Lisa's Picks

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers

Ever wonder how being able to count backwards by 3s or remembering the last president translate to being able to make real life decisions? That’s the question (sort of) that a group of legal experts and psychologists explore in Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, which was published in 2005 (now that the American Bar Association and the American Psychological Association, which produced the guide, have released another version for judges, Judicial Determinations of Capacity, I figure it's about time I got around to singing the praises of the original).

Even as a non-lawyer, I found it terrific. There are three things in particular I liked:

First, although it doesn’t really answer the question about the 3s and past presidents, it at least acknowledges the great divide between psychological and legal assessments of capacity and attempts to find common ground by offering very good descriptions of psychological and neuropsychological instruments and how they relate to legal decisions. There's also a good overview of dementia, advice on when and how to make referrals for mental health assessments, and techniques for enhancing clients' capacity. 

Second, it acknowledges that lawyers, like the rest of us, do things they’re not supposed to, which includes making judgments about clients’ capacity.  They have to sometimes, at least to the extent of referring clients for more comprehensive assessments. APS workers and others are also told they’re not qualified to make judgments about capacity but have to when there's nobody else to do it and the consequences of not doing so are dire. Few agencies can afford the $1,000 to $10,000 that bona fide mental health assessments can cost, and few victims would agree to pay even if they could afford it.

And last, while the handbook affirms the “right to folly"– that is, people's right to make really bad decisions as long as they have capacity, it advises lawyers to look further, at the "inherent fairness" of transactions as well. Personally, I believe that the right to folly principle has been carried a bit too far, giving some predators a free pass to walk away with homes and estates. Hopefully, the fairness factor ensures an added measure of protection to the equation. This seems well advised, especially in light of how little we know about capacity and recent discoveries that suggest that cognitive deficits are perhaps more subtle and complex than previously believed.

I don't know what their plans are, but I hope the ABA and APA don't stop with lawyers and judges. Anyone who works with abused or vulnerable elders can certainly benefit from a clearer understanding of how to assess and enhance clients' ability to make decisions and exercise choice.

To learn more about the APA and ABA collaboration and order copies, see
http://www.apa.org/pi/aging/olderadultcapaci.html