FACT 1: For some years disputes over wills and estates are the most frequent type of litigation in the Superior Court of New South Wales. Litigants commonly question the cognitive capacity of the will maker aiming to change situations or split wealth differently. This is knowledge common to wills and estate planning lawyers, a speciality within the legal profession in Australia and internationally.

FACT 2: Dementia is the most common threat to loss of legal capacity among the elderly, although other conditions giving rise to brain injury such as a stroke may also impact upon capacity. However, a diagnosis of dementia is not evidence that a person lacks capacity.

Fact 2 is knowledge common to neuropsychologists. The discipline of older adult neuropsychology is uniquely placed to assess cognitive capacity in the elderly. A neuropsychologist combines knowledge of neurodegenerative disease with the skills to make cognitive and functional assessments together with strategies to maximise functioning and decision making.

At Autonomy First we bring together legal and neuropsychology expertise to provide reports to resolve situations without court action and to aid clients to make important decisions affecting their lives and wellbeing, family, businesses and financial interests.

Consider these two dementia case studies and ask who is in the position to best assist Martin and Edward.

Decisions to be made affecting Martin and Cecilia

Martin is a 74-year-old former solicitor: He is diagnosed with a form of dementia involving progressive loss of language. Martin wishes to revoke the enduring power of attorney in which he previously appointed his ex-wife. He is referred for assessment of his capacity to make this decision, as despite his severe language problems his son notes that other decision making skills are being maintained.

Cecilia is an 89-year-old with a substantial property protfolio: She is the other of four, where only two children hold concerns about her capacity to continue to manage her finances. Cecilia does not have a diagnosis of dementia. She and two of her children have no awareness of any cognitive difficulties. However, the Guardianship Tribunal has placed an order for Cecilia to undergo a neuropsychological assessment in relation to her financial management capacity.

The cases of Martin and Cecilia illustrate issues of capacity within the context of family differences of views or even conflict about the elderly person’s level of dependence and required support.

As evident in Ceclia’s case the source of disagreements often stems from a genuine lack of understanding by one or more family members. In that situation assessment by a neuropsychologist can provide objective evidence of an individual’s capabilities and any areas of difficulty where family members have different views.

In addition to the situations of Martin and Ceclia, a determination on a client’s capacity is recommended in many types of situations. These can involve decisions to be made about a will, and many other decisions affecting the life, wealth, welfare, and wellbeing of a person, his or her family, a family business, or other financial or business assets or interests.

What’s involved in obtaining a cognitive capacity report?

How could Martin and Cecilia benefit from an Autonomy First report? Consider these characteristics of a capacity report from Autonomy First.

  1. Involves an explanation by experienced professionals of the nature, scope and purpose of the assessment, requirement to protect the client’s confidentiality, dissemination of information and distribution of the report.
  2. Requires clarity on who is the client. Although part of each assessment is likely to involve seeking additional information from referers, family members or supporters, the interview and assessment with the client is conducted without other interested parties present. This is in order to minimise any undue influence or interference.
  3. Balances the client’s autonomy with protection of the client from harm and exploitation.
  4. Distinguishes impaired decision making from poor decision making. The question is not whether any client decision made or to be made is one that is sound, but whether the fundamental processes that enabled or will enable the decision to be made are intact.
  5. Recognises that capacity is decision and time-specific, and cannot be inferred from one decision or one point in time to another. Each decision requires a fresh assessment, based on the complexity of the decision and the context in which it is being made. There is a need then for a tailored approach for each case to assessing capacity and the selection of assessment tools to be applied.
  6. Autonomy assessment reports provide detail sufficient for their admissibility in legal settings.

Outcomes and benefits of Autonomy First reports

The Capacity & Capability Clinic is a multidisciplinary professional practice at MQ Health providing a medico-legal capacity and capability assessment service. This supports the autonomy of individuals faced with complex health, welfare, legal or financial decisions. Clients may contact the Clinic direct or be referred by their practitioner. We receive referrals from professionals in health and allied health sectors, estate planning lawyers, financial planners, accountants and other disciplines.

Client outcomes from the Clinic currently comprise:

  • Resolving requirements for informed consent to a range of decisions including:

o Medical treatment proposals
o Aged care entry
o Homecare requirements and service provider evaluation
o Establishing personal representation for pre and post-death requirements
o Evaluating and resolving complex decisions and family conflict
o Evaluating objectives for wealth conservation, administration and succession
o Centrelink enquiry actions and assistance applications

  • Supporting NDIS application and plan reviews.
  • Supporting Centrelink DSP applications and reviews.
  • Supporting hospital referred clinical requirements.

In Autonomy First reports the relevance of any test findings to the particular capacity being assessed are explained clearly. If a dispute or litigation arises then the legal profession and courts are reliant on the opinions of neuropsychologists and lawyers, as respectively experts in the assessment of human cognitive abilities and legal decisions.