Capacity in the Life Course of the Elder

Author(s):  
Yaser Haq ◽  
Stuart A. Anfang ◽  
Benjamin Liptzin

Over the next few decades, there will likely be an increase in the frequency of will challenges related to testamentary capacity and undue influence, given a U.S. elderly population with a disproportionate amount of wealth. Psychiatric clinicians are likely to be called upon to advise the courts about a person’s capacity to make a will or susceptibility to undue influence. This chapter reviews the important legal and psychiatric issues involved in determinations of testamentary capacity and undue influence. It also touches on the policy considerations of promoting liberty and autonomy which set a low threshold for testamentary capacity while allowing for the doctrine of undue influence as a mechanism to protect those who are vulnerable. The complex interplay between cognition, a potentially conflictual milieu, and the extent of the assets at stake is also discussed. This chapter also provides guidance with respect to some of the challenges faced by clinicians conducting a contemporaneous versus retrospective assessment. Finally, mechanisms to avoid estate litigation, such as power of attorney and estate planning, are also discussed.

Author(s):  
Sherif Soliman ◽  
Phillip J. Resnick

As the population ages, expertise in addressing forensic psychiatric issues that arise in the geriatric population is becoming increasingly important. These include the need for guardianship, contractual capacity, testamentary capacity (capacity to make a will), and undue influence. Legal decision-makers frequently rely on psychiatric expertise. The geriatric-forensic psychiatric report is a key part of communication between the medical and legal professions. Often the report is the doctor’s only opportunity to communicate his or her opinion, since the vast majority of cases do not go to trial. This chapter focuses on planning, writing, and editing forensic psychiatric reports regarding geriatric issues. Basic principles of writing for a legal audience are discussed and how these principles apply to forensic psychiatric reports involving the elderly. The chapter offers recommendations for each stage of the writing process and discusses common pitfalls in writing forensic reports.


2015 ◽  
Vol 39 (5) ◽  
pp. 528 ◽  
Author(s):  
Vanette E. J. McLennan ◽  
Jennifer H. M. Boddy ◽  
Michelle G. Daly ◽  
Lesley M. Chenoweth

Objective This paper reports on the experiences and perspectives of community members in relation to advance healthcare directives and enduring power of attorney, including the factors that encourage or discourage engagement in advance care planning (ACP). Methods A qualitative methodology was used involving 26 in-depth telephone interviews with community members (mean age 66 years). The aims of the interview question were to gain an understanding of: (1) motivations for engaging in ACP; (2) barriers that prevent people from engaging in ACP; and (3) suggestions for promoting ACP. Results The findings suggest that: (1) community members lack knowledge about ACP; (2) forms appear inaccessible and complex; (3) community members avoid ACP due to fear, mistrust and concerns over control; and (4) there are misperceptions regarding the relevance of ACP based on age and health. Conclusions There is unnecessary fear, avoidance and mistrust around ACP activities, largely resulting from misinformation. There is an undoubted need for greater education and support to be offered to individuals and their families regarding ACP, its benefits and its limitations. What is known about the topic? There is a lack of awareness about ACP in Australia, which is compounded by issues in the accessibility of ACP information, forms and support in completing the often complex documentation. Further, studies have indicated health practitioners tend to avoid assisting patients with ACP decision making and formalisation of their wishes for health care should they lose testamentary capacity. What does this paper add? This paper contributes further understanding of the experiences and perceptions of people, particularly older Australians, in relation to ACP, including the motivating and discouraging factors for people in the uptake of advance healthcare directives and enduring power of attorney. People felt discomfort and mistrust about ACP, and lacked understanding of its relevance regardless of age or health status. Those who had engaged in ACP, prompted by family members or experiences in, or witnessing, ill health, felt a sense of security in having formalised their wishes. What are the implications for practitioners? It is now clear that people require improved provision of information and support around ACP-related activities. This support may best be offered by practitioners such as nurses and social workers who are knowledgeable regarding ACP and skilled in counselling. Without discussion of death and dying, and the role of ACP, people will continue to feel a mistrust and avoidance towards formalising their healthcare wishes in advance.


2020 ◽  
pp. 070674372091500
Author(s):  
Kenneth Shulman ◽  
Nathan Herrmann ◽  
Hayley Peglar ◽  
Daniel Dochylo ◽  
Clare Burns ◽  
...  

Objectives: Physicians and other mental health experts are increasingly called on to assist the courts with the determination of testamentary capacity. We aim to improve the understanding of the retrospective assessment of testamentary capacity for medical experts in order to provide more useful reports for the court’s determinations and to provide a methodology for the retrospective assessment of testamentary capacity. Method: Medical experts with experience in the retrospective assessment of testamentary capacity collaborated with lawyers who practice estate litigation. The medical literature on the assessment of testamentary capacity was reviewed and integrated. The medical experts provided a clinical perspective, while the lawyers ensured that the case law and legal perspective were integrated into this review. Results: The focus and limitations of the medical expert are outlined including the need to be objective, nonpartisan, and fair. For the benefit of the court, the medical expert should describe the nature and severity of relevant medical, psychiatric, and cognitive disorders, and how they may impact on the specific criteria for testamentary capacity as defined by the leading case of Banks v Goodfellow. Medical experts should opine only on the issue of vulnerability to influence and defer to the court to determine the facts of the case regarding any influence that may have been exerted. Conclusions: Although the ultimate determination of testamentary capacity is a legal one, medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the criteria for testamentary capacity.


2018 ◽  
Vol 18 (1) ◽  
pp. 50-76 ◽  
Author(s):  
Richard Tuffin ◽  
Martin Gibbs ◽  
David Roberts ◽  
Hamish Maxwell-Stewart ◽  
David Roe ◽  
...  

This paper presents an interdisciplinary project that uses archaeological and historical sources to explore the formation of a penal landscape in the Australian colonial context. The project focuses on the convict-period legacy of the Tasman Peninsula (Tasmania, Australia), in particular the former penal station of Port Arthur (1830–1877). The research utilises three exceptional data series to examine the impact of convict labour on landscape and the convict body: the archaeological record of the Tasman Peninsula, the life course data of the convicts and the administrative record generated by decades of convict labour management. Through these, the research seeks to demonstrate how changing ideologies affected the processes and outcomes of convict labour and its products, as well as how the landscapes we see today were formed and developed in response to a complex interplay of multi-scalar penological and economic influences. Areas of inquiry: Australian convict archaeology and history. The archaeology and history of Australian convict labour management. The archaeology and history of the Tasman Peninsula.


2004 ◽  
Vol 20 (1) ◽  
pp. 63-69 ◽  
Author(s):  
Kenneth I. Shulman ◽  
Carole A. Cohen ◽  
Ian Hull

2010 ◽  
Vol 22 (6) ◽  
pp. 950-956 ◽  
Author(s):  
Benjamin Liptzin ◽  
Carmelle Peisah ◽  
Kenneth Shulman ◽  
Sanford Finkel

ABSTRACTBackground: With the aging of the population there will be a substantial transfer of wealth in the next 25 years. The presence of delirium can complicate the evaluation of an older person's testamentary capacity and susceptibility to undue influence but has not been well examined in the existing literature.Methods: A subcommittee of the IPA Task Force on Testamentary Capacity and Undue Influence undertook to review how to assess prospectively and retrospectively testamentary capacity and susceptibility to undue influence in patients with delirium.Results: The subcommittee identified questions that should be asked in cases where someone changes their will or estate plan towards the end of their life in the presence of delirium. These questions include: was there consistency in the patient's wishes over time? Were these wishes expressed during a “lucid interval” when the person was less confused? Were the patient's wishes clearly expressed in response to open-ended questions? Is there clear documentation of the patient's mental status at the time of the discussion?Conclusions: This review with some case examples provides guidance on how to consider the question of testamentary capacity or susceptibility to undue influence in someone undergoing an episode of delirium.


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