| Determining diminished capacity |
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Another red flag is behavioral change.
"You age in character," says Clayton. "You become
more of how you've always been. A person who is altruistic becomes
more so as they age; a person who is feisty becomes more so as they
age."
The common cognitive measure is threefold:
- What is the person capable of doing independently?
- Are they able to monitor their own safety and well-being?
- Are they able to weigh risks and benefits, and if not, to what
degree?
Understandably, lawyers and estate attorneys are hesitant to even
broach the subject of capacity with their clients.
"They usually assume that a person has capacity unless some
really egregious behavioral changes are apparent, such as refusing
to let the attorney meet with them alone," she says. "There
are signs that attorneys know about, but they aren't the most subtle
signs."
The lawyer's bind
The topic of capacity is generating increased interest in elder
law and estate planning circles these days as the baby boomers enter
their sixties and life expectancy edges ever longer.
To help its members navigate this client minefield,
the American Bar Association's Commission on Law and Aging prepared
a book with the American Psychological Association called "Assessment
of Older Adults with Diminished Capacity: a Handbook for Lawyers."
It acknowledges that, like it or not, family lawyers will be increasingly
called upon to make an initial assessment of a client's capacity.
L. William Schmidt, Jr., an estate attorney with Schmidt
& Horen LLP in Denver, says that's one of the toughest tasks
for any lawyer. After all, lawyers are hired to do the bidding of clients, not question their sanity.
'Call me on Mom's good day'
"It's a fluid thing; they may have capacity today and not tomorrow,"
he says. "If my client is in a nursing home, I may say, 'Call
me when Mom's having a really good day and I'll run out,' because
I want to make sure that we don't go out on a day when she doesn't
know if she's here or in Anchorage."
Capacity also depends on the legal task at hand, such
as the creation of a will.
"I had a client one time who was completely paranoid, people
had followed her in, they were coming into her apartment through
the chimney, all these clearly irrational things, but when I talked
to her about her property, she could tell me down to the dime what
she owned. Her fantasy didn't interfere at all with her understanding
of what she had and who she wanted to get it."
If capacity is in question, lawyers are advised to meet with the
client alone (to assess any undue influence from caregivers), optimize
the interview environment to the client's needs (including meeting
in the client's home), measure the client's wishes against the client's
history and values, and presume capacity.
To avoid the heartaches and hard feelings that diminished capacity
can cause, Schmidt recommends that his clients create a revocable
living trust to house their assets.
"If you have a definition of incapacity defined well enough
in your document that it doesn't create a big problem, say that
my doctor decides, then you can transition the management of their
assets much more easily than if you had either a power of attorney
or you had to go get a court-administered guardianship," he
says. "The will only says what happens when I die. I'm frankly
not as concerned about what happens when I die as while I'm still
living."
Jay MacDonald is a contributing editor based in Mississippi.
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