Understanding the Mind Behind the Will
As a psychologist with special expertise in working with older adults and assessing financial capacity, I often find myself at the intersection of law and mental health. I have spoken to many attorneys working with elder law and trusts who have questions about when their clients may need a capacity assessment by a psychologist. As you know, testamentary capacity is a legal concept that hinges on an individual's mental state at the time of creating a will. While lawyers are experts in the legal nuances, understanding the psychological underpinnings of testamentary capacity can provide valuable insights, and there are often complex situations where formal testing is necessary.
What is Testamentary Capacity?
Testamentary capacity refers to a person's mental ability to execute a valid will. It involves a complex interplay of cognitive functions, emotional stability, and understanding of the implications of one's decisions. To possess testamentary capacity, an individual must generally:
Understand the Nature and Extent of Their Property: This includes recognizing their assets and debts. While precise accounting isn't necessary, a general awareness is crucial.
Know Their Natural Objects of Bounty: This refers to identifying the individuals who would naturally inherit their property, such as family members or close friends.
Appreciate the Disposition They Wish to Make: This involves understanding the specific provisions of the will, including who receives what and why.
Psychological Factors Influencing Testamentary Capacity
Several psychological factors can impact a person's testamentary capacity. These include:
Cognitive Impairment:
Conditions like dementia, Alzheimer's disease, or traumatic brain injury can significantly impair cognitive functions, making it difficult to meet the requirements of testamentary capacity.
Mental Illness:
Severe psychiatric disorders, such as schizophrenia or bipolar disorder, can distort reality and impair judgment, potentially affecting a person's ability to make sound decisions about their estate. With age, these mental health diagnoses also bring an increased risk of cognitive decline, so there may be a complex interplay between mental health and cognitive symptoms.
Substance Abuse:
Excessive alcohol or drug use can impair cognitive function and judgment, making it difficult to meet the requirements of testamentary capacity. Again, when there is a substance or alcohol use problem combined with aging, the psychological interaction can be complex and affect capacity.
Delirium:
A temporary state of confusion and disorientation, often caused by illness or medication, can impair a person's ability to understand the implications of their decisions. Thankfully, delirium is reversible, though it is a medical emergency because some causes of delirium can be life-threatening if left untreated. For example, delirium can be caused by infections, vitamin deficiencies, medication reactions, unstable blood sugar, or other serious medical issues. A person lacks capacity when they are in a state of delirium, of course, but usually in these cases, a person returns to their baseline once the medical issue is stable.
Undue Influence:
This occurs when a person exerts excessive pressure or coercion on another to influence their decision-making, potentially undermining their testamentary capacity. Older adults, especially those with mild cognitive impairments or disabilities that increase their dependence on others, are at risk for undue influence by opportunistic people who are willing to exploit those vulnerabilities for financial gain.
Assessing Testamentary Capacity
Assessing testamentary capacity is a complex task that often requires a multidisciplinary approach. While lawyers play a crucial role in the legal process, consulting with a psychologist can provide valuable insights. I have learned of a few situations in which lawyers have tried to do their own “in-house” capacity assessments, which is quite concerning, given that attorneys are not qualified to administer and interpret medical tests, perform clinical interviews, or make medical recommendations. To avoid this troubling ethical pitfall, lawyers would be wise to enlist the opinion of a good psychologist with expertise in capacity assessment to complete that piece of the testamentary puzzle!
Here are some key aspects of the psychologist’s approach to assessing testamentary capacity:
Clinical Interview: A psychologist performs a detailed interview to help assess cognitive function, emotional state, and understanding of the will-making process, as well as gaining a good understanding of someone’s history, values, and behavioral patterns.
Neuropsychological Testing: Specific tests can measure cognitive abilities such as memory, attention, and problem-solving. There are also really useful tests that examine financial management skills, independent living skills, and safety awareness (including financial safety), so we can get a sense of someone’s practical abilities in the realm being assessed.
Medical Records Review: Reviewing medical records can provide information about the individual's medical history, including any conditions that may impact their mental capacity.
Observation of Behavior: Observing the individual's behavior, including their interactions with others and their decision-making process, can provide valuable clues.
The Role of Lawyers in Protecting Testamentary Capacity
Lawyers play a vital role in ensuring that wills are executed legally and ethically. When concerns about a client's testamentary capacity arise, lawyers should consider the following:
Thorough Client Interview: Conduct a detailed interview to assess the client's understanding of their assets, beneficiaries, and the implications of their decisions.
Documentation: Document all interactions with the client, including any concerns about their mental capacity.
Consult with Experts: If necessary, consult with a psychologist to obtain a formal assessment of the client's capacity. As I noted above, I do not recommend trying to circumvent or “shortcut” this part of the process, because capacity assessment takes a great deal of training, knowledge, and clinical skill that psychologists uniquely possess.
Consider Undue Influence: Be vigilant for signs of undue influence, such as pressure from family members or caregivers.
Ethical Considerations: Adhere to ethical guidelines and prioritize the best interests of the client.
Start A Testamentary Capacity Assessment in Los Angeles, CA
By understanding the psychological factors that can influence testamentary capacity, lawyers can better protect their client's interests and ensure that their wishes are carried out. Dr. Reger can equip lawyers with the info necessary to accomplish this goal. You can start the assessment process by following these simple steps:
Contact (424) 262-1925 to schedule your appointment
Meet with Dr. Reger
Start experiencing the collaborative benefits!
Other Services Offered By Dr. Stacy Reger in Los Angeles, CA
Capacity assessments are not the only service offered by my Redondo Beach-based practice. I’m also happy to offer multiple neuropsychological and psychological assessments. Other assessments include cognitive and dementia testing, pre-surgical assessments, and med-legal evaluations. In addition to evaluations, I also provide individual therapy, counseling for older adults, and mental health consultations and presentations. Visit my blog for more help today!
