All About Estates

Principles behind capacity assessment

The capacity to execute a Will, Power of Attorney (POA), manage Property or Personal Care or marry are cognitive tasks determined by an admixture of legal, statutory and clinical guidelines and factors. Hence, the need for a truly collaborative approach to their assessment and legal determination. In the case of testamentary capacity, the legal test is established by case law while the capacity to make POA’s and manage property and personal care are dictated by statutory law (Substitute Decisions Act). In legal disputes, clinical input (from treating physicians and medical experts) may help the court make the most informed decision by clarifying the nature and severity of co-existing clinical conditions such as dementia or delirium and the way in which those disorders impact the cognitive and mental functions behind each capacity.

The first broad principle behind capacity assessment is that two cognitive functions are behind every capacity, namely the understanding of relevant facts and the appreciation of the reasonably foreseeable consequences of a decision or course of action. This involves cognitive functions such as episodic memory and frontal-executive functions that subsume judgment and impulse control. Secondly, all capacities are task-specific and therefore the criteria to be assessed are different for each capacity. Moreover, capacities are also situation-specific and the circumstances of each individual’s milieu/environment must be taken into account. The notion that complexity and conflict in an individual’s milieu could alter the threshold for capacity is only just emerging and has not been fully tested in court.  These principles make it difficult to generalize about capacities and also challenge the notion that there is a hierarchy to different capacities. Each case is truly unique but guided by these principles. For example, capacity to marry has traditionally been considered the lowest capacity of all (perhaps for good reason) but the specific circumstances in a marriage may require a much higher level of understanding and appreciation – especially in a May-December union with significant impact on different families and property management.

In my next few blogs, I will highlight several clinical conditions and issues that are relevant to the cognitive functions underlying the concept of capacity.  I will begin with a review of the commonly used cognitive screening tests such as the Mini-Mental State Examination (MMSE) and others that are often quoted by lawyers and physicians as reflective of an individual’s capacity. Here the dictum: “A little knowledge is dangerous” applies. So stay tuned for the next clinical discussion where we will explore the specific cognitions behind these tests and the significance of the test scores vis a vis capacity assessment.

About Dr. Ken Shulman
Dr. Shulman graduated from the Faculty of Medicine, University of Toronto in 1973 and did postgraduate training in Psychiatry at the University of Toronto. He then went on to do specialty training in Geriatric Psychiatry in London, England. Since 1978, he has been based at Sunnybrook Health Sciences Centre, University of Toronto. He is the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Currently, he is the Chief of the Brain Sciences Program at Sunnybrook. Dr. Shulman has had a longstanding interest in the issue of testamentary capacity and vulnerability to undue influence and has been qualified as an expert witness in Estate matters in Ontario and Alberta. Together with colleagues he has published several papers in the area of testamentary capacity in international journals and is a frequent presenter at legal continuing education conferences on Estates and Trusts. Email: