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Assessing Clients for Diminished Capacity

If psychologists go into the field because they have psychological problems, then do lawyers go into the law because they have legal problems?

The first half of the question may be true -- Freud was a self-diagnosed neurotic -- but the second half of the question hardly makes sense. Lawyers as professionals are clearly distinct from the problems they typically handle for their clients.

However, there is a crossover in psychology and the law that can create problems for attorneys: assessing diminished capacity. Here are some tips about dealing with this problem area:

Juris Doctors

Attorneys are not counselors in the therapy sense, and they should not pretend to diagnose mental conditions unless they are also licensed therapists, psychologists, or psychiatrists.

Fortunately, the American Bar Association and the American Psychological Association published a handbook for lawyers to help them assess older adults with diminished capacity. The ABA has also posted interactive online education and videos to help lawyers, judges, and psychologists with capacity assessment.

"While psychologists and other health professionals may use different terms than lawyers, conceptually the clinical model of capacity has striking similarities to the legal model," the handbook says.

It warns attorneys not to make clinical assessments, but says they should be aware of "red flags" of impairment. Lawyers should watch for signs such as "memory loss, communication problems, lack of mental flexibility, calculation problems and disorientation."

Capacity Worksheet

The handbook includes a worksheet, but cautions against using it without first reading the handbook. The worksheet includes examples of client communication problems such as:

  • Difficulty finding words frequently
  • Vague language
  • Trouble staying on topic
  • Disorganized
  • Bizarre statements or reasoning

The worksheet also summarizes the legal elements of various types of capacity such as testamentary capacity, contractual capacity and donative capacity. It then summarizes with recommended actions, including whether to proceed with representation or refer to a mental health professional.

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