By Wendy M. Greenberg, Esq., Morrison & Foerster LLP
Dementia is a broad term used to
describe impairment in multiple cognitive activities, including memory,
language, motor skills, visuospacial skills, and executive function. Dementia is fairly common, affecting
approximately one-third of all persons over the age of 85, with 60-75% of such
cases caused by Alzheimer's disease. When
you have a client whom you, or the client's family members, suspect to be
suffering from dementia, how do you know if the disease has progressed to the
point of causing legal incapacity?
Legal Standards of Capacity
In California, there are three
relevant standards of capacity, the application of which depends upon the
nature of the action to be taken by the client.
Under California Probate Code
Section 4609, "capacity" means a person's ability to understand the nature and
consequences of a decision and to make and communicate a decision, and in the
case of proposed health care, the ability to understand its significant
benefits, risks, and alternatives. With
respect to health care decisions, California Probate Code Section 813 provides
factors for a judicial determination of capacity:
1. Respond knowingly and intelligently to queries about the medical treatment?
2. Participate in the treatment by means of a rational thought process?
a. The nature and seriousness of the illness?
b. The nature of the medical treatment?
c. The probable degree and duration of the risks and benefits of the treatment, and the consequences of lack of treatment?
d. The nature, risks, and benefits of reasonable alternatives?
Testamentary capacity (the
capacity to make a will) is determined pursuant to California Probate Code
Section 6100.5, which provides in part:
(a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
(1) The individual does not
have sufficient mental capacity to be able to (A) understand the nature of the
testamentary act, (B)understand and recollect the nature and situation of the
individual's property, or (C) remember and understand the individual's
relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers
from a mental disorder with symptoms including delusions or hallucinations,
which delusions or hallucinations result in the individual's devising property
in a way which, except for the existence of the delusions or hallucinations, the
individual would not have done.
Finally, the capacity to contract is determined under the
common law standard cited in Estate of
Bodger (130 Cal.App.2d 416 (1955)) [enhanced version available to lexis.com subscribers]: whether the principal understands the
nature and extent of the transaction.
Historically, this standard has dictated the capacity necessary to
execute a trust or a power of attorney, but courts (including in California;
see Andersen v. Hunt, California
Court of Appeal, Second District, B221077, June 14, 2011) [enhanced version / unenhanced version available from lexisONE Free Case Law] have begun to
apply the testamentary capacity standard where a trust or other contractual
agreement is in essence a testamentary document.
California Probate Code Section 811 provides substance to all
of the standards described above in the form of tangible factors to be
considered in a judicial capacity determination. In short, the factors are:
individual's alertness and attention, including:
to time and place; and
and long-term memory;
to understand and communicate with others;
of familiar objects and persons;
to understand and appreciate quantities;
to reason using abstract concepts;
Ability to plan and organize and to carry out actions
in one's self interest; and
Deficits in function may be demonstrated by severely
disorganized thinking, hallucinations, delusions, and uncontrollable,
repetitive, or intrusive thoughts.
Practical Determination of
In practice, lawyers tend to
assume that a diagnosis of dementia and a subsequent determination of
incapacity is the responsibility and domain of a physician, and we refer
clients to their family doctors to make that determination. While such cases absolutely should be
referred to physicians for the management of the clients' physical health, a
review of the legal standards does not necessarily indicate that a doctor is in
the best position to determine whether an individual meets the standards for the
capacities to contract or to make a will.
Physicians certainly have tests at their disposal to aid in the
diagnosis of dementia (most commonly, the Mini Mental State Examination (MMSE)),
but any overlap between the factors used to determine legal capacity and the
deficits tested for in the MMSE is merely coincidental. At present, there is no physician's screening
instrument tailored to the determination of these legal capacities.
Particularly in the case of
testamentary capacity, where the standard is quite low (knowing the nature and
extent of one's property, and whom might be the natural recipients), any test a
physician might employ is bound to be overly sensitive. To protect our clients'
wishes to the extent possible, lawyers need to develop a test of their own,
tailored to the relevant standard and which can be employed and the results
recorded at the time of execution of a document.
Morrison & Foerster's
Trusts and Estates group provides sophisticated planning and administration
services to a broad variety of clients.
If you would like additional information or assistance, please contact Patrick McCabe at (415) 268-6926 or
© Copyright 2011 Morrison &
Foerster LLP. This article is published
with permission of Morrison & Foerster LLP.
Further duplication without the permission of Morrison & Foerster
LLP is prohibited. All rights
reserved. The views expressed in this
article are those of the authors only, are intended to be general in nature,
and are not attributable to Morrison & Foerster LLP or any of its
clients. The information provided herein
may not be applicable in all situations and should not be acted upon without
specific legal advice based on particular situations.
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