The California Court of Appeals has correctly ruled that capacity is decision specific. Even a largely incapacitated patient may still have the capacity to name and fire surrogates.
Earlier this month, the appellate court upheld a trial court ruling dismissing the petition of Manuela Herzer. Former CBS/Viacom head Sumner Redstone had fired Herzer as his healthcare agent. Herzer challenged that decision. Indeed, there were serious concerns about Redstone’s capacity at the time. But that was irrelevant.
The court held that Sumner’s obvious reluctance to have Herzer represent him was sufficient to disqualify her. He did not trust her because he believed she had lied to him and stolen money from him.