Tests of Cognitive Impairment

Although attorneys must often assess a client’s mental capacity, lawyers generally should not use the formal, clinical tests employed by medical and mental health professionals.   Most attorneys lack the training to know the limitations of the tests, such as validity and reliability issues (ex. many tests are not standardized for use in geriatric populations), or associated problem of the extent of false positive and false negative results.  Further, most tests do not provide results that are specific to the issues of legal incapacity; therefore reasonable questions may be raised as to whether the attorney had the requisite knowledge to make appropriate conclusions based upon test results.  Finally, the results of psychological tests must be compared to the person's behavior in order to confirm the validity of the findings.

For these reasons, lawyers are encouraged to use PARADISE-2 - a behavior-based protocol for assessing cognitive abilities that was designed to be used by attorneys in litigation settings (for more information, click here).   

With regard to the Mini-Mental State Examination or "Folstein" examination:  The Folstein (AKA "MMSE") should never be the sole method of assessing mental capacity.  According to its creator, the test was not designed to evaluate "executive functions" - i.e., those abilities involved in considering options and likely consequences, planning, initiating, monitoring, and appropriately stopping behavior.  In fact, Dr. Folstein and his group published an article in which they showed that slightly fewer than 40% of people - otherwise determined to be incompetent - scored well on the test.  The failure was due to this very issue. 

A low score must also be doubted, because several social, medical, and psychological conditions may produce an artificially low score.  If the test is used, the results should be compared to behavioral observations.

The MMSE does not assess the issue of undue influence or the degree of susceptibility to such manipulation/coercion.