Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, January 30, 2019

A Neuropsychologist’s Take on Mental Capacity Evaluation [California]

AlzJonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity," has practiced neuropsychology for over 30 years. He has assisted attorneys and family members when there is an issue of a person's mental and testamentary capacity, even when the assessment is performed posthumously.

Dr. Canick says that, contrary to popular belief, " significant changes in cognitive and mental functioning are not a normal part of aging." If a change or decline does occur, it usually involves the beginnings of a disorder or disease or other negative influence. Though instances of dementia increase once a person is past their seventh decade, it has been noted that those that live into their 90s do not suffer from major cognitive disorders. "Aging is not a neurodegenerative disease," and the ability to generate new brain cells and learn new things occur throughout a person's life.

The California Probate Code specifies that determination of mental capacity does not rest solely on a diagnosis, but on the amount of ability a person has for effective information processing. Thus, a person with a diagnosis of dementia or Alzheimer's may still retain testamentary capacity while a person without a diagnosis does not have that capacity. A neuropsychological evaluation can identify deficits and strengths in mental functioning and helps determine whether a person has or lacks sufficient cognitive function to perform a given act.

See Jeffrey S. Galvin, A Neuropsychologist’s Take on Mental Capacity Evaluation, Trust on Trial, January 22, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.


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