Trusts and Estates

Ca. Trs. & Estates Quarterly 2023, VOLUME 29, ISSUE 1


Written by Jonathan Mueller, MD1

When questions of legal capacity arise, attorneys typically turn to a physician or psychologist to help determine whether a client has or had the mental capacity to create a will or trust, make a gift, or enter into a legal contract. However, the doctors who are asked to perform these determinations are frequently unaware of the sliding scale of capacity laid out in Anderson v. Hunt.2 The 2011 ruling in this seminal case distinguished the proof necessary to establish capacity to execute a simple will or trust, from the proof necessary to establish capacity to execute a more complex estate planning document or other legal document that can have immediate personal and economic significance, such as a contract.

Mental impairments may prevent a transferor from understanding the risks, benefits, and consequences of his actions. They can also lower an individual’s awareness of attempts to exploit them, as well the ability to resist those attempts. For example, impaired arithmetical skills may make it hard to appreciate the shifting value of stocks, real estate, or other property. Visuospatial difficulties may prevent an individual from grasping the value of part of an estate in relation to the estate as a whole. Short term memory loss, often the earliest sign of dementia, can prevent an elderly individual from recalling when a child last visited or what was discussed or promised during a recent telephone call or visit from a son or daughter.

The three most frequently used cognitive screening tools employed by physicians in the United States are the Mini-Mental State Examination (MMSE),3 the Montreal Cognitive Assessment (MoCA),4 and the St. Louis Mental Status (SLUMS).5 These tests sample performance in the cognitive domains of orientation, attention span, language, memory, spatial skills, arithmetic functioning, and executive functioning. They employ metrics (point spreads) of varying lengths to measure impairment in separate cognitive domains. Scores from the different domains are added together to generate a sum score that ranges from 0 to 30. Each of these tests has its own set of cut-off points for determining whether the overall score falls within the normal range or suggests impairment. When scores fall outside the normal range they are classified as indicating either mild cognitive impairment (MCI) or dementia that is mild, moderate, or severe.

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