An older adult client who displays symptoms of dementia approaches a lawyer to make changes to her will. Should the lawyer allow her to alter such legal documents? In fact, how can a lawyer determine whether she still has the decision-making abilities to make such changes?

Through the APA and the American Bar Association (ABA) Assessment of Capacity in Older Adults Project, psychologists are helping attorneys and judges handle such scenarios by providing scientific research on how to assess older adults' mental capacities.

"We want to get lawyers to learn how to approach capacity on a preliminary level and how to work better with mental health professionals in making those determinations that are relevant to the [legal] transaction that needs to take place," said Charles Sabatino, JD, assistant director of ABA's Commission on Law and Aging.

To facilitate those determinations, a group of psychologists--including APA's Committee on Aging members--met in 2003 with ABA representatives to create mental capacity-assessment recommendations from a lawyer, judge and psychologist perspective. Those recommendations promote research, collaborations between lawyers and psychologists, and the development and dissemination of publications, said David Powers, PhD, an associate psychology professor at Loyola College in Maryland and APA's liaison to the ABA Commission on Law and Aging.

Specifically, the recommendations call for:

  • Educating professionals about capacity issues and on the assessment tools for determining mental capacity in older adults, such as the Department of Veterans Affairs guide "Assessment of Competency and Capacity of the Older Adult: A Practice Guideline for Psychologists."

  • Consulting with family members, friends or neighbors with knowledge of the older adult's functioning to help make a determination of his or her capacity.

  • Promoting to lawyers, judges and psychologists the choice of capacity measurement instruments as well as the use of different assessment approaches to address specific capacity issues.

  • Emphasizing the effects of education, social class, gender, race and ethnicity on interpretation of test results.

In addition, APA and ABA have co-written a handbook for lawyers, "Assessment of Older Adults with Diminished Capacity: A Handbook for Attorneys"--expected to be published by the end of the year. Since lawyers are often unaware of appropriate assessment resources, the handbook provides an overview of the assessment process, reviews the tests that may be appropriate and explains the indicators of diminished capacity, Sabatino said.

As such, the guidelines and tools for determining diminished capacity are intended to improve reliability and validity of capacity determinations and, therefore, decrease subjectivity, said geropsychologist Jennifer Moye, PhD, assistant psychology professor at Harvard Medical School. Also, she added, the tools address myths and errors about capacity, improve quality and identify key steps in the assessment process.

"As a profession we need to join together and really advocate for high-quality assessments...that do a much better job of protecting older adults," Moye said. In doing this, she encouraged psychologists to further develop specific capacity models and instruments--such as for determining financial transactions and treatment adherence capacity--as well as to educate attorneys, judges and psychologists about quality assessment for guardianship.

The APA and ABA partnership is a step in the right direction, session participants said. The collaboration will benefit clients with diminished capacity by balancing important values of autonomy and dignity of older adults with the least intrusive response to protect them from harm or exploitation, said forensic psychologist and attorney Robert T. Kinscherff, PhD, JD, of the Massachusetts Trial Court in Boston and chair of the APA Ad Hoc Committee on Legal Issues.

"It will give older adults with diminished-capacity issues more quality of care, helping them if they have diminished quality in some areas but not others so that we can discriminate that and not restrict them," he said.

Further Reading

For more information on the Assessment of Capacity in Older Adults Project, contact Deborah DiGilio, APA Office on Aging or visit APA Aging Web site.