Trusts and Estates

Ca. Trs. & Estates Quarterly 2018, Volume 24, Issue 1


By Lisa M. Gibbs, M.D.,* Christopher Carico, Esq.** and Lilian H. Walden, Esq.**


Despite a lack of mental health training, trust and estate attorneys often have to assess the cognitive capacity of clients and potential clients. Making an initial assessment is sometimes unavoidable. Before any will or trust is drafted, gift is made, or financial elder abuse litigation is started, the thoughtful attorney must answer two threshold questions: Does the client have the capacity to make this decision? Is the client making the purported decision voluntarily or as a result of undue influence?

Where capacity is unclear and money is no object, the experienced attorney will request a neurocognitive assessment and written report from a mental health professional, frequently a psychiatrist, neurologist, geriatrician, or neuropsychologist, to determine the degree of the client’s impairment and level of capacity. But comprehensive neurocognitive assessments are expensive and can make the entire estate planning project unaffordable for some clients and potential clients. The client who comes to the attorney for a "simple" trust amendment may balk when told he or she will need a comprehensive neurocognitive assessment costing several thousand dollars. In such cases, can or should the attorney rely on his or her own ability to assess capacity using inter-personal interview techniques honed over years of practice? Are there situations where the attorney should consider administering cognitive screening tools, like the Mini-Mental State Exam? How reliable is the score from the most recent Mini-Mental State Exam administered during the client’s 15-minute appointment with his or her primary care physician for assessing capacity? With an aging population, these questions are not likely to go away soon.

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