In general, videotaping is not recommended although experienced practitioners have come to different conclusions on this question. Elder law attorneys with litigation experience may be advantaged in not only making the competency determination, but in 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 main arguments against videotaping the client’s execution of a document are the following: • Videotaping may, in fact, exaggerate the client’s deficits in decisional capacity. • Unless the attorney videotapes all clients, the fact of videotaping may itself be used to raise doubts of capacity. • The videotape cannot be edited to remove portions for any reason without risking ethical or legal violation of evidence tampering prohibitions. A popular screening instrument is the 30-item Mini-Mental Status Examination (MMSE). It provides a quick but blunt assessment of overall cognitive mental status. Care is taken who should administer the test and interpret it. One should realize that the screening exams pose a risk of producing both false positives and false negatives in conclusions. The guidelines of the American Bar Association through the book, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, recommend against conducting clinical psychological screenings, such as the Mini-Mental Status Exam (MMSE), unless one is professionally trained in such testing. |
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