Aging of the population will confront lawyers with questions about their clients’ competence to execute wills, sign contracts, assign powers of attorney, and make decisions about their healthcare, finances, or living situation. Sometimes clients are presumed to possess decision-making abilities when, in fact, they do not. And sometimes family members, physicians, or attorneys make legal decisions for presumed incapacitated clients without formal determinations. These circumstances may not provide protection when it is needed or preserve autonomy when it is right to do so. A better understanding of normal cognitive aging and dementia will help lawyers and courts make more informed determinations.

Like other parts of the body, the brain ages and works less well. Normal cognitive aging is associated with declines in memory and other thinking abilities, but these decrements do not interfere with everyday functioning. Dementia impairs multiple cognitive functions (e.g., memory, language, and executive function), compromises everyday functioning, and is caused by different diseases, such as cerebrovascular disease (e.g., stroke), Alzheimer’s disease, and Parkinson’s disease. Discerning whether a client is normal or demented is not the critical question, however, because older people vary substantially in their cognitive abilities. This variability reflects the effects of lifestyle (e.g., education, diet, and exercise), medical conditions (e.g., diabetes, hypertension), medications, alcohol use, and perhaps brain disease. The critical question is whether a client’s cognitive abilities meet the cognitive demands of a legal task, regardless of whether they have dementia or not. The answer to this question determines whether or not the client has intact decision-making capacity.

Decision-making capacity exists on a continuum, beginning with the ability to express a view or communicate a choice, and extending to understanding the choice’s factual basis, appreciating how it directly affects one’s life, and articulating the thought processes that support it. Although Alzheimer’s disease, for example, degrades decision-making capacities, the diagnosis per se does not necessarily prevent someone from making rational choices. In fact, many people with Alzheimer’s disease retain the ability to make rational decisions, depending on the severity of the disease and the complexity, reasonableness, and consequences of the decisions they need to make. In this way, decisional competence is task specific (i.e., the cognitive requirement to execute a will is less than that required to knowingly sign a contract). A corollary to this is that a cognitively impaired person may be able to make competent decisions in some situations but not others. Competence is a legally-determined categorical conclusion (i.e., a person either possesses it or not) that a court reaches.

Consider the testamentary capacity of a client with Alzheimer’s disease who wishes to change her Will. She may know that the Will distributes her property after death, have a general idea of her estate, and decide reasonably to name a child or spouse as heir. The client may have difficulty describing the thinking process that guides her decision, but this does not make her “incompetent.” In this case, the client meets the criteria that define testamentary capacity. Also, using the terms of decision-making, she can communicate a choice, understand the relevant issues, and appreciate their meaning for her and her family.

Another client, at the same stage of Alzheimer’s disease, may possess testamentary capacity but may not be “competent” to execute a new Will because of her diminished mental capacities and vulnerability to influence. Suppose the new Will benefits her housekeeper and excludes her child. Here, the rationale for the change needs to be scrutinized closely. The client’s impaired executive function (i.e., ability to apply information meaningfully, consider pros and cons and anticipate their consequences, and recognize the motivations of others) directly relates to her decision-making capacity. Executive dysfunction would prevent her from weighing new information against past experience, knowledge, and personal values, and conceiving of and choosing among various options. Her language deficit may prevent her from truly understanding the meaning of the new Will’s terms. Her memory deficit may prevent her from recalling how the proposed and a previous Wills differ. Her disorientation in time may prevent her from placing current and future needs in a rational temporal context, and from knowing when she executed her last Will, how much time has elapsed since then, and how the new Will affects her family in the future. Moreover, the client’s executive dysfunction renders her susceptible to influence. Because she cannot exercise critical judgment, and formulate reasonable doubt or skepticism, she is disposed to an uncritical credulity. This explains why she might follow the directions of her housekeeper, on whom she depends for her daily care, and make decisions that appear to be independent but which, in reality, reflect diminished reasoning ability and persuasion.

As the population ages, lawyers will increasingly need to detect intact versus impaired decision-making capacities. Lawyers can directly screen for decisional capacity (see Box below for an approach to assess testamentary capacity). In so doing, they rely on more than simple impressions of their clients, or on family members’ subjective, at times conflicted, views. Clients can mask their deficits and family members can misjudge the severity of those deficits, or be motivated by self-interest. Primary care physicians are often asked to determine competency, but they may not be trained to assess cognition, and their opinions may lack validity. This explains why physician competency evaluations often disagree. Unless a client’s decision-making capacities are specifically assessed, the presence or absence of those capacities cannot be presumed.

BOX: An Approach to Assess Testamentary Capacity

1) Awareness of the situation/communicating a choice

1. Can you tell me the purpose of today’s meeting?
2. What have you decided to do regarding your Will?

2) Factual understanding of the issues

1. Can you tell me what a Will is?
2. Do you know or can you approximate the extent of your estate?
3. Who in your family may survive you?
4. Can you tell me in your own words what you would like to happen to your estate after you die?

3) Appreciation of likely consequences

1. Do you believe that a Will is necessary? What do you believe would happen if you do not have a Will?
2. Can you tell me how your Will may affect your family?
3. How well does this Will represent your wishes?

4) Rational manipulation of information

1. How did you reach your decisions when you thought about your Will?
2. What was important to you in reaching your decision?
3. What are the advantages and disadvantages of your decision?
4. Were there other possibilities that you considered but decided against? What were your reasons? What makes Person A a better choice as your heir than Person B?