Assessing mental capacity and susceptibility to undue influence

Abstract

Clinicians are commonly asked to participate in the determination of an individual's mental capacity and susceptibfity to undue influence. Vague statutory definitions and lack of operational criteria for both determinations have contributed to inconsistency in the quality and usefulness of expert input to these determinations. Questionnaire responses of 119 probate judges from the U.S. indicate that this input is quite influential despite the problems mentioned above. This paper presents and discusses the judges' views on selected procedural and conceptual aspects of expert evaluation and testimony.The legal system employs concepts called "mental capacity" (MC) and "susceptibility to undue influence" (SUI). Despite

The marriage of psychology and law: testamentary capacity

“…Although entirely possible, some feel that lucid intervals may be more legal loophole than clinical reality (Marson et al, 2004). This highlights the benefit of having a healthcare professional with experience in assessing cognition present at the time of the execution of these enduring documents (Clow & Allen, 2002;Spar et al, 1995).…”

“…A survey of 119 probate judges in the United States revealed that roughly equal numbers of physicians, psychiatrists and allied mental health professionals were involved in cases involving mental capacity (Spar, Hankin, & Stodden, 1995). Notably, judges found expert testimony to be extremely influential in 51% of capacity cases and 37.4% of undue influence cases.…”

Civil competencies.

“…Finally, a few investigators have examined the relationship between professionals' views and the legal components of testamentary capacity. Spar, Hankin, and Stodden (1995) surveyed 300 members of the National College of Probate Judges for their views on mental capacity and the factors that influence it. Out of 119 responding judges, 52% viewed a testator's recognition of property from a list as sufficient demonstration of knowing the nature and extent of one's bounty.…”

Financial and testamentary capacity evaluations: procedures and assessment instruments underneath a functional approach

“…It is also important that the mental health professional carefully documents the steps and methods used in the evaluation (Sahadevan et al, 2003). These specifications have an important role in the communication of capacity assessment results in order to minimize differences between the opinion of mental health professionals and the ultimate legal decision (Spar et al, 1995). Reference to some intervention and treatment recommendations should be considered by mental health professionals as well because it might imply a need for less restrictive legal protection measures (Moye et al, 2005).…”

“…Impairment of financial abilities has legal consequences because of the need to protect the incapable person from exploitation or abusive situations (Moye et al, 2005;Hebert and Marson, 2007). Although the need for financial capacity determination arises in all clinical and age groups, the most common groups in which decision-making capacity is questioned are dementia, depression, anxiety, psychotic disorders, hypomania (see Spar et al, 1995;Pinsker et al, 2010), as well as in the general elderly population because of the associated cognitive decline (Streisand and Spar, 2008). Challenges to testamentary capacity, somewhat related to, but distinct from financial tasks, also commonly arise in older age groups.…”