Understanding Capacity in Advance Health Care Directives: What You Need to Know

Do you have capacity to sign a Healthcare Directive?

When it comes to creating an advance health care directive, also known as a living will, one of the key considerations is the capacity of the individual to make important healthcare decisions. In Utah, specific guidelines are in place to determine an individual’s capacity to complete an advance health care directive. Let’s explore what capacity means in this context and how it impacts the creation of advance health care directives.

1. Presumption of Capacity

Under Utah law, adults are presumed to have the capacity to complete an advance health care directive. This means that unless there is evidence to the contrary, individuals are assumed to be capable of making decisions regarding their medical care and treatment preferences.

2. Lack of Capacity and Advance Health Care Directives

However, if an adult is found to lack health care decision-making capacity under the provisions of Utah Code Ann. 75-2a-104, they may be unable to sign an advance health care directive. This includes completing Part II of the advance health care directive form or any other similar document expressing health care preferences. It’s essential to understand that lacking capacity in this context does not necessarily mean the individual lacks all decision-making abilities.

3. Capacity to Appoint an Agent

Despite lacking capacity to give an advance health care directive, an adult may still retain the capacity to appoint an agent and complete Part I of the advance health care directive form. In determining whether the individual has retained the capacity to appoint an agent, several factors are considered:

  • Consistency of Intent: Whether the individual has expressed an intent to appoint the same person as their agent over time.
  • Past Relationships and Behavior: Whether the choice of agent aligns with past relationships and patterns of behavior between the individual and the prospective agent, or if there is a reasonable justification for any changes.
  • Ability to Communicate Decisions: Whether the individual’s expression of intent to appoint the agent occurs during times or in settings where they have the greatest ability to make and communicate decisions.

These factors help assess whether the individual is capable of understanding and communicating their wishes regarding the appointment of an agent to make health care decisions on their behalf.


Capacity is a critical consideration in the creation of advance health care directives. Understanding the nuances of capacity and its implications can ensure that individuals receive the appropriate level of care and that their wishes are honored in times of incapacity. If you or a loved one are considering creating an advance health care directive or appointing a healthcare agent, it’s essential to seek guidance from an experienced Utah estate planning attorney who can provide tailored advice based on your unique circumstances.

At Ellsworth Law Firm, we specialize in estate planning and advance health care directives. Our knowledgeable Lehi estate planning attorney can help you navigate the complexities of capacity assessments and ensure that your healthcare wishes are documented effectively. Contact us today to schedule a consultation and take the first step towards peace of mind regarding your future healthcare decisions.