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July 14, 2021

Assessment of Older Adults with Diminished Capacities; 2nd Edition

David Godfrey

The PDF in which this article appears can be dowloaded here: Bifocal Vol. 42 Issue 6.

The second edition of the Assessment of Older Adults with Diminished Capacities updates and builds on the groundbreaking work of the first edition published 16 years ago. The second edition incorporates developments in human rights, supported decision-making and decision supports, advances in understanding financial ability, and increased awareness of elder abuse including undue influence, the impact of implicit bias, and barriers to decision-making. A lot has changed in recent years. In short, the updates and additions easily justify upgrading to the second edition.

The book starts off with a basic understanding of “legal capacity.” When we interactively communicate with another person, listening for answers that confirm understanding, we are informally assessing capacities. We do it without realizing we are doing it. We become aware of capacity when we are concerned about mutual understanding or when capacity is the subject of the representation. The chapter introduces the concept of decision supports, touches on the ethical guidance of Model Rule of Professional Conduct 1.14 when working with a client with diminished capacities, and the liability risk when a lawyer fails to spot diminished capacity in a client.

The second chapter updates and expands on the legal evolution of capacity from the first edition and adds a section on decision supports and supported decision-making. “Decision supports” leverage or expand understanding and decision-making abilities. Decision supports have the potential to empower a person to make choices that protect the person from harm. The chapter discusses various models for capacity and how capacity is commonly defined in guardianship or conservatorship law.

The book turns to clinical assessment in chapter 3. An assessment of capacity by a physician, psychologist, or other health care provider is based on a clinical model that can seem vastly different from the model that lawyers use. Clinical approaches to capacity generally parse and measure various operational cognitive, behavioral, emotional, and physical domains necessary to meet a relevant legal standard, which is often needed because legal standards tend to be defined in broad conceptual terms. Clinical findings and conclusions usually fall along a broad and multi-faceted continuum of capacity, while lawyers and courts are often looking for a yes or no answer.

The fourth chapter explores the impact of barriers to decision-making including implicit bias and offers guidance on providing decision supports. When we communicate or meet someone our brains unconsciously assign characteristics to that person based on appearance, sound, gender, race, and age. The book explains how this implicit bias affects our assessment of the person’s abilities and understanding. The chapter reviews a multitude of ways to communicate with clients more effectively and enable them to function at their best even with diminished capacities or challenges such as hearing or vision loss.

The next chapter describes specific standards for legal capacities needed to perform a variety of common tasks. When evaluating or litigating capacity it is critical to understand the specific standards. Explanations are included for contracts, conveying property, testamentary capacity, powers of attorney, financial decisions, gifting, health care, appointing a health care agent, independent living, marriage, mediation, and consent to sexual activity. Being clear about these standards also helps lawyers work more effectively with other professionals on evaluations.

Undue influence and diminished capacity are both significant concerns in elder abuse and financial exploitation. Chapter 6 defines and explores undue influence, describes various approaches to screening and offers a practical tool for screening. “Undue influence” is influence by a person in a position of power or influence over a person who is vulnerable that overrides the normal free choice of the person. The vulnerability of the victim may be based on a close or confidential relationship, a reliance for social or personal needs, a financial dependency, or diminished – but not an absence of-- capacity. Increasingly lawyers are screening not just for capacity, but also for undue influence especially in transactional, advance planning, and estate planning practices. Claims of lack of capacity or undue influence are increasingly common in litigation to recover assets stolen by exploitation making this chapter especially valuable.

Chapter 7 provides a detailed discussion of the factors that lawyers should consider in a systematic evaluation of capacities and presents a detailed checklist that lawyers can use to document their process. Assessment should be systematic, and a part of routine practice done with every client. Readers familiar with the assessment checklist in the original book will find enhancements in this section relating to financial capacities. Research over the past decade provides a much deeper understanding of financial decision-making and this category is included in the checklist. Consideration of decision supports, and bias have been integrated into the check-list. The chapter also discusses the challenges of standardized screening or testing instruments and discusses why most lawyers should avoid using those tools.

The last two chapters discuss consultation, clinical assessment, and understanding a clinical assessment. This section describes in detail why and when a lawyer may wish to consult with a clinician or ask the client to seek an informal or formal assessment. There are details on how to select a clinician and a checklist of elements for a referral; and how to communicate with the clinician doing the assessment. A lawyer may wish to consider an informal consultation, an informal assessment, or a formal assessment. The section describes what to expect in a clinical report, and how the report can be useful in understanding legal capacities.

The book closes with four appendices; the first is a comprehensive description of standardized assessment and evaluation instruments. This is followed by a case example of a clinical assessment, starting with the referral letter, the report, and the use of the report by the attorney. Appendix 3 contains a discussion of medical conditions that affect capacity, and appendix 4 discusses capacity and the aging brain. This last section is very helpful in understanding clinical and medical terminology as it has evolved over the past 20 years.

Creation of the second edition was made possible by support from the Borchard Foundation Center on Law and Aging, and the ABA Section of Real Property, Trust and Estate Law. Contributors included Edwin M. Boyer, JD, Jason Karlawish, M.D., Daniel Marson, J.D., Ph.D., Kyle S. Page, Ph.D., Dari Pogach, J.D., Mary Joy Quinn, R.N., M.A., Charles P. Sabatino, J.D., Erica F. Wood, J.D, and Jennifer A. Moye, Ph.D.

With endnotes the book is nearly 100 pages in a standard letter size format with a softcover. It is destined to become a standard reference work for attorneys who practice elder law, estate planning, probate litigation, mental health, and guardianship law. The book is available for purchase in the ABA Webstore. Proceeds from the sale of the book will support the ongoing work of the Commission on Law and Aging.

Buy Assessment of Older Adults with Diminished Capacities, a Handbook for Lawyers, 2nd Edition at Shop ABA.

David Godfrey, JD

ABA Commission on Law and Aging, Washington, DC