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Assessing Legal Capacity

Legal Capacity – A Legal Determination

Legal capacity is a legal determination, not a medical determination. A doctor’s assessment or opinion can assist us, but it is up to the lawyer or legal advocate to determine capacity. As a legal advocate for older adults, it is important to assess whether there is incapacity, and whether it is a temporary situation (e.g. – acute medical condition, mitigating factors such as grieving, depression).

It requires

1. An initial assessment component

and, if necessary,

2. Use of a clinical consultation or formal evaluation by a clinician,

and

3. A final legal judgment about capacity by the lawyer (or ultimately a Judge).

In fact it should be rare to have a formal evaluation by a clinician. It will usually be up to you. You can’t just send your client to their doctor for the administering of the Mini-mental State Exam (MMSE) and then have the doctor tell you based on their score whether they have capacity or not. First of all, that isn’t what the MMSE is for. Secondly, it is your call, your assessment. But they didn’t train you how to do this. What should you do.

Assessing Capacity

As a practical matter, in assessing a client’s capacity to execute a legal document, lawyers generally ask the question, “Is anyone going to challenge this transaction?” If a client of questionable capacity executes a will giving her estate to her husband, and then to her children if her husband does not survive her, it’s unlikely to be challenged. If, on the other hand, she executes a will giving her estate entirely to one daughter with nothing passing to her other children, the lawyer must be more certain of being able to prove the client’s capacity.

While the standards may seem clear, applying them to particular clients may be difficult. The fact that a client does not know the year or the name of the Prime Minister may mean she does not have capacity to enter into a contract, but not necessarily that she can’t execute a will or durable power of attorney. The determination mixes medical, psychological and legal judgments. It must be made by the lawyer (or a judge, in the case of committeeship determinations) based on information gleaned by the lawyer in interactions with the client, from other sources such as family members and social workers, and, if necessary, from medical personnel. Doctors and psychiatrists cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment. Assessing legal capacity requires a legal determination. But medical professionals can provide a professional evaluation of the person that will help a lawyer make this decision.

Because you need a third party to assess capacity and because you need to be certain that the formal legal requirements are followed, it can be risky to prepare and execute legal documents on your own without representation by a lawyer.

Excluding Others During the Assessment

You want to meet alone if at all possible with the older adult you are assessing, to ensure there are no influences or assists from others.

[click on image to enlarge]

This ABA pamphlet explains to ‘friends’ and relatives why the lawyer needs to meet with a client alone if at all possible to properly address what we call the four C’s of elder law:

1.Client ID (who is the client – what are instructions)

2.Conflicts of Interest (only one client if possible)

3.Confidentiality (and protection of privilege)

4.Competency (assessing capacity)

A copy of the pamphlet can be downloaded for free here: Why Am I Left In the Waiting Room Multiple copies can be ordered from the ABA here: Pamphlet Order Page

Capacity Assessment Tool

The American Bar Association and the American Psychological Association recognized this problem, and came up with a solution. The Handbook for Lawyers – Assessment of Older Adult With Diminish Capacity recommends a procedure for conducting an assessment and contains a suggested capacity worksheet.

• It reviews the legal and medical models of capacity.

• It includes a worksheet and process for assessing capacity

• It suggests how to enhance capacity where possible.

• It discusses when and how to refer for medical assessments.

• Finally it helps with using and understanding capacity assessment reports.

The process outlined outlined in the handbook is meant to structure and record observations leading to a legal judgment regarding client capacity that is:

Sufficiently comprehensive in scope;
Systematic in process;
Blends into case interview process;
Accountable if challenged; and,
Well documented.

Capacity Worksheet

Using the capacity worksheet helps you identify and organize:

• Observational signs of diminished capacity;

• Mitigating factors affecting capacity;

• Transaction-specific elements of legal capacity;.

• Task-specific factors in evaluating capacity; and,

• Preliminary conclusions about client capacity.

Seniors First BC has developed a version of the capacity assessment worksheet. It should be used in conjunction with the ABA Handbook for Lawyers. For a copy of our assessment worksheet, click here: Capacity Assessment Worksheet

Observational Tips

When using the worksheet, consider the following observational tips:

Focus on decision making abilities, not cooperativeness or affability.
Watch out for ‘confabulation’ – filling in the gap with stories, and ‘tells’ – inadvertent prompts by you for positive/negative answer
Pay attention to changes over time; history is important.
Beware of ‘ableism’ and ‘ageism’ stereotypes.
Consider whether mitigating factors could explain the behavior.

Assumptions

Also watch out for your own assumptions. Just because someone has:

a diagnosis of a mental illness;
dementia;
Alzheimer’s Disease or related disorder;
a negative assessment; or even
a committeeship

does not automatically mean that they lack decisional capacity.

[From Judith Wahl of the Advocacy Centre for the Elderly in Toronto, Ontario]

Remember, legal capacity is always task and time specific!

The Big Question – Revisited

Keep in mind that the ‘big question’ was whether your client has diminished capacity. As the Ontario Court of Appeal reminds us, a lawyer need not be satisfied that there is testamentary capacity – the relevant question is:

“whether a reasonable and prudent solicitor could have concluded that testamentary capacity was absent.“

Hall v. Bennett Estate 64 O.R. (3d) 191 – 2003 (OCA)

Steps In the Capacity Assessment Worksheet

1. Observe and interpret signs of diminished capacity

Cognitive Functioning
Short-term Memory Problems	Repeats questions frequently Forgets what is discussed within 15-30 min. Cannot remember events of past few days
Language/ Communication Problems	Difficulty finding words frequently Vague language Trouble staying on topic Disorganized Bizarre statements or reasoning
Comprehension Problems	Difficulty repeating simple concepts Repeated questioning
Lack of Mental Flexibility	Difficulty comparing alternatives Difficulty adjusting to changes
Calculation/Financial Management Problems	Addition or subtraction that previously would have been easy for the client (if known) Bill paying difficulty
Disorientation	Trouble navigating office Gets lost coming to office Confused about day/time/year/season

Emotional Functioning
Emotional Distress	Anxious Tearful/distressed Excited/pressured/manic
Emotional Variability	Moves quickly between laughter and tears Feelings inconsistent with topic

Behavioral Functioning
Delusions	Feels others out “to get” him/her, spying or organized against him/her Fearful, feels unsafe* NB – be cautious of assuming a client’s fear is due to a delusion rather than the result of actual abuse/ threat to client’s safety.
Hallucinations	Appears to hear or talk to things not there Appears to see things not there Misperceives things
Poor Grooming/Hygiene	Unusually unclean Unkempt in appearance Inappropriately dressed/multiple layers

2. Consider and address mitigating factors

Mitigating/Qualifying Factors Affecting Functioning
Stress, Grief, Depression, (Recent Events affecting stability of client)	Ask about recent events, losses Allow some time Offer referral to a mental health professional
Medical Factors	Ask about: nutrition, medications, hydration Offer referral to health professional
Time of Day Variability	Ask if certain times of the day are best Try mid-morning appointment
Hearing and Vision Loss	Assess ability to read/repeat simple information Adjust seating, lighting Use visual and hearing aids Refer for hearing and vision evaluation
Educational/Cultural/ Ethnic Barriers	Be aware of: Culture education, long-held values and traditions

The Six D’s

In summary, you want to screen out the six “D” factors:

• Drugs – effects of medications

• Disorientation

• Diet – malnutrition

• Dehydration

• Delirium

• Depression

3. Consider Undue Influence

Is undue influence possibly at work? – factors to assess:

Fearful?
Isolated?
Overly dependent or vulnerable?
Overwhelmed by finances?
History of the relationship – best new friend?

See our webpage on undue influence to see a tool for identifying and assessing the risk of undue influence.

4. Evaluate Understanding

Evaluate understanding in relation to legal elements of capacity for the transaction at hand
Compare clients understanding with each functional element of capacity set out in law. For e.g. – for the preparation and execution of a Will:
- Can you describe what a will is?
- Who are the objects of your bounty?
- Nature and extent of assets?
- Describe basic plan for distribution.

5. Consider degree of risk to client

General Legal Elements of Capacity for Common Tasks

The more serious the concerns about the following factors

The higher the function needed in the following abilities…

Is decision consistent with client’s long-term values or commitments (if known)?
Is the decision objectively fair?
Will anyone be hurt by the decision?
Does anyone substantially stand to benefit?
Could the decision harm the client or someone else?
Is the decision irreversible?

Can client articulate reasoning leading to this decision?
Is client’s decision consistent over time? *
Are primary values client articulates consistent over time?*
Can client appreciate consequences of his/her decision?

* – In many cases, lawyers will not be able to assess client’s values

and decisions over time as the lawyer will not have a long-term

relationship with the client.

6. Analysis

Complete legal analysis
Document capacity observations
Take appropriate action in response

For those who prefer, here is a flow chart setting out the capacity assessment process.