This brief post is about competency evaluations, specifically as concerns elder individuals who might be developing problems with their thinking or memory.

A neuropsychological evaluation concerning competency in these cases must first determine what specific type of competency is in question.

It should be noted that “competency” typically refers to a legal decision by a judge (concerning whether or not an individual is able to understand relevant information, make decisions, carry out actions, etc. in certain areas). Neuropsychologists actually assess capacity, and judges then might use such information make a legal ruling about competency.

There are three basic types of capacity that neuropsychologists often assess in the elderly – capacity to manage 1. medical affairs, 2. financial affairs, and 3. testamentary matters (related to the drawing up of a will).

As concerns capacity to manage medical affairs, the neuropsychologist must first determine what specific capacity is at issue.  For example, the patient’s family and surgeon might wonder if he or she has the capacity to make a decision about checking themselves out of the hospital.  If the patient is willing to follow medical advice and stay in the hospital until the doctors say they are fit to leave, then an evaluation of their medical decision-making capacity is often not performed.  However, if the patient insists on leaving the hospital prematurely or AMA (against medical advice), then a capacity evaluation is called for, to assess whether they understand the risks involved in leaving AMA, and can provide reasonable and consistent statements for why they wish to do so.  This is one of the basic standards in demonstrating capacity to make such decisions: that one is reasonable and consistent as concerns why one wants to do something (cf. Grisso, 2003).  A patient might state that they want to leave the hospital because there is “nothing wrong with them”, even though they came into the hospital malnourished, dehydrated and confused, and remain so, along with multiple other untreated medical problems.  The self-report that there is nothing wrong with them is therefore unreasonable.  On the other hand, they might sometimes say they need to go home because nothing is wrong with them medically, but at other times because they prefer in-home nursing care, etc.  In that case, they are being inconsistent.  In addition to reasonableness and consistency in decision-making, it is often relevant and indeed necessary to assess for basic thinking and memory capacity.  Can the individual understand and retain the information needed to make a given decision, or perform a certain action?  These basic cognitive capacities can be assessed through a neuropsychological exam that includes measurement of receptive and expressive language, new learning/memory, and “executive” functions (such as attention, speed of information processing, concept formation, etc.).

As concerns managing financial affairs (such as determining which daily or monthly expenditures to make, etc.), again one must first determine the specific functions at issue.  Then, as with other forms of capacity, one conducts an interview to determine to what extent an individual is both reasonable and consistent as concerns their decision-making on financial matters, can carry our certain financial functions, etc.  Once more, a basic cognitive exam is also in order, with measures of ability to calculate, etc. included as needed.

Testamentary capacity (related to the drawing up of a will) is one of the more complicated areas to assess.  According to Marson et al (2005), there are 4 basic testamentary areas in which examinees should be asked to show cognitive capacity:

1.       understanding the nature of a will (what is a will, how is it to be drawn up, etc.);

2.       understanding/recollecting the nature and situation of one’s property (what do I own, what condition is it in, where is it located, etc.);

3.       knowledge of persons who are the natural objects of one’s bounty, or property to be bequeathed in a will (who are my natural heirs, are they fit to receive certain types of property, etc.), and

4.       knowing the manner in which the bounty is to be distributed (who should receive which items or assets, under what conditions, etc.).

There are different types of neuropsychological tests that will be appropriate for assessing each of the basic testamentary domains noted above.  For example, tests of receptive and expressive language should be useful in determining whether an individual has the capacity to understand the nature of a will.  Tests of memory should be helpful in determining whether an individual has the basic capacities needed to recall the nature and situation of his or her property.  In the end, a thorough review of the individual’s relevant history, an interview concerning the testamentary capacities at issue (with both examinee and collateral input), and appropriate neuropsychological testing (including emotional measures to rule out the presence of depressive disorder, etc. that might be affecting cognition) will all be helpful in determining whether a given individual has adequate testamentary capacity.

For more information on elder capacity evaluations (including as concerns testamentary capacity), please see Assessment of Older Adults with Diminished Capacity: a Handbook for Psychologists, sponsored by the American Bar Association Commission on Law and Aging and the American Psychological Association (APA).

Jeffrey J. Gaines, Ph.D., ABPP-CN, Metrowest Neuropsychology

http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf