Advocating for the Use of the Cognitive Disabilities Model in Determining Capacity

Capacity refers to an individual's abilities to form rational decisions, specifically the individual's ability to understand, appreciate, and manipulate information and form rational decisions. However, in the specialty of elder law, the number of cases where the client's capacity and decision making are compromised is increasing due to the greater incidence of dementia in the elder population.

"Although lawyers seldom receive formal training in capacity assessment, they make capacity judgments on a regular basis whether they realize it or not. . . . Lacking training in capacity assessment or other aspects of mental health, the average practitioner may argue that lawyers do not and should not perform capacity assessments." (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

Legal Capacity Definitions
"Depending on the specific transaction or decision at issue, as well as the jurisdiction in which one is located, legal capacity has multiple definitions . . . " (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers) Following are examples.

Testamentary Capacity
Testamentary capacity does not require that the person be capable of managing all of his or her affairs. Nor must the person have capacity consistently over time. Capacity is required at the time the document is executed. This person may lack testamentary capacity before and/or after executing the document, but if it is made during a "lucid interval," the document remains valid. (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

Donative Capacity
Donative capacity requires an understanding of the nature and purpose of the gift, an understanding of the nature and extent of property to be given, knowledge of the natural objects of the donor's bounty, and an understanding of the nature and effect of the gift. Some states use a higher standard for donative capacity than for testamentary capacity. (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

Contractual Capacity
Contractual capacity requires the person's ability to understand the nature and effect of the business being transacted. If the act or business being transacted is highly complicated, a higher level of understanding may be needed to comprehend its nature and effect, in contrast to a very simple contractual. (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

Decisional Capacity in Health Care
Decisional capacity in health care is based on each state's advanced directives laws. The Uniform Health Care Decisions Act defines capacity as the person's "ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision." This is rooted in the concept of informed consent. (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

Comment 6 to Model Rule 1.14 of Professional Conduct
In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

"Should a lawyer use formal clinical assessment instruments? It is generally not appropriate for lawyers to use formal clinical assessment instruments such as the Mini-Mental Status Examination (MMSE), as they are not trained in using and interpreting these tests, the information yielded is limited, and the results may be misleading." (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers)

The utilization of the Allen Cognitive Disabilities Model developed by Claudia Allen may be the most accurate way to determine impairment in a client's capacity.

In testamentary capacity, it is suggested that capacity need only be evident at the time of the execution of the document, during a "lucid interval." Yet knowledge of the Cognitive Disabilities Model indicates that a person may appear "lucid" whenever the long-term memory and procedural memory are being tapped. The person has the ability to verbally respond appropriately without evidence of his/her inability to clearly understand the consequences of his/her behavior. The idea of a "lucid interval" is in conflict with one of the theoretical bases of the model—that functional cognition can only be determined by noting a pattern of behavior. It cannot be determined by assessment of one action/behavior alone.

In donative capacity the person must understand the nature and effect of the gift and in contractual capacity the person must understand the nature and effect of the business being transacted. In decisional capacity in health care, the person must have the "ability to understand the significant benefits, risks, and alternatives to proposed heath care and to make and communicate a health-care decision." This is rooted in the concept of informed consent. (Assessment of Older adults with Diminished Capacity: A Handbook for Lawyers)

All these different types of capacities require the cognitive abilities and intact executive skills of persons performing at Allen Cognitive Level 6.

The legal system model of capacity assesses verbal fluency and knowledge held in procedural memory. Persons performing at Allen Cognitive Level 4 and 5 have strong procedural memories. When asked to verbally demonstrate capacity they may use their past well learned skills to make important decisions without incorporating changed circumstances, or clearly considering the secondary effects of their decisions. These executive skills are compromised in persons performing at Allen Cognitive Level 5 and 4 (and below).

Based on the above information, it is evident that lawyers would benefit from the type of assessment that is provided through the use of the Cognitive Disabilities Model in order to determine whether an individual has the ability to clearly understand the consequences of his/her decisions and actions.

The information gathered from assessment performed by therapists knowledgeable in the Cognitive Disabilities Model could assist in determining if the person has the ability to learn, understand, and retain new information that may be needed to complete documents or transactions. In cases where the person has a mild cognitive deficit, the information could provide guidance to the lawyer in providing the type of additional assistance that may facilitate the client's understanding (e.g., providing explanations simply and concretely, providing diagrams, providing information repetitively in a rote manner).

The law requires that a person must have articulate reasoning, understanding of the nature, purpose, and effect of the legal action to be taken, and the significant benefits, risks, and alternatives to a decision. Elder lawyers are faced with the ethical dilemma of providing advocacy for the client who has cognitive deficits. A formal assessment from a clinician versed in the Cognitive Disabilities Model can be helpful to the attorney to determine a clearer picture of the person's ability to understand the issues at hand and make the most appropriate decision.