Financial and testamentary capacity evaluations are done when there is concern that individual could be incapable of managing their finances or making a valid will in the context of serious psychiatric illness or neurodegenerative condition, such as dementia. Questions around financial and testamentary capacity are often raised in wills and estate litigation.
Assessment of financial capacity involves determination of ability to understand and appreciate the consequences of financial decisions. Assessment of testamentary capacity includes evaluation of ability to appreciate the extent and value of owned property, who the natural beneficiaries are, how the disposition is made, and how these components relate to a plan of distribution of property. Such evaluation can be completed directly with the individual who is making the will and retrospectively, after the individual’s death. Legal capacity evaluation may also involve ability to instruct counsel in legal proceedings, and make contracts and important purchases. The higher the stakes of the capacity evaluation, the higher assessment standards must apply.
CORTEX experts employ state-of-the-art toolbox for these high stakes’ evaluations (e.g., Cohen, Schultz, Sepehry & Stewart, 2018). They include standardized neuropsychological tests that measure the underlying cognitive domains, such as numerical ability or executive functions, together with well-validated specialized instruments for decision-making capacity regarding finances or will, combined with the collateral, observational and diverse functional data. Factors such as undue pressures on the decision-making individual are carefully considered, together with the clinical trajectory of their illness or disability. Language and cultural factors involved are also given due consideration.
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