Mental Capacity

Richard Mayberry presented this topic in 2010 to eldercare professionals and in 2011 to practicing lawyers.

Legal Capacity to Sign Legal Instrument

The effects of aging and the growing prevalence of dementia in the older demographic population requires that the elder law attorney assess capacity of a prospective client to sign legal instruments.

Competency and Diminished Capacity

Diminished capacity and incompetency are not the same. 
A threshold determination is sufficiency of legal capacity to engage a  lawyer and to carry out the specific legal transaction(s) under consideration. 

Richard Mayberry plans often with clients with diminished and concurs  with the American Bar Association that 

“a client with diminished capacity often has the ability to understand, deliberate upon and reach conclusions about matters affecting the client’s own well-being.”  see  Comment to ABA Model Rule 1.14

Levels of Capacity

The levels of capacity are:
  • Testamentary capacity-knows the natural objects of his or her bounty, understands the nature and extent of his or her property, and interrelates these elements sufficiently to make a disposition of property according to a rational plan. Capacity is required only at the time the will was executed. 
  • Donative capacity-understand the nature, purpose and effect of the gift, nature and extent of the property given, and have a knowledge of the natural objects of the donor’s bounty. 

Presumption of Mental Capacity

Mental capacity is presumed.The presumption is overcome by “red flags” in cognitive, emotional, or behavioral anomalies during the interview or from information provided by family members.

Cognitive signs  of incapacity are:
  • Short-term memory loss or communication problems. For instance, the client may have difficulties finding a particular word or naming common items.
  • Comprehension problems
  • Lack of mental flexibility
  • Calculation problems, or 
  • Disorientation. 

Emotional signs of incapacity are:
  • Significant emotional distress
  • Sign of an extremely wide range of emotions during an interview
  • Highly inconsistency in the person's oral speaking abilitiesBehavioral signs of incapacity are:
  • Delusions
  • Hallucinations
  • Poor grooming or hygiene. For instance, older adults suffering from dementia may wear multiple layers of clothing. 
Competency Affirmation

When comptency is in a gray area, Richard Mayberry will secure a determination from the primary treating physician.

Cognitive factors can be mitigated in the case of diminished capacity. A client may appear confused because of stress, grief, or depression. Signs of disorientation and confusion may be caused by medical conditions or medications-both of which are subject to change.

Aging also plays a significant part. Normal mental status may vary during the day depending on the energy of the senior. For instance, clinicians have learned to test older clients in mid-morning when the client is most alert, since fatigue could cause lower performance. In addition, losses in hearing and vision, that are normal with aging, diminish functioning but not mental capacity. Finally, the individual’s education, life and job-related experience, and sometimes socio-economic background, may impair the mental ability of the individual.

One's ability to articulate reasoning leading to decisions, the consistency of these decisions, the ability to appreciate the consequences of a decision, and the substantive fairness of the decision are some of the factors RIchard Mayberry assesses.

Dementia usually occurs in older age. It is rare in people under age 60. The risk for dementia increases as a person gets older. Dementia is a loss of brain function that occurs with certain diseases which affects memory, thinking, language, judgment, and behavior.

Most types of dementia are nonreversible (degenerative) so that the changes in the brain that are causing the dementia cannot be turned back. Lewy body disease is a leading cause of dementia in elderly adults [abnormal protein structures in brain].

Dementia also can be due to many small strokes; the strokes are often not detected by the person or physician, and the condition is called vascular dementia.

Persons with these medical conditions often will develop dementia:
  • Parkinson's disease
  • Multiple sclerosis
  • Huntington's disease
  • Pick's disease
  • Progressive supranuclear palsy
Brain infections, such as HIV/AIDS and Lyme disease

Attribution to Dementia is estimated to double every five years in the elderly. While this disorder affects only 1% of persons 60 years old, it affects approximately 30% to 45% of persons 85 years old. 

Attribution to NY Times online.

Stages of Dementia

"Mild Cognitive Impairment" 

Mild cognitive impairment is a stage between normal forgetfulness due to aging and the development of dementia. Mild problems with thinking and memory that do not interfere with everyday activities develop and a person is aware of the forgetfulness.

Not everyone with MCI develops dementia. However, when dementia does occur, it usually gets worse and often decreases quality of life and lifespan.

How quickly dementia gets worse is different for each person. Generally, the quicker dementia progresses, the more likely that it will worsen quickly.

Lawyers, Doctors Job

Some symptoms include:

  • Forgetting recent events or conversations
  • Difficulty performing more than one task at a time
  • Difficulty solving problems
  • Taking longer to perform more difficult mental activities

The early symptoms of dementia can include:

  • Language problems, such as trouble finding the name of familiar objects
  • Misplacing items
  • Getting lost on familiar routes
  • Personality changes and loss of social skills
  • Losing interest in things you previously enjoyed, flat mood
  • Difficulty performing tasks that take some thought, but that used to come easily, such as balancing a checkbook
More Significant Mental Impairment

As the dementia becomes worse, symptoms are more obvious and interfere with the ability to take care of yourself. 

The symptoms may include forgetting details about current events and events in the person's own life history and losing awareness of who one is. Other symptoms may include:

  • Change in sleep patterns, often waking up at night
  • More difficulty reading or writing
  • Poor judgment and loss of ability to recognize danger
  • Using the wrong word, not pronouncing words correctly, speaking in confusing sentences
  • Withdrawing from social contact
  • Having hallucinations, arguments, striking out, and violent behavior
  • Having delusions, depression, agitation
  • Difficulty doing basic tasks, such as preparing meals, choosing proper clothing, or driving

Severe Dementia

People with severe dementia can no longer:

  • Understand language
  • Recognize family members
  • Perform basic activities of daily living, such as eating, dressing, and bathing

Other symptoms that may occur with dementia:

  • Incontinence
  • Swallowing problems

Dementia can often be diagnosed with a history and physical exam by a skilled doctor or nurse. A health care provider will take a history, do a physical exam (including a neurological exam), and perform some tests of mental function called a mental status examination.

Attribution to Stages of Dementia section, and for further information on it, see NY Times online paper under the topic "Dementia." 


Alzheimer's disease is the most common type of dementia and accounts for 50 to 70 percent of dementia cases. Alzheimer's is the sixth leading cause of death in the United States. Those with Alzheimer's live an average of eight years after their symptoms become noticeable to others, but survival can range from three to 20 years, depending on age and other health conditions. 

Attribution to Alzheimer's Disease section, and for further information on it, see National Alzheimer's Association online.

Video Taping and Mini-Mental Status Examination 

Elder counsel with litigation experience are advantaged in not only making the competency determination, but how to provide it. Videotaping and/or the use of  cognitive screening instruments are helpful tools, but may become a "dual edge sword" to the lawyer without trial experience for they may preserve evidence of incapacity or incompetency.

The most popular screening instrument is the 30-item Mini-Mental Status Examination (MMSE).  It provides quick but blunt assessment of overall cognitive mental status. 

Care is taken who should administer the test and interpret it. Realize the screening exams pose a risk of producing both false positives and false negatives in conclusions.    

Maximizing Capacity of Older Adults

An experience attorney takes steps to maximize the capacity of an older client. Some include:

· Take the time to “break the ice” and maybe speak about areas of common interest

· Interview the client alone to ensure confidentiality and to build trust

· Address the confidentiality of the relationship

· If the client is more comfortable with a support person, this person may be included for a portion of the interview

· An older client should be encouraged to participate as much as possible, therefore the conversation can be directed to the client rather than to the support person

Often is necessary to spend more time with an older client and multiple sessions to develop the appropriate relationship to aid the older client.

Other aids employed include:

  • Minimize background noise, look at the client when speaking, speak slowly and distinctly, use a lower pitch without over-articulating or shouting, and sit close to the client.  
  • Preparation of a written summary and follow-up materials.

If an attorney notices mitigating factors of incapacity, the attorney assess them in order to determine capacity.

Mild problems of capacity to more than mild or substantial concerns of capacity may lead to a medical evaluation. 

A person without capacity may not prepare an estate plan or elder law plan, and will rely upon the agent to the person's power of attorney and the disability trustee of a trust to interface with counsel.