Friday, September 27, 2013
For example, I just finished teaching a series of cases that ask students to evaluate the voidability of large end-of-life gifts made by older individuals, usually to persons who appear to be caregivers or recent "befrienders." Were the transactions voluntary even if unwise, or were they the product of an unstable mind or undue influence? Close calls on most of the cases.
The cases that interest me most were the ones where an attorney represented the older person during execution of the documents. In one case, the court commented that the attorney who completed the transaction met with the new client for an hour on a Sunday afternoon and performed a series of "tests" that satisfied the attorney about the client's capacity to complete transfers of the bulk of his real estate. However, a geriatric psychiatrist who later evaluated the same individual, found the individual to have advanced dementia of an Alzheimer's Disease type and concluded the individual would not be able to understand the significance of the deed transfers signed earlier, even though he appeared to be "oriented as to time, place, and person."
Which professional's testimony carried the day? The court credited the attorney's testimony that his client was "lucid" while completing the documents in question, and pointed to the fact the doctor "conceded" that the individual had "moments of lucidity."
Exactly what "tests" does a lawyer, any lawyer, use to evaluate cognitive function? Perhaps every seasoned lawyer has a series of tried and true questions or techniques. But I suspect that many lawyers rely more on instinct than tests, and certainly most transactions by older adults are not challenged.
Should lawyers go further to assess capacity? To help frame the discussion on whether and when to go more deeply into questions of capacity, guidelines are available. Members of the American Bar Association (ABA) and the American Psychological Association (APA) participated in an interdisciplinary task force, which led to three separate documents, including worksheets that may be useful in any assessment of capacity:
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges
The good news is that all three documents are available on the internet. The less good news is the documents are copyrighted and permission is needed to make additional copies for distribution to a group or audience. The handbooks have been available since 2006. Nonetheless, I suspect most attorneys, many psychologists, virtually all other medical professionals, and a heck of a lot of judges have never heard of the handbooks.
Any opinions about the usefulness of these handbooks to practitioners?