COMPETENT CAPACITY DETERMINATION: METHODS AND CONCERNS

by Robert Allen, Ph.D.

Attorneys wishing to protect their clients by providing the most comprehensive scientific assessment, and conversely, avoid malpractice entanglements are obliged to consider the Due Process in Competency Determinations Act code changes and the following evaluation methods.

The practice of probate/family law requires that on occasion, determinations be made regarding a clients capacity to manage their affairs or execute wills. The new progressive legal changes (Due Process in Competency Determinations Act, DPCDA, code 6100.5, section 812) I have outlined a method that suggests a standard of practice for such assessment.

This new standard of determining a clients capacity includes requirements in many areas of mental functioning that had not previously been outlined. DPCDA establishes a new standard impacting legal practice.

Forensic evaluations in the form of neuropsychological assessments have been very effective and the need for a quantifiable measure of a clients capacity has never been greater. It is important that a clear understanding of a patent's capacity be determined prior to critical medical legal situations.

Agreements for medical procedures, for instance, signed by patients under extreme stress or while receiving strong medication, may fall far short of a reasonable standard of informed consent. Many patents facing a crucial surgery process are unable to understand the complex legal wording in a release to proceed with a dangerous medical procedure.

The newly enacted code, DPCDA, spells out in a clear and straightforward manner the mental and emotional guidelines of determining the capacity of someone entering into a contract. Those persons establishing a will of their estate, for instance, may find their decisions questioned at a later date if they are not currently or were not previously fully functioning. The new probate code, 812, states that an indi vidual lacks capacity under the following circumstances:

A determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act including, but not limited to, the incapacity to contract to make a conveyance, to marry, to make medical decisions, to vote, or to execute wills or trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision:

1. Alertness and attention, including, but not limited to, the following:,

a. Level of arousal or consciousness,,

b. Orientation to time, place, person and situation.;

c. Ability to attend and concentrate.

2. Information processing including but not limited to the following.

a. Short and long term memory including immediate recall;

b. Ability to understand or communicate with others either verbally or

c. Recognition of familiar objects and familiar persons;

d. Ability to understand and appreciate quantities

e. Ability to reason using abstract concepts;

f. Ability to plan, organize and carry out actions in one's own rational self interest;

g . Ability to reason logically;

3. Thought processes. Deficits in these functions may be demonstrated by the presence of the following:

a. Severely disorganized thinking

b. Hallucinations;

c. Delusions;

d. Uncontrollable, repetitive or intrusive thoughts;

4. Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, dispair or indifference, which is inappropriate in degree to the individuals circumstances.

We know that interview information alone is unreliable when formulating a diagnosis and certainly would be insufficient in establishing one's capacity to proceed in an important legal decision.

Significant disagreement is observed when physicians are asked to judge the competency of patients with mild Alzheimer's disease. The authors of these reports conclude that the previous accepted "gold standard" of physician judgment of dementia is not accurate or reliable. When neuropsychological test measures were added to provide further information degrees of deterioration and subsequent capacity of these Alzheimer's patients were determined. Three levels of capacity were assessed in an Alzheimer's patient group. Cognitive abilities related to legal standards ranging from a patient's capacity to "evidence a treatment choice" to the ability to understand the treatment situation and choices" were measured. Alzheimer's patients were categorized based on cognitive performance. The conclusions of the research indicated that patients' levels of ability can be accurately assessed using neuropsychological test measures.

The correspondence of a patient's cognitive abilities measured by these tests with the severity of their illness demonstrate a neurological model of competency that correlates substantially with legal standards of capacity. The use of well standardized measures probate Code 6100.5, Section 812, would comply with the needs of the statute and furthermore present a comprehensive picture of functioning regarding an individual's strengths and weaknesses. These procedures establish a professional, scientific measure of capacity.

A neuropsychologist is trained to provide structured, informative interviews, standardized, measured cognitive tests, personality profiles, and is licensed by the state to render a corresponding diagnosis, In the court. room, neuropsychologists routinely offer expert opinion regarding capacity. An individual may suffer from a variety of severe deficits and still retain mental functioning which would allow them to demonstrate testamentary capacity. An example would include a patient with expressive aphasia who may appear incompetent by not being able to communicate through voice. This patient, however, may use eye or hand gestures to convey their needs and demonstrate their ability. Testamentary capacity in this case would require the knowledge of their financial holdings, the knowledge of to whom they would give their holdings upon death, and understand and convey the value of their estate in a fluent but nonverbal fashion.

An individual's coherent mental functioning may fluctuate as a disease progresses. An individual with a disease process that is characterized with exacerbations may require that their capacity to function be evaluated at the time they enter into any contractual arrangements.

The neuropsychological measurement of ability combined with information from other sources leads to the most accurate and least refutable information of a person's capacity. The addition of actuarial data can add to diagnostic accuracy, and in most cases is found to be superior to clinical impression. Proposed is a model seated in a conceptual framework for use in providing the most thorough and integrated approach to this challenge. First of all, the referring colleague must establish a trust of the practitioner who is seeing their client. The questions to be addressed should be clear to all parties, certainly the clients themselves. A clinical interview and an evaluation is used to integrate information and provide a coherent picture of the problem at hand. Traditional assessments should include both psychological/personality problems and neuropsychometric problem patterns. Well reasoned reports are provided which are necessary when integrating knowledge into a form that can be used in the legal forensic setting. The practitioner, through the use of diagnostic instruments, records, and interviews, will determine whether "limited" capacity may exist in specific areas of functioning or judgment to avoid an all or nothing dilemma which could lead to reductionistic and potentially harmful conclusions.

In conclusion, the state legislature has adopted guidelines to be used in assessing an individual's capacity to make informed decisions. Practicing attorneys wishing to protect their clients and protect themselves from malpractice entanglements will certainly wish to consider a neuropsychological evaluation of their clients.

Legal determination of competency, whether it be limited to certain functional areas and decisions, or whether it pertains to a person's full range of abilities, is the province of the courtroom. The establishment of a thorough history, collateral information and standardized measures of an individual's functioning will greatly assist in the legal determination of competency at a given time in a person's life.

Retrospective estimates of an individual's functional ability are more problematic and open to question. Informed consent to proceed with medical procedures, the execution of a will, or any contract may require legal input. Each area of law relies on the perception of a client's individual judgment and their ability to appreciate and fully comprehend what is being required of them. The neuropsychological evaluation provides the most comprehensive picture of an individual's ability.

REFERENCES 1. Probate Code #812: The Finite Mental Functioning Deficit List Modernizing the Lingua Francia of All Capacity Determinations. California Trusts and Estates Quarterly, Vol. 1, Number 4, Winter 1995, p 37-49.

2. Meehl, P.E., The Limits of Scientific Reasoning, Minneapolis; University of Minnesota Press (foreword to book), 1984.

3. Marson, D.C., et al., Consistency of Physician Judgments of Capacity to Consent in Mild Alzheimer's Disease, Journal of the American Geriatrics Society, Vol. 45, Number 4, April 1997, p 453-457.

4. Marson, D.C., et al., Toward a Neurological Model of Competency, Neurological psychology, Vol. 46, 1996, p 666-672.

5. Sawyer, J., Measure and Prediction, Clinical and Statistical, Psychological cal Bulletin, Vol. 66, 1966, p 178-200.