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
psychological professionals. Most attorneys lack
the training to know the limitations of the tests, such as validity and
reliability issues (for example, 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.
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
The MMSE does not assess the issue of undue influence or the degree of
susceptibility to such manipulation/coercion.