As the population ages, more families are becoming concerned that an elderly loved one’s abilities to remember things or make sound decisions about their person or their estate is declining. All our mental abilities will change as we age, and most of the time, families can manage these changes very successfully. It is increasingly common that concerns about safety become great enough, or the financial stakes are high enough that attorneys practicing in elder law become involved. Because legal issues surrounding mental competence will grow as baby boomers age, the legal field is turning more routinely to forensic neuropsychology to formally evaluate mental competency – and provide clarity in these otherwise confusing situations.
This article is written for attorneys looking to understand when a neuropsychology evaluation of competence to manage one’s person or estate would be useful.
Specific topics include:
- Standard clinical neuropsychological evaluations vs. forensic neuropsychological evaluations
- Neuropsychological Testing vs. asking their doctor to complete a Report Of Physician
- Usefulness of a consultant forensic neuropsychologist to help prepare the attorney.
Table of Contents:
- Standard Clinical vs. Neuropsychological Evaluations
- Neuropsychological Testing vs. Report of Physician
- Benefits of Having a Consultant Forensic Neuropsychologist
- Common Head Injury Terms
- Importance of Behavioral MRI
Clinical vs. Forensic Neuropsychological Evaluations
Attorneys practicing in the area of elder law know better than most that medical records are often so confusing that they shed little light on mental competency as defined in the Illinois Probate Act.
This is not surprising because physicians and standard clinical neuropsychological evaluations solely focus on diagnosis and treatment. Conversely, forensic neuropsychologists are trained to leverage the reliability and validity of neuropsychological tests to directly address factors such as:
- Competence to make financial decisions
- Competence to make medical decisions
- Mental capacity to marry
- Susceptibility to undue influence
- Competence to appoint a Power of Attorney
- Need for a Guardian to be appointed
Neuropsychological tests provide an objective, evidence-based, and peer validated approach to assisting the Court in making these determinations through assessing an individual’s actual abilities, not merely stating opinions.
Report of Physicians vs. Neuropsychological Testing
Attorneys often find themselves puzzled by a brief letter that was written by a physician regarding their patient’s ability to make important decisions. Other times, physicians complete a more formal Report of Physician. These kinds of documents rarely include much information about how the physician has formed their opinion, and it is very common for two clinicians’ records to completely contradict one another.
Additionally, because the majority of physicians are not trained in formal methods of assessing competence, they may avoid addressing these matters, or may not know what factors to include in their assessment. As a result, attorneys are commonly at a loss as to whether any of the medical evidence they have actually addresses the legal questions at hand.
Unlike some areas of medicine, there is no simple blood test or brain scan that can determine when someone’s thinking abilities have changed enough to render them incapacitated. However, a forensic neuropsychologist’s training is specifically designed to allow them to assess an individual’s cognitive abilities (i.e., memory, decision making, math skills, etc.) in order to shed light on specific legal questions.
That pattern of objectively measured abilities – when integrated with other medical data and caregiver interviews – can go beyond simply stating an opinion. Neuropsychological evaluations can provide valid, reliable and defensible information to support their conclusions.
Neuropsychological testing is uniquely suited to demonstrate, to a reasonable degree of certainty, whether there is a cognitive deficiency, and describe the degree to which this deficiency impacts mental competency.
Should I Retain a Consultant Forensic Neuropsychologist?
The simple fact is that even the most well-written neuropsychological evaluations are complex. Trying to understand what a poorly-written existing report means in the context of other (often conflicting) medical reports is challenging. There are also issues of a neuropsychologist misinterpreting their own data, not recognizing the impact of cultural variables on test performance, or simply not demonstrating good clinical judgment.
Because few of these issues will be immediately apparent to most attorneys, it may be a sound investment to have a consultant forensic neuropsychologist to assist with understanding the report’s strengths, weaknesses, and to be included in the strategy development process from the beginning.
Where do I go from here?
The decision to retain an expert either as a consultant or as an evaluator is not simple. If you have questions and would like to discuss the benefits and downsides of utilizing a Chicago forensic neuropsychologist, please give Dr. Brietzke a call to discuss.