(I am happy to welcome my friend and colleague Eileen A.  Kohutis, Ph. D. to the Law Office of Donald D. Vanarelli Blog as a guest blogger. Eileen is a psychologist in private practice in Livingston and Liberty Corner, New Jersey.  Eileen and I met last year when we were both helping to form the Central Jersey Collaborative Law Group (CJCLG), an interdisciplinary alliance of legal, mental health and financial professionals who are working to introduce collaborative divorce practice to divorcing couples in New Jersey. Eileen and I are now active members in the CJCLG. I previously blogged about collaborative divorce practice here, here, here and here.  In her practice, Eileen counsels divorcing couples. Her special interests also include capacity assessments, custody evaluations, and personal injury examinations for people of all ages. In this guest post, Eileen has chosen to discuss capacity evaluations for her elderly and disabled clients. I learned something new by reading Eileen’s article, and I think you will find the post enlightening. Eileen’s office is located at  2 W. Northfield Road,  Suite 209, Livingston, NJ 07039.  She can be contacted by calling  (973) 716 – 1074. Thank you for participating, Eileen.)

Psychologists are often asked to perform capacity assessments for lawyers, the courts, physicians, or health care agencies.  This assessment provides the referring source with a comprehensive report of the patient’s strengths and weaknesses while supporting the individual’s rights.

The elderly are a diverse and complex group of the population.  They have had varied life experiences, have witnessed monumental historical and societal changes, and comprise a large cohort.  When we speak of teenagers, we think of people who are between 13 and 19 years of age.  But how old is an older person?  Is the person 62 years of age, 65, 80 or 95?  It is easy to imagine that a person who is 68 has certain capabilities that someone who is 84 does not, but age alone does not mean that the 68 year old is functioning better than the 84 year old.  Due to the complexity of issues and the diversity of the elderly, the American Bar Association’s Commission on Law and Aging and the American Psychological Association compiled the Assessment of Older Adults with Diminished Capacity:  A Handbook for Psychologists (2008) as a tool to help psychologists make informed capacity evaluations for the elderly.  Since, part of this effort was to advance this field. I will refer to aspects of the handbook to frame this discussion.

People who typically require capacity evaluations have a mental illness, cognitive changes due to aging, or a developmental disability.  Sometimes a concerned relative notices that a family member is having difficulty dealing with the demands of every day life and makes a legal petition to the court to begin guardianship proceedings.  Other times, the gradual decline of physical abilities may result in a hospitalization and, while there, the physicians and staff raise the question of the person’s ability to return home and live independently.  In still other situations, the person may run afoul of the law and a competency evaluation is ordered by the court.

Competence is a global term; capacity focuses on specific areas of functioning.  The capacity to drive a car may involve different cognitive processes than the capacity to live independently or the capacity to consent to medical care are some types of assessments that may be requested by the referring source.

Capacity assessments frequently arise in response to a crisis. A person may refuse medical treatment or a family member has become aware that the elderly person has been making unwise financial decisions.  The psychologist must obtain informed consent from the older adult in order to proceed with the evaluation.  If that person is unable or unwilling to do so, then that is documented and that may end the assessment.  However, the court may intervene and order an examination.

Typically, one of the first steps in a capacity evaluation is the clinical interview, which not only is an opportunity to meet the patient and to obtain some general background information, but to give an indication of the appropriate assessment tools.  For example, if the patient is unable to talk about current events, this could indicate impaired memory, depression, or limited intellectual ability.  A patient who is talks in circles when asked direct and straightforward questions may be suffering from dementia or a psychotic disorder.

In the past, capacity determinations were based on collateral information and interviews.  Psychologists are trained in test administration and interpretation and have developed standardized and objective assessment tools to measure various types of functioning.  When a test is standardized, it is administered and scored in a consistent way.  When a test is objective, it is not based on a person’s own beliefs.  Measures of cognitive ability meet these criteria and assess different areas of intellectual capability, such as language, memory, attention, visual perceptual ability, speed of processing, and judgment and reasoning.   If a person has difficulty using language to express thoughts or ideas, then the person may be suffering from dementia and may be unable to comprehend important contracts or documents.  A person who has difficulty with tasks measuring visual perceptual abilities may have difficulties driving a car or managing finances.

Personality measures focus on emotional and psychiatric disorders.   These tests assess anxiety disorders, depression, thought disorders, dementia, etc.  A person who has a bipolar disorder and is in a manic episode may report an increased interest in sexual activity, racing thoughts, and little desire to sleep.  These symptoms could affect his cognitive ability because he may have difficulty remembering and paying attention to information.  When adequately medicated, the patient is no longer distressed because these symptoms become manageable.

Information about daily living skills may be directly obtained from the person or may be obtained from family members or caretakers. These instruments assess situations needed to live independently, such as writing checks, using the telephone, and bathing.

In addition to this information, psychologists also consider values (individual beliefs that guide a person’s decisions), preferences (chosen option for a particular situation), and risk considerations (level of risk in a situation and environmental support).   For example, a person may refuse medical treatment and this may be based on ethnicity, religion, or previous life experience.  A person may be at risk and subject to personal harm if living alone without any support in an unsafe home. Values and preferences define a person’s approach to life while risk depends upon the circumstance.

When performing a capacity evaluation, psychologists will conduct collateral interviews to corroborate or refute the patient’s information.  Some of the interviews may be with family members or caretakers.  Additionally, medical files may also be reviewed  and will indicate if the person is suffering from any physical, neurological or psychiatric conditions that may affect functioning. Legal records also provide important information for the evaluator.

Finally, the psychologist’s capacity assessment needs to synthesize the data gathered from the various sources in conjunction with the information obtained from the different assessment measures.  The evaluation will support the individual’s rights and autonomy and provide information about the specific capacity being assessed.