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Masked Capacity & Undue Influence
Estate Planning and
Neuropsychology: A Useful Partnership in the Determination of Capacity and Undue
Influence
The
Importance—and Limitations of Language
Dr Vivian Clayton, Ph.D. received her doctorate in psychology from the
University of Southern California’s Andrus Gerontology Center (1976) where she
specialized in aging. She is a co-author on Cal CEB Action Guide: Capacity
and Undue Influence: Assessing, Challenging and Defending, Winter 2001. Her
e-mail address is miel@ix.netcom.com
The field of psychology and law both rely on the use and interpretation of
language as a basis for decisions that affect peoples’ lives. More than once I
have observed in the role of being an expert witness in trials, an attorney
referring back to the exact wording of a probate code or statute to support his
or her conclusions. Nevertheless, the terminology used in the fields of law and
psychology, such as “communication” and “reasoning,” do not necessarily
mean the same thing and are not always interpreted in the same way by the
respective disciplines.
Due Process in Competence Determinations Act of 1995
It was not until the Due Process in Competence Determinations Act 1995 (Prob C
§§810-813) that a bridge was created between law and psychology that allowed
for a better understanding of terminology. This Act codifies standards for a
court to determine whether a person has the capacity to perform particular acts
in a variety of contexts. It makes clear that having a mental or physical
disorder, by itself, does not affect the presumption of legal capacity. “A
person who has a mental or physical disorder may still be capable of
contracting, conveying, marrying, making medical decisions, executing wills or
trusts and performing other actions.” (Prob C §810(b)). A determination of
incapacity is now “based on evidence of a deficit in one or more of a
person’s mental functions rather than on a diagnosis of a person’s mental
disorder.” (Prob C §811 (c)). However, a precursor to the evaluation of any
of these mental functions is the individual’s capacity to communicate,
understand and appreciate the rights, duties and responsibilities created or
affected by an action.
What people say is not necessarily what they mean
The ability to communicate one’s wishes and understand the implications is a
fundamental assessment task for the neuropsychologist. Through experience, we
have seen that what people say is not necessarily what people mean. This is
especially the case as individuals get older. Some become quite dependent on
caretakers who unfortunately may exert undue influence. Under careful scrutiny
and threats to the individual’s safety, the elder will say what their wishes
are, but it is not necessarily a true reflection of their real desires, nor an
indication of what is in their best interests. In addition, a person can use
words without any hesitation or word finding problems, but not have a clue as to
what the correct response is to a question.
Intact social skills may mask the ability to comprehend
Many people already advanced into the second stage of Alzheimer’s disease can
say the most beguiling things; these statements can make you laugh and
“assure” you that the person is truly on the ball. Through part of a larger
test battery, one of the questions assessing long term memory is, “Who painted
the Sistine Chapel?” A patient of mine replied, “The outside or the
inside?” I responded, “The inside,” to which he responded, “I don't
know, but he did a good job.”
Another question from this same battery of questions assessing long-term memory,
is, “Who wrote Hamlet?” Another patient replied, “You tell me—then
we’ll both know.” While these responses confirm the intactness of social
skills (well preserved in Alzheimer’s disease until the third stage), they
mask the fact that the individual really does not know the answer. Frequently,
there are functional correlates. Such clients often no longer remember the size
of their estate, their monthly income or who are their heirs. At this stage,
most patients need assistance in buttoning their clothing and putting it on in
the proper order.
Losing the capacity to consider consequences of actions
An individual can use words and express clear desires, but not understand their
implications. Take, for example, the case of Dr. C., a 65-year-old man with a
diagnosis of vascular dementia. He had already suffered the effects of three
strokes, and at the time of the evaluation was living in a private room in a
skilled nursing facility. He had degrees in both law and medicine. Though
divorced, his ex-wife was managing his accounts, and apparently was able to do
so, based on the settlement of the divorce. Mrs. C. stated that Dr. C. wanted to
start gifting monies from his estate to herself and their three adult children
over a period of time. Her attorney requested the neuropsychological evaluation,
expressing concerns that Dr. C. lacked the capacity to appreciate the
consequences.
Both privately, and in his ex-wife’s presence, the question was asked, “I
want to know if you would trust Mrs. C. and the children to make financial
decisions for you?” His answer was consistently “Yes.” I also asked him
several times privately, both during the initial evaluation and in a subsequent
follow up visit, whether he wanted to make gifts from his estate to Mrs. C. and
his children. He always replied, “Yes,” without hesitation. Dr. C. did not
know the size of his estate nor have any idea of where his investments were
sheltered. He did not know how much it cost him to live in this particular
nursing home on a daily basis. Based upon clinical interview and tests results,
it became apparent that Dr. C. had lost the capacity to consider the
consequences of his actions as they might affect himself.
To bridge the gap between the test results and the referral question, I asked
him if he knew what it meant to gift his estate to someone else. He replied,
“no.” In as simple terms as possible, I explained that eventually he would
no longer have funds to stay where he was currently living and he would have to
move to a facility that had MediCal beds. I asked him if he knew what MediCal
was and he replied, “No.” I asked him to accompany me across the parking lot
and I would show him where he might have to go to live if he gifted his money to
his family while he was still living. When we entered the lobby, and the smell
of strong odors and yelling, demented patients greeted our ears, I repeated the
question, ”If you gift your estate to your ex-wife and children before you
die, would you like to live here?“ He replied, with vigor, ”No way,“ and
turned around and started walking towards the door again without waiting for me.
Conclusion
These are just two examples of the way in which retaining the capacity to
communicate does not automatically mean that the individual has the underlying
capacity to make dispositive decisions, either financial or with regard to
personal affairs. The tests used in neuropsychological examination allow for a
full profile of the individual’s cognitive capacity to understand, appreciate
and weigh consequences on written, oral and schematic form. The tests
administered help to determine to what degree an individual is capable of
planning, organizing and carrying out actions in his or her own rational
self-interest.
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