Morrison & Foerster LLP: Dementia and Legal Capacity

Morrison & Foerster LLP: Dementia and Legal Capacity

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:

Can the patient:

1. Respond knowingly and intelligently to queries about the medical treatment?

2. Participate in the treatment by means of a rational thought process?

3. Understand:

    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 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:

    1.      The individual's alertness and attention, including:

    a.       Level of consciousness;

    b.      Orientation to time and place; and

    c.       Ability to concentrate.

    2.      Information processing, including:

    a.       Short and long-term memory;

    b.      Ability to understand and communicate with others;

    c.       Recognition of familiar objects and persons;

    d.      Ability to understand and appreciate quantities;

    e.       Ability to reason using abstract concepts;

    f.       Ability to plan and organize and to carry out actions in one's self interest; and

    g.      Logical reasoning.

    3.      Deficits in function may be demonstrated by severely disorganized thinking, hallucinations, delusions, and uncontrollable, repetitive, or intrusive thoughts.

    Practical Determination of Capacity

    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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