Dr. Ken Shulman et al wrote an article concerning mental capacity which was recently published in the Canadian Journal of Psychiatry. Naturally, it was directed to other psychiatrists.
However, it’s also very important for both lawyers drafting Wills and real estate agents selling or buying properties for seniors. Does the client have the necessary capacity. What should you look for? What are some of the danger signs?
Here’s an extract from the article:
“Red Flags
The growing importance of dementia (major neurocognitive disorder) in relation to mental capacity is self-evident. However, despite advances in awareness, such diagnoses are often missed even by health care professionals. We highlight “red flags” that increase the likelihood that a client may be suffering from dementia, and thus, the concern that a client may not have the capacity to execute a Will.
- The overall prevalence of dementia in a population aged 65 and over is about 8%, while in those over 85 the prevalence is greater than 30%. It is only at this great age that the prevalence becomes significant from a demographic perspective. However, this means that great age alone becomes a red flag.
- A testator who is living in long-term care has a high likelihood of dementia, yet the rate of detection in this setting is around 50% worldwide.
- A dramatic change from a prior pattern of behavior, attitude, and thinking—especially when associated with suspiciousness toward a family member. Paranoid delusions, especially those of stealing, are common in the early stages of dementia. Notably, one can suffer from a delusion, but if it does not influence the disposition, an individual may still be considered capable.
- Inconsistent or unusual instructions. Consistency is an important hallmark of mental capacity. If vacillation in decision-making or multiple changes are not part of a past pattern of behavior, then one should be concerned about a developing dementia.
- A deathbed Will where there is a strong likelihood that the testator may be delirious. Similar concerns apply when a Will has been executed while the testator is in an intensive care unit or palliative care unit prior to death
- Complexity or conflict in the milieu of a vulnerable individual may compromise their ability to appreciate competing claims.
- Known cognitive or mental disorder that creates a vulnerability to undue influence.
Conclusion
In forming an opinion on testamentary capacity for the court’s consideration, the expert provides a “clinical opinion” on the balance of probabilities. This will be only one of several inputs for the court’s determination including other expert opinion(s) and the evidence of other witnesses in the context of precedent case law. Alternatively, no opinion on the ultimate question is expressed, but the expert clarifies the nature and severity of any mental or cognitive disorders and how they might impact on specific criteria for testamentary capacity.
While contemporaneous assessment will remain the gold standard as a means of exploring and probing the specific criteria for testamentary capacity as in Banks v Goodfellow, there is still a role for retrospective capacity assessments by qualified medical experts. Medical experts should familiarize themselves with the specific needs of the law in contentious cases and learn the role they can play as well as their limitations in helping the courts come to the most informed legal opinions.”
COMMENT
These are matters which should be noted by both lawyers and real estate agents.
Brian Madigan LL.B., Broker