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Shulman K, Herrmann N, Peglar H, Dochylo D, Burns C, Peisah C. The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity. CANADIAN JOURNAL OF PSYCHIATRY. REVUE CANADIENNE DE PSYCHIATRIE 2021; 66:255-261. [PMID: 32233933 PMCID: PMC7958202 DOI: 10.1177/0706743720915007] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.3] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 11/17/2022]
Abstract
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.
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Affiliation(s)
- Kenneth Shulman
- Department of Psychiatry, 71545Sunnybrook Health Sciences Centre, University of Toronto, Ontario, Canada
| | - Nathan Herrmann
- Department of Psychiatry, 71545Sunnybrook Health Sciences Centre, University of Toronto, Ontario, Canada
| | | | - Daniel Dochylo
- 33490Borden Ladner Gervais LLP, Toronto, Ontario, Canada
| | - Clare Burns
- 7971Weir Foulds LLP, Toronto, Ontario, Canada
| | - Carmelle Peisah
- 7800University New South Wales, Kensington, New South Wales, Australia.,Sydney University, New South Wales, Australia.,Capacity Australia, Kensington, New South Wales, Australia
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Zago S, Bolognini N. Neuropsychological autopsy of testamentary capacity: Methodology and issues in the elderly. APPLIED NEUROPSYCHOLOGY-ADULT 2020; 29:570-583. [PMID: 32687452 DOI: 10.1080/23279095.2020.1791869] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 10/23/2022]
Abstract
The forensic assessment of testamentary capacity is a topical issue given the prevalence of dementia illnesses and the increase in the complexity of modern financial and family structures. Although a contemporaneous assessment would be desirable, the majority of situations require a retrospective assessment of the mental state a deceased individual. Neuropsychologists, independently or as part of a board of consultants, are, therefore, frequently requested to give an expert opinion of the competence of cognitively impaired elderly testators.This paper offers a guide for carrying out a neuropsychological autopsy, namely the process of posthumous evaluation, for determining testamentary capacity. Taking into account the recent literature on the assessment of testamentary capacity, we propose a three-phase procedure for carrying out the neuropsychological autopsy in the forensic context. The neuropsychological autopsy of testamentary capacity is based on the meticulous, chronologically structured evaluation of any medical documents, available psychometric data, along with the critical examination of any source of information about the cognitive level of functioning of the deceased person at the time of the will.
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Affiliation(s)
- Stefano Zago
- U.O.C. di Neurologia, IRCCS Fondazione Ospedale Maggiore Policlinico, Università degli Studi di Milano, Milano, Italy
| | - Nadia Bolognini
- Dipartimento di Psicologia, Università degli Studi Milano-Bicocca di Milano, Milano, Italy.,Neuropsychological Laboratory, IRCCS Istituto Auxologico Italiano, Milano, Italy
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Shima C, Finkel S, Spitz D, Goldstein AI. The Geriatric Forensic Psychiatry Rotation at University of Chicago: Utilization and Educational Benefit of a Subspecialty Rotation in Psychiatric Residency Training. Front Psychol 2019; 10:2123. [PMID: 31632312 PMCID: PMC6783692 DOI: 10.3389/fpsyg.2019.02123] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 06/13/2019] [Accepted: 09/02/2019] [Indexed: 12/02/2022] Open
Abstract
Ten years ago, the University of Chicago Department of Psychiatry and Behavioral Neuroscience established a geriatric forensic psychiatry rotation for 4th-year psychiatry residents as one option in a required experience in forensic psychiatry. The rotation’s primary emphasis was to learn about cases of testamentary capacity and undue influence. The program was supervised by a senior faculty member, an experienced clinician who was board-certified in Geriatric Psychiatry.
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Affiliation(s)
- Carolyn Shima
- The University of Chicago, Chicago, IL, United States.,University of Chicago Medicine, Chicago, IL, United States
| | - Sanford Finkel
- The University of Chicago, Chicago, IL, United States.,University of Chicago Medicine, Chicago, IL, United States
| | - Deborah Spitz
- The University of Chicago, Chicago, IL, United States.,University of Chicago Medicine, Chicago, IL, United States
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Papageorgiou SG, Voskou P, Economou A, Beratis I, Douzenis A. Testamentary Capacity Assessment Tool (TCAT): A Brief Instrument for Patients with Dementia. J Alzheimers Dis 2018; 61:985-994. [DOI: 10.3233/jad-170297] [Citation(s) in RCA: 7] [Impact Index Per Article: 1.2] [Reference Citation Analysis] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Indexed: 11/15/2022]
Affiliation(s)
- Sokratis G. Papageorgiou
- Cognitive Disorders/Dementia Unit, 2nd Department of Neurology, National and Kapodistrian University of Athens, Athens, Greece
| | - Panagiota Voskou
- Cognitive Disorders/Dementia Unit, 2nd Department of Neurology, National and Kapodistrian University of Athens, Athens, Greece
| | - Alexandra Economou
- Department of Psychology, School of Philosophy, National and Kapodistrian University of Athens, Athens, Greece
| | - Ion Beratis
- Cognitive Disorders/Dementia Unit, 2nd Department of Neurology, National and Kapodistrian University of Athens, Athens, Greece
| | - Athanasios Douzenis
- 2nd Department of Psychiatry, National and Kapodistrian University of Athens, Athens, Greece
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Voskou P, Douzenis A, Economou A, Papageorgiou SG. Testamentary Capacity Assessment: Legal, Medical, and Neuropsychological Issues. J Geriatr Psychiatry Neurol 2018; 31:3-12. [PMID: 29251179 DOI: 10.1177/0891988717746508] [Citation(s) in RCA: 9] [Impact Index Per Article: 1.5] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Indexed: 11/17/2022]
Abstract
INTRODUCTION The increase in the aging population and the number of patients with dementia led to the research in older adults' capacity assessment over the last 3 decades. Many cases of contested wills occur due to lack of testamentary capacity (TC), especially in cases of dementia. AIM Purpose of the present study was to overview the legal, medical, and neuropsychological aspects of TC as well as the instruments used for TC assessment. FINDINGS The testator/testatrix with intact TC has realistic perception of his or her property value, lack of psychopathology affecting contact with reality, and intact intention of how and to whom he or she will dispose his or her assets. It is frequent for the health practitioners to serve as "gold standards assessors" by examining an individual's ability to make a valid will and giving evidence to the court to support or not a will contest. The TC assessment is a complex process of clinical and legal practice requiring usually a variety of methods, that is, interviews, evaluation of clinical records, and administration of neuropsychological instruments. CONCLUSION The evaluation of TC is a multidimensional process that integrates both the legal and medical field, requiring a collaborative approach to its definition and assessment.
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Affiliation(s)
- Panagiota Voskou
- 1 Cognitive Disorders/Dementia Unit, 2nd Department of Neurology, National and Kapodistrian University of Athens, Athens, Greece
| | - Athanasios Douzenis
- 2 2nd Department of Psychiatry, National and Kapodistrian University of Athens, Athens, Greece
| | - Alexandra Economou
- 3 Department of Psychology, School of Philosophy, National and Kapodistrian University of Athens, Athens, Greece
| | - Sokratis G Papageorgiou
- 1 Cognitive Disorders/Dementia Unit, 2nd Department of Neurology, National and Kapodistrian University of Athens, Athens, Greece
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Sinyor M, Schaffer A, Hull I, Peisah C, Shulman K. Last wills and testaments in a large sample of suicide notes: implications for testamentary capacity. Br J Psychiatry 2015; 206:72-6. [PMID: 25359928 DOI: 10.1192/bjp.bp.114.145722] [Citation(s) in RCA: 11] [Impact Index Per Article: 1.2] [Reference Citation Analysis] [Abstract] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Indexed: 11/23/2022]
Abstract
BACKGROUND The leaving of a will prior to death by suicide is a relatively unexplored area. AIMS To determine the frequency and details of will content in suicide notes. METHOD Coroner records for 1565 deaths by suicide in Toronto (2003-2009) were reviewed for (a) will content and (b) the presence of depression, psychotic illness, dementia and intoxication prior to death. RESULTS In total, 59 (20.7%) of 285 available suicide notes were found to have will content. Of those who left a will, 43 (72.9%) were reported to have a major mood or psychotic disorder, but none had dementia. Fifteen of 19 toxicology samples showed alcohol, sedative hypnotic/benzodiazepine, opioid and/or recreational drugs were present. CONCLUSIONS A substantial minority of suicide notes may also include testamentary intent. The observed high rate of mental illness and substance use around the time of death has important clinical implications for understanding the mindset of people who die by suicide and hence also legal implications regarding testamentary capacity.
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Affiliation(s)
- Mark Sinyor
- Mark Sinyor, MSc, MD, FRCPC, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ayal Schaffer, MD, FRCPC, Mood and Anxiety Disorders Program, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ian Hull, BA(Hons), LLB, Partner, Hull & Hull LLP, Toronto, Canada; Carmelle Peisah, MBBS (Hons), MD, FRANZCP, School of Psychiatry, University of NSW and Discipline of Psychiatry, University of Sydney, Sydney, Australia; Kenneth Shulman, MD, FRCPC, Brain Sciences Program, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada
| | - Ayal Schaffer
- Mark Sinyor, MSc, MD, FRCPC, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ayal Schaffer, MD, FRCPC, Mood and Anxiety Disorders Program, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ian Hull, BA(Hons), LLB, Partner, Hull & Hull LLP, Toronto, Canada; Carmelle Peisah, MBBS (Hons), MD, FRANZCP, School of Psychiatry, University of NSW and Discipline of Psychiatry, University of Sydney, Sydney, Australia; Kenneth Shulman, MD, FRCPC, Brain Sciences Program, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada
| | - Ian Hull
- Mark Sinyor, MSc, MD, FRCPC, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ayal Schaffer, MD, FRCPC, Mood and Anxiety Disorders Program, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ian Hull, BA(Hons), LLB, Partner, Hull & Hull LLP, Toronto, Canada; Carmelle Peisah, MBBS (Hons), MD, FRANZCP, School of Psychiatry, University of NSW and Discipline of Psychiatry, University of Sydney, Sydney, Australia; Kenneth Shulman, MD, FRCPC, Brain Sciences Program, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada
| | - Carmelle Peisah
- Mark Sinyor, MSc, MD, FRCPC, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ayal Schaffer, MD, FRCPC, Mood and Anxiety Disorders Program, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ian Hull, BA(Hons), LLB, Partner, Hull & Hull LLP, Toronto, Canada; Carmelle Peisah, MBBS (Hons), MD, FRANZCP, School of Psychiatry, University of NSW and Discipline of Psychiatry, University of Sydney, Sydney, Australia; Kenneth Shulman, MD, FRCPC, Brain Sciences Program, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada
| | - Kenneth Shulman
- Mark Sinyor, MSc, MD, FRCPC, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ayal Schaffer, MD, FRCPC, Mood and Anxiety Disorders Program, Department of Psychiatry, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada; Ian Hull, BA(Hons), LLB, Partner, Hull & Hull LLP, Toronto, Canada; Carmelle Peisah, MBBS (Hons), MD, FRANZCP, School of Psychiatry, University of NSW and Discipline of Psychiatry, University of Sydney, Sydney, Australia; Kenneth Shulman, MD, FRCPC, Brain Sciences Program, Sunnybrook Health Sciences Centre and Department of Psychiatry, University of Toronto, Canada
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