Dementia is the most common threat to loss of legal capacity among the elderly, although other conditions giving rise to brain injury such as a stroke may also impact upon capacity. A diagnosis of dementia is not evidence that a person lacks capacity. Whilst the progression of cognitive difficulty is somewhat predictable on the basis of dementia type and stage, heterogeneity of dementia presentations and influence of factors such as pre-morbid level of functioning and co-morbid mood disorder on disease expression prevents formulation of a capacity opinion on the basis of dementia type and stage alone.
As a discipline, older adult neuropsychology is uniquely placed to assess capacity in the elderly, combining knowledge of neurodegenerative disease with extensive training in cognitive and functional assessment and the application of strategies to maximise functioning and decision making. Issues of capacity in dementia most frequently arise within the context of family conflict around the elderly person’s level of dependence and required support. In many cases, the source of such conflict stems from a genuine lack of understanding (on the part of one or more family members) of the person’s diagnosis and associated cognitive and functional difficulties. Neuropsychological assessment can provide essential objective evidence of an individual’s capabilities and areas of difficulty where there is incongruence between the information provided by different family members.
Typical referral scenarios
Martin is a 74-year-old former solicitor diagnosed with a form of dementia involving progressive loss of language, who wished to revoke the Enduring Power of Attorney (EPOA) in which he had previously appointed his ex-wife. He was referred for assessment of his capacity to make this decision, as despite his severe language problems his son noted that other decision-making skills had been maintained.
Edward, an 89-year-old father of four, had acquired considerable wealth through property investment over his lifetime, but two of his children raised concerns about his capacity to continue to manage his finances. He did not have a diagnosis of dementia and had no awareness of any cognitive difficulties. The Guardianship Tribunal placed an order for Edward to undergo a neuropsychological assessment in relation to his financial management capacity.
Practice and ethical considerations
In approaching any assessment of capacity (whether with a view to determining the capacity to make a Will, or to appoint a Power of Attorney or Guardian, or to manage one’s own finances), it is vital to provide the elderly individual with an explanation of the nature, scope and purpose of the assessment, terms of confidentiality and information dissemination. It is also vital to maintain clarity around who the client is in these often complex situations, and to keep the elderly person at the centre of the assessment. Although part of the assessment is likely to involve seeking additional information from family members, the interview and assessment with the elderly person should be conducted without other interested parties present in order to minimise any influence or interference.
The clinician will need to retain some level of flexibility with regards to the immediate testing environment, as it is not always possible to secure an ideal setting when consulting elderly clients. This may involve conducting the assessment over a series of shorter sessions or adjusting the administration of a particular test.
There is a need to balance an individual’s autonomy with protection from harm and exploitation, so consideration of the risk and benefit ratio associated with the consequences of impaired decision making is required. It is also important to distinguish impaired decision making from poor decision making. The question is not whether the decision made is one that is sound, but whether the fundamental processes that enable the decision to be made are intact.
Considerations for test selection and interpretation
Capacity is decision and time specific, and cannot be inferred from one decision or one point in time to another. Each decision requires a fresh assessment, based on the complexity of the decision and context in which it is being made. There is a need, as a result, for a tailored approach to assessing capacity and the selection of assessment tools should reflect the cognitive constructs underlying the legal test in question. The assessment should integrate the findings from a structured interview, neuropsychological assessment of cognitive functions that underpin the legal question, a functional, emotional and observational assessment, and consideration of ways to maximise the individual’s capacity.
The relevance of any test findings to the particular capacity being assessed must be explained clearly in the assessment report. The legal profession and jurors are reliant on the opinions of neuropsychologists, as experts in the assessment of human cognitive abilities, to formulate an educated view and ultimate decision. If the reasoning behind the neuropsychologist’s expert opinion is not detailed sufficiently, this can result in inadmissibility of the findings in legal settings.
- New South Wales Attorney General's Department. (2008). Capacity Toolkit. Available at: capacity_toolkit0609.pdf
- Moye, J., Marson, D., & Edelstein, B. (2013). Assessment of Capacity in an Aging Society. American Psychologist, 68(3), 158- 171.
- American Bar Association Commission on Law and Aging, and American Psychological Association. (2008). Assessment of older adults with diminished capacity: A handbook for psychologists. Washington, DC: Author.