Monday, February 23, 2015

Moments of Lucidity vs. Mental Capacity

On Saturday, I had the privilege of attending the 7th Annual Conference of the Pennsylvania  Association of Elder Law Attorneys (PAELA), to give a presentation with Dr. Claire Flaherty, a Penn State Hershey Medical Center neuropsychologist with special expertise in frontal and temporal lobe impairments, on "Dementia Diagnosis and the Law."  February Snow 2015

Another speaker, Teepa Snow, an occupational therapist with long-experience in behavioral health, brain injury and dementia care, spoke on Sunday. 

It was one of the rare times when I've been glad to be "snowed in" at a conference, as that kept me in place for both days of the presentations, rather than rushing home to work on some other task. 

One of the topics that was discussed by attendees over the two days was the question of whether testimony by witnesses who observe "moments of lucidity" -- standing alone -- is proper support for a finding of "legal capacity." Context is important, of course, as both common law and statutory law increasingly recognize that capacity should be evaluated in terms of specific transactions. 

My own takeaway from the health care experts was the need for some measure of caution in this regard.  With many forms of dementia, especially at the early stages, unrecognized impairment of judgment may precede recognized impairment of memory.  In other words, as I understand it, we may spend too much time being impressed by a client's ability to remember who is the president or the names of their children, and too little time asking more probing questions.  Deeper inquiry may reveal or ameliorate concerns about judgment, including an individual's current abilities to make decisions, make reasonable, rational connections in formulating or following a plan, and related skills such as empathy or self-awareness.

Along this same line, it is a good time to remind readers that there are three useful handbooks on "Assessment of Older Adults With Diminished Capacity," one directed to lawyers, one to psychologists, and one for judges, that were created by experienced professionals working as a team on behalf of the American Bar Association and the American Psychological Association (APA).  Individual copies can be downloaded without cost from the APA website.  

https://lawprofessors.typepad.com/elder_law/2015/02/moments-of-lucidity-vs-mental-capacity.html

Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Science | Permalink

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