Elder Law Estate Planning Legal Topics

When to Get a Neuropsychologist on the Case

149463035When there are issues involving your client’s capacity or the existence of undue influence, you may want to get a neuropsychologist on the case to perform assessments and/or act as an expert witness.

Neuropsychologists may aid your case in the following ways:

  • Help to determine whether there’s a correlation between any mental function deficits and the person’s capacity to do the act or make the decision in question and, if the matter is being litigated, testifying on this issue in court.
  • Gather additional data for you and for use as evidence if there’s a court proceeding.
  • Advise you about the witnesses, documents, and other evidence that may be most helpful in presenting your case.
  • Help you understand your client’s circumstances and mental and emotional capabilities.
  • Expose masking statements, i.e., the retention of social skills after short-term memory and the ability to retain new information has faded.
  • Gather specific information on your client’s ability to function in his or her natural environment that may not be possible for you to ascertain in just an office visit, and recommending to the court the least restrictive environment when a conservatorship is necessary.
  • Help you reconstruct the probable mental function deficits at the time of the incident at issue, e.g., when a decedent changed his or her estate plan.

The neuropsychologist’s evaluation can be most helpful in determining whether there’s a correlation between a mental function deficit and the act or decision in question.

The neuropsychologist’s personal evaluation of an individual or expert opinion based on a hypothetical arising from the facts of a case may be quite persuasive for the attorney trying to ascertain whether the person can execute a document in the office setting or the court when capacity or undue influence is the subject of litigation.

Always have a clearly defined purpose before referring a client to or retaining the services of a neuropsychologist. Referral isn’t appropriate or necessary in every case, and don’t assume that a neuropsychological assessment is always required. For example, a neuropsychologist’s opinion isn’t determinative of the legal issues of capacity and undue influence, which must be made either by an attorney in the office or a trier of fact applying the standards and tests of relevant statutes in the courtroom setting. Further, a neuropsychologist’s conclusions aren’t binding on the court, and the terms and concepts used by the neuropsychologist aren’t necessarily the same as the legal standards and requirements in the statutes.

A very helpful resource on assessing capacity, which includes examples of actual statements made by clients who were found to have significant cognitive losses beyond normal age changes, is CEB’s Capacity and Undue Influence: Assessing, Challenging, and Defending. And litigating capacity and undue influence claims is just one of the many topics covered in CEB’s popular program Advanced Elder Law with Terry Magady, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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