Mental capacity issues are commonplace in California trust and probate litigation.  Jonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity,” graciously offered to share his thoughts with us here.

Dr. Canick has practiced neuropsychology for over 30 years. He is a member of the departments of psychiatry and neuroscience at California Pacific Medical Center, an associate clinical professor, University of California, San Francisco, and a member of the Board of Directors of Legal Assistance for Seniors, an Oakland-based nonprofit. He was a co-author of a research paper entitled “Reversal of Cognitive Decline in Alzheimer’s Disease” that was published in the June 2016 issue of the journal Aging.

What work do you do related to trust and estate disputes?

I consult attorneys on both the contesting and defending sides with regard to issues of cognitive and testamentary capacity as well as vulnerability to undue influence, exploitation and financial elder abuse. I help individuals, families and professionals understand a person’s cognitive and psychological status and what that may enable the person to do or prevent the person from doing. Sometimes the case involves a posthumous assessment of someone’s cognitive capacity.

Big picture, what is the relationship between aging and mental function?

Generally speaking, and in contrast to most people’s biases and presumptions, significant changes in cognitive and mental functioning are not a normal part of aging. When significant change or alteration occurs, it typically signifies the emergence of some disorder or some other adverse or detrimental effect that hopefully receives attention.

It is not possible to possess wisdom in youth. While sensorimotor changes occur more notably as we age, the brain is equipped with an endless ability to acquire new information. Even though the incidence of dementia increases notably past the seventh decade, the majority of people in their 90s do not suffer from major neurocognitive disorders. Aging is not a neurodegenerative disease. Neurogenesis, the ability to generate new brain cells occurs throughout the lifespan, enables us to learn new information and develop new abilities throughout our life. Some people experience changes in their processing speed that impacts the proficiency with which information is acquired, stored, retrieved, and applied, though this does not involve an outright loss of function.

How can a neuropsychological evaluation assist in estate planning? 

A neuropsychological (NP) evaluation can identify deficits and strengths in mental functioning and helps determine whether a person has or lacks sufficient cognitive function to perform a given act.

As the California Probate Code makes clear, a determination that a person lacks sufficient mental capacity to engage in estate planning cannot be based on a diagnosis but rather rests on the amount of ability a person has for effective information processing. So, it is possible for someone with a diagnosis of Alzheimer’s disease to possess capacity to create or amend a trust while someone else without any such diagnosis may lack capacity.

People often make the mistake of presuming that cognitive capacity can be eyeballed or determined through a conversation. Capacity is often confused with coherence.  However, an incapacitated individual can be articulate, conversant and seem completely coherent. As has been long reported in the New England Journal of Medicine, even highly trained/educated physicians who attempt to evaluate capacity through interview of their own patients are wrong 50% of the time. That is, absent some structured measurement of cognitive functioning, capacity determinations even by trained clinicians have a coin’s toss reliability. Following this point, the Gerontological Society of America has determined that most demented, let alone cognitively disordered, patients do not get identified in the primary care setting.

Because California Probate Code sections 810 to 812 were written in the language of information processing, NP testing dovetails with these statutory provisions. NP assessment determines whether someone possesses a deficit in one or more mental functions, such as alertness and attention, information processing, thought processes, and ability to modulate mood and affect.

NP testing can determine whether a person is sufficiently attentive and able to acquire, learn, absorb and retrieve new information. Information that is not acquired or absorbed cannot be further processed, manipulated, retrieved, or weighed, crucial for the activity of decision-making. Information processing deficits affect conversations, agreements and recall of events.

In addition to determining whether there is a deficit in one of the aforementioned mental functions, the NP data provides information about the amount of ability/deficit present. NP assessment helps determine whether there is a correlation between the deficit and the decision or acts in question.  An evaluation determines whether the deficit is sufficient to significantly impair a person’s ability to understand and appreciate the consequence of an action or decision.

My own experience confirms that interviews, in the absence of NP assessments, are not reliable predictors of capacity. I continue to be surprised. I’ve interviewed people who seemed clearly competent, but then when tested proved cognitively incapacitated. And there are those occasions when the opposite is true. There are some disorders, such as Parkinson’s, that can result in significant communication difficulties, resulting in the false impression of incompetence even when cognitive capacity is present.

Do screening tests like the MMSE (Mini-Mental State Exam) and MoCA (Montreal Cognitive Assessment) serve as valid measures of cognitive capacity?

Such screening tests are quick and simple to administer, which is a benefit, but there are many limitations and shortcomings to them as well. While a very poor performance is significant, a very good result could be generated by an impaired formerly high functioning individual; scoring in the so-called “normal range” can reflect a significant decline in formerly high functioning persons. In general, screening tests are not an adequate substitute for a cognitive capacity evaluation. The MMSE has proven particularly insensitive to the cognitive skills needed for capacity. The MoCA measures more cognitive domains and has better normative data. But these tests are limited, not diagnostic, and are particularly insensitive for capturing changed cognition in higher functioning persons.

An article entitled “The (Folstein) Mini-Mental State Exam: Just How Useful Is It for Assessing Capacity?” in Volume 24, Issue 1 (2018), of California Trusts and Estates Quarterly, has an interesting discussion on this topic.

Can you elaborate on the challenges of evaluating the mental capacity of “high functioning” individuals?

Because of their highly developed conversational and social skills, typically coupled with a range of automatic routines/competencies, higher functioning individuals are less likely to be diagnosed, even when major neurocognitive disorders (i.e. dementia) are present, until they are grossly symptomatic.

Most typically, and unfortunately, by the time a higher functioning person is diagnosed with a major neurocognitive disorder, there is greater disease burden present and a more rapid decline associated with the more advanced stages of dementia. While identifying and intervening early has many challenges, it also has many benefits. Since they possess more developed brains, higher functioning individuals may respond more strongly to interventions geared towards enhancing, or preserving, existing brain function.