Washington State Clarifies Decision Making Capacity Rules

In most jurisdictions, long-settled rules hold that "capacity" is the appropriate construct for determining whether an individual can make a specific health care decision. "Competence" is a less common global determination. Furthermore, long-settled rules hold that everyone is presumed to have capacity until the presumption is rebutted. 

Washington State legislature just passed a bill to codify all this. S.B. 5185 does three things: 

1. Establishes a presumption that an adult who is not subject to a guardianship that includes health care decision-making has the capacity to make health care decisions.

2. Allows a health care provider to overcome the presumption of capacity by reasonably determining that the adult has demonstrated an inability to understand and appreciate the nature and consequences of a health care condition or proposed treatment.

3. Changes terminology referring to persons who have an appointed guardian and persons who are competent or not legally competent to instead refer to whether or not they have capacity.