and visual perception issues
  • Refer to local dementia support services provider, for example the local Alzheimer’s Association


  • Trauma is the lasting adverse effects of the individual’s functioning and mental, physical, social, emotional, or spiritual health resulting from an event, series of event, or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening
  • Effects can include emotional dysregulation, increased activation of “survival centers” of the brain, and decreased executive functioning
  • Refer to local mental health provider for supportive services
Ctr. for Ct. Innovation, NY State Office of Ct. Admin.’s Office of Policy and Planning & NY State Judicial Comm’n on Elder Justice, Elder Abuse Guide for Judges and Court Personnel (2020).

Risa Breckman, LCSW, Malya Levin, Esq., Leslie Mantrone, LMSW, & Joy Solomon, Esq., The Things They Carry: Advancing Trauma Informed Responses to Elder Abuse, NYCEAC & The Harry and Jeannette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale (Jan. 2020),

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, Am. Bar Assoc & Am. Psych. Assoc. (2005),

Physical Changes Associated with Normal Aging, LifeCare Advocates (2019).

Normal Age-Related Memory Changes vs. Alzheimer’s Disease, LifeCare Advocates (2019).

Major Forms of Dementia, LifeCare Advocates (2019).
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