Review Article Testamentary Capacity Assessment: Legal, Medical, and Neuropsychological Issues Journal of Geriatric Psychiatry and Neurology 2018, Vol. 31(1) 3-12 ª The Author(s) 2017 Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/0891988717746508 journals.sagepub.com/home/jgp Panagiota Voskou, MD, MSc1, Athanasios Douzenis, MD, PhD2, Alexandra Economou, PhD3, and Sokratis G. Papageorgiou, MD, PhD1 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. Keywords testamentary capacity, dementia, assessment, personal autonomy, neuropsychological tests Introduction The research in older adults’ capacity assessment has emerged as a field of study and special interest over the last 3 decades. Some practitioners use the terms “capacity” and “competency” synonymously,1,2 whereas others consider these 2 terms as 2 related but distinct concepts: capacity as a clinical concept determined by a health professional and competency as a legal concept determined by a legal professional.2-4 Competency has been described as a situation which either exists or does not exist (threshold model), in contrast to the “decision-making capacity,” which is a situation with differences in gradation (gradual model).5 Competency refers to the ability of an individual to make decisions such as give consent to treatment, decide about legal issues, and make a will, as well as carry out activities of daily life, such as driving and managing financial issues.3,6 Three main areas are usually identified as important for the assessment of capacity2: (1) defining what the assessment of capacity is actually evaluating, (2) articulating the legal standards that are used for assessing capacity, and (3) specifying the focus on the mental systems which are required for the capacity assessment, namely, intellect, emotionality, and control. The different occasions for capacity evaluation are presented schematically by Sullivan as follows7: (1) assessment required by the individual who wishes to make provisions for future incapacity, (2) assessment initiated by others who suspect incapacity during the course of the person’s illness, and (3) retrospective assessment. Testamentary capacity (TC) is a form of legal transaction and refers to the ability of a person (testator/testatrix) to make his or her own will in a clear and valid way. Testamentary capacity constitutes a fundamental aspect of estate litigation.8 From a legal aspect, TC can be subject to variations in civic/ codal and common law countries. Civil law is a legal system used in most countries in the world, whose main principles are codified into a referable system that serves as the primary source of law. In contrast, in common law countries, that is, in England, Australia, and United States, the main principle is 1 Cognitive Disorders/Dementia Unit, 2nd Department of Neurology, National and Kapodistrian University of Athens, Athens, Greece 2 nd 2 Department of Psychiatry, National and Kapodistrian University of Athens, Athens, Greece 3 Department of Psychology, School of Philosophy, National and Kapodistrian University of Athens, Athens, Greece Received 6/10/2017. Received revised 11/14/2017. Accepted 11/15/2017. Corresponding Author: Sokratis G. Papageorgiou, 2nd Department of Neurology, National and Kapodistrian University of Athens, 1, Rimini street, 124 62, Athens, Greece. Email: sokpapa@med.uoa.gr 4 the judicial precedent or “stare decisis” in which cases should be decided according to consistent principled rules so that similar facts will yield similar results. According to civic law, as operates in Greece and most European Union countries, legal capacity regulates relationships between the individuals of a society, that is, contracts, wills, marriage, and so on9 and is described in the Art. 1710 of the Greek civic code. The civic code ensures that the testator can regulate his or her property relationships according to his or her own will after his or her death (Art. 1712).9 Probate Courts are frequently confronted with an increase in contested guardianships and wills as well as a high prevalence of elderly exploitation.10 The increase in both dementia and personal wealth is likely to lead to an increase in incidences of challenged wills after the testator’s death.8,11,12 A will may get changed any time before death and when a person makes or alters a will, this could be made on the basis of a false belief, not necessarily delusional, but these beliefs may render the testator vulnerable to undue influence.13 As individuals live longer, conditions affecting their physical and/or mental health may have an impact on their judgment and eventually interfere with their TC.14 The cognitive decline of the testator and undue influence are major conditions under which a will can be questioned.15 For example, families and descendants of persons with dementia have an increased risk of entering a legal conflict, depending on the size and complexity of the estate or the family context.4,8,13 The International Psychogeriatric Association has established a task force on TC and undue influence, with the aim to respond to the possible interference of mental disorders such as dementia and the large amount of wealth that is likely to be transferred over the next 25 years, resulting in legal conflicts over the TC of the testator.16 A study comparing the morbidity structure among testators whose wills were challenged and expert opinion on testamentary incapacity showed that much litigation and many expenses could be avoided if medical experts were given a chance to correctly assess the TC of a person at the time of will making.17 The aim of the present review is to describe the legal, medical, and neuropsychological aspects of TC, focusing on dementia, and present an overview of the current state of TC assessment. Methods A systematic search of MEDLINE/Pubmed (1980-2017) was undertaken. The search terms: wills, dementia, capacity, law, and instruments were combined with each of the following: testamentary, competency, and neuropsychological assessment. This yielded a total number of 146 relevant articles that were screened. Articles were considered for inclusion if they were available in Greek or English and full text. We excluded articles with a focus on other capacities, that is, consent to treatment, advance directives, and consent to research. We also included books relevant to legal capacity assessment of older participants. Thus, we included totally 69 articles and books in the present study. Journal of Geriatric Psychiatry and Neurology 31(1) Testamentary Capacity—Legal Aspects A will is a document that outlines how a person wishes his or her assets to be distributed after his or her death. The so-called testator or testatrix may wish or not to be assisted by a legal person during the composition of his or her will.9 It is assumed by the courts that a person has nonimpaired TC when he or she has “sufficient cognitive capacity to understand the concept of the will, knowledge of his/her assets, awareness of who might have claim on those assets and ability to communicate the disposition of his/her estate after his death.”18,19 Legally, when assessing the capacity of will making, what is basically evaluated is whether the testator understands what is required in order to compose a will and not whether the level of his or her functioning is at the highest possible level.14 Determination of TC around the world is defined according to specific legal criteria that are closely related to the Banks v Goodfellow criteria (1870) as follows: The person must be capable of understanding: the nature and effect of making a will; the extent of his/her estate and the value of it; the “natural objects of his/her bounty” who are legally entitled to the estate he/she is distributing; and d) how his/her assets are going to be distributed through his/her will. At the same time, the testator should not have a mental illness which influences him/her regarding the bequests in the will that he/she would not otherwise have included.11 (p. 155) Some differences between civic law and common law regarding forensic assessments can be highlighted.9,20 Unlike common law systems, civil law courts usually use codal provisions on a case-by-case basis, without reference to other judicial decisions. Regarding the common law, the anglo saxon literature places emphasis on personal freedom and firstly accepts that a “nonreasonable” will, in which for example the assets are not disposed according to the relationships of the testator while alive, is not necessarily invalid.21 Furthermore, in civic law countries, the expert is usually needed to be present in the court, apart from his or her written expertise. Moreover, a testamentary trust is created by a will and plays a significant role in most common law systems, whereas some civil law jurisdictions have incorporated trusts into their civil codes. Finally, as it is emphasized in the work of Champine, in most of the common law countries, according to family maintenance statutes and depending on the circumstances, court has the discretion to modify an otherwise valid will by setting aside a portion of the testator’s probate estate for the benefit of the testator’s family.22 By contrast, in civil law countries, a fixed share or amount for surviving family members of the testator is provided.22 This so-called “forced inheritance” is not unlimited in its application. It aims to protect the family but at the same time to maintain a balance with the principle of the testator’s free will and undeniable right to decide independently on the disposition of his or her property upon his death. Some points in the Greek Civil Code, which merit careful attention so as not to complicate the issue of TC, could include the cases of 5 Voskou et al testators with nationality different from the country they live in (Art. 7-9), substantial error in testator’s will (Art.140-141), offending of the good morals (Art. 178-179), handwritten wills with “material provisions” (Art. 1721; 1723), and forced inheritance (Art.1825-1826).23 Of course, these issues are described here indicatively and can only be addressed from legal professionals, preferentially with expertise in hereditary law. In Greece, the psychiatrist is usually the “expert” in forensic assessments regarding mental capacity and intention.9 Nonetheless, it is rare in Greece that has not a long forensic tradition, but common in United States, a psychiatrist to have an advisory role among the group of lawyers regarding “big” cases.24 Moreover, among the notaries in some states of United States, the focus is usually on the freedom of testators’ expression/ intention.9 In the Art. 131 of the Greek Civic Code, it is described that the declaration of a person’s intention is not valid if at it was made at the time when the person was not conscious of his or her actions or had a psychiatric or cognitive disorder which significantly affected the function of intention. This condition is also described in the Art. 1719 of civic code regarding the testamentary incapacity and is applied in cases of cognitive fluctuations of the testator. The formula of Banks v Goodfellow legal standards, which were primarily developed within the context of common law, is also used in the civic code jurisdictions.9 Undue Influence. The composition of a will has to be done with no pressure from the outside.14 This is particularly important in cases where a patient, at the time of his or her will making, is no longer capable of defining his or her intention clearly and reasonably. In such cases, a patient may not resist the influence or control of other people and freely decide on the distribution of his or her property.14,25 This “effect” is referred to by many studies as “undue influence”—a strictly legal term describing the impact of external factors influencing the patient. It is considered as one of the most attempted and successful challenges of the validity of the will17 and as a subcategory of “suspicious circumstances” under which the process of will making takes place.13,16,25 It is notified that undue influence should be distinguished from “due influence,” which is the usually notable natural favoritism or special devotion to particular heirs.26 The most difficult issue is to identify the testator’s susceptibility to undue influence since the testator’s dispositions to the influencer often seem to be expected.27 It is often emphasized how vulnerable the elders are during their decision-making process, that is, in the event of will changes for the inclusion or exclusion of a caregiver.28 For example, patients with dementia, during the course of the disease, may change their attitudes toward members of the family and carers. A patient may start to dislike previous loved ones or, on the contrary, show favor toward people previously disfavored and who in turn can exploit such a change. At the same time, this change is often reinforced by conflicts within the patient’s family. Thus, the potential testator maybe subjected to undue influence.27 Regarding the “deathbed will,” this often occurs in a hospital environment where many factors may have an impact on both the testator’s TC and vulnerability to undue influence. People who are dying may experience the existing physical and cognitive symptoms of dementia and aging in general, so their decision-making capacity is often impaired.29 When there is suspicion of undue influence, the threshold for TC becomes higher and there is increased need for more careful and detailed evaluation of the cognitive and perceptional ability of the patient during the time of will making. The Concept of TC Age and TC. Capacity is usually defined by 2 basic elements: the understanding of relevant facts and the appreciation of the specific circumstances and consequences of a particular action or decision.4 At least 3 mental systems are required for this function: (1) intellect, which refers to management of provided information, perception, memory, judgment, and orientation; (2) emotionality, which includes feelings and motivations; and (3) control or expression of behavior. These are functionally distinct but interact with each other.2 Normal aging is associated with decline in several cognitive functions, such as problem-solving, memory, language, and spatial abilities, which are also linked with lower levels of functionality in performing the daily living activities.30,31 Moreover, the prevalence of chronic diseases, such as cardiovascular disease, stroke, or cancer, and neurodegenerative disorders such as dementia and mental health conditions such as mood and depressive disorders is higher in the aging population,32 and these are associated with a more general functional decline. 33 Even for non-demented elderly individuals, decision-making in order to compose a will is a very complex mental function influenced by various cognitive and behavioral processes.34 The person asking the examination of an individual’s TC often attaches this request to the testator’s age.14 Normal aging may lead to executive function deficits25 and even very subtle age-related changes in cognition may have a serious impact on patient’s judgment35 and higher order functional capacities, such as consent capacity and financial capacity (FC).36 However, the evaluator of TC should be aware that while a testator/ testatrix may be incapable—due to advanced age—of some everyday activities such as driving or dressing, he or she may have preserved capacity to compose a valid will.25 Decision-Making Capacity: Not a Unitary Concept. According to the concept of “non-global capacity,” capacity “is not a unitary concept or construct and there is not simply ‘one’ capacity.”37 The individual has distinct and multiple competencies, such as the capacity to make a will, to consent to therapy, to manage financial affairs, and so on. Each of these includes a special combination of functions and skills, which distinguishes it from other types of competencies, whereas there is specificity regarding the context where each competency takes place, for 6 example, the process of consent to treatment usually takes place in a hospital.37 Capacity is task-specific as well as situation-specific,4,13 and this cardinal concept25 should be taken into account by any expert involved in the evaluation of TC, be it a health professional or a legal specialist.18 Also, impairment of cognitive functions is not by itself enough for the person to be considered incompetent in all the domains of functioning.4,13 The law recognizes that capacity is not an all-or-nothing phenomenon.38 Task-specificity has the meaning that the incapacity to do one thing does not necessarily imply incapacity to do another. In this way, thresholds between types of incompetency may vary.28 The situation-specific nature of TC has not been well studied.4 It refers, basically, to the level of complexity of the testator’s property and the number of potential beneficiaries.25 There are studies describing legal standards for the incorporation of situation-specific factors into the assessment of capacity, with thresholds increasing as the situation becomes more complicated. Although these legal standards were developed primarily in relation to the issue of consent to treatment, the principles that underlie them are potentially applicable to other complex capacities, such as TC.13 Similarly, the functional approach of capacity is focused on the decision (issue)- and time-specific nature of legal capacity,39,40 and therefore, practitioners should not make “blanket,” assessments of individuals’ capacity.41 The functional model can be helpful in cases of fluctuating capacity, that is, dementia and in questionable cases of mental diseases. It can also be adopted by the courts in legal cases in which the court examines the decision to be made at the time it had to me made as well as whether the person understands the information relevant to the decision, the available choices, and the impact of making or not the specific decision.41 It is also pinpointed that TC is distinct from financial capacity, which includes a wide range of abilities and managing of daily finances.42-44 Nonetheless, occasionally, potential beneficiaries may doubt the patients’ TC due to loss of FC.42,45 Dementia and TC. Clinicians often have the experience of the moderately to severely demented patients who, despite clear neuropsychological evidence of impairment, is somehow able to make decisions about the disposal of his or her property.46 Patients with dementia may be capable of answering questions about their preferences, personal involvement in life decisions, and sociodemographics with consistency.1,47,48 Several cognitive domains have been proposed to be related to the ability to make a will: memory (including free recall and recognition), orientation, expressive and receptive language, and executive functions.18,30,49 Testamentary capacity is described as an advanced activity of daily living (a complex capacity), requiring intact frontal/executive functions, in contrast to other daily living capacities that are more simple, like the household activities, such as preparing a meal or dressing.4 Cognitive functions such as memory and orientation, as well as executive functions, such as abstract thinking, impulsiveness, Journal of Geriatric Psychiatry and Neurology 31(1) and social judgment, have to be examined in detail and documented by the expert.4 Testamentary capacity is often based on complex decision-making and higher levels of cognition.29 Executive dysfunction is an early feature of vascular and frontotemporal dementia and often of Alzheimer’s disease (AD).50 The TC assessment becomes even more complicated in patients with dementia including behavioral or psychological symptoms of apathy, agitation, impulsiveness, disinhibition, aggression, hallucination, and delusions.51 Furthermore, in dementia, the impairment of executive functions may have a serious impact on insight, impulsivity, perceptual abnormalities and judgment of the patients.13 It is therefore important for the health practitioner involved in the evaluation to define and document any of these symptoms. Even mild types of memory dysfunction may be related to a feeling of suspiciousness or even paranoid ideation as patients try to compensate for their memory deficits.13 The social relationships of patients with dementia are also often impaired due to their inability to appraise relationships in the context of the past. At the same time, the patients may present with impulsive judgment of other persons or situations.50 In the case of a deficit in autobiographical memory, the patient may be incapable of recalling facts and feeling that derive from the past and are related to his or her environment.50 In cases of personality changes, such as apathy and passivity, patients may be easily influenced by others’ opinions.50 It can be rather difficult to define whether dementia or personality factors are “responsible” for excluding from one’s will persons who are normally expected to be a person’s heirs.11 In dementia, there can also be a differential impairment of recall memory while the patient’s personality, values, and substantial long-term memory remain intact, as does implicit memory for recent events.52 Consequently, the characterization of a person as incapable of making decisions for his or her life (negative positioning) because of episodic memory deficits can be misleading, since the patient’s other cognitive abilities and intention may remain intact.52 When the person has a severe cognitive decline, legal professionals may not need the assistance of an expert in the assessment of TC. The problem arises in cases where there is increased need for subtle interpretations of brain function, as in individuals with mild or moderate cognitive impairment.13 In addition, dementias, such as the Alzheimer’s type, usually result in fluctuating levels of capacity through the early and mid-stages of the disease.38 Courts decide sometimes that a will has been made during a temporary period of a “lucid interval,” of the testator and this finding may validate a will which would otherwise may be denied probate. Nonetheless, in dementia, cognitive fluctuations are very short in duration and minor, with no effect on executive functions which are required for TC. Thus, a previously incapable patient cannot be temporarily able to execute a will and the application of the lucid interval may be invalid in testators with dementia.53,54 Furthermore, general practitioners may proceed to the evaluation of a patient’s TC without taking advice from the solicitors regarding the legal tests.11 In this case, an individual may be judged as Voskou et al incompetent just by having scored low on a screening cognitive test, while the individual may be fully aware of the heirs to whom he or she is bequeathing his or her property.11 The health professional is often called to evaluate the TC, both retrospectively and prospectively, when the family and/or the friendly environment of the testator contest the will.12 In retrospective cases, in which the experts’ opinion is asked after the testator’s death, the clinician’s decision may be strengthened by an overview of the patient’s medical record, including any cognitive tests’ results, psychiatric history, financial documents, social history, and testators’ writings. The assessor often relies on testator’s letters, e-mails, or other records, as well as evidence from third parties.39 The evidence which demonstrates the evolution of dementia, after the composition of the last will may strengthen the argument for any impaired functions of the patient, that is, impairment in thinking, perception, or judgment during the will making.13 The examiner must declare at the beginning of his or her expertise that he or she had not assessed the testator in person.9 In prospective cases, in which contemporaneous evidence of TC is required, the current assessment of both the legal criteria for TC and the cognitive dysfunction of patients, that is, by using cognitive tests and clinical interview of both testators and their relatives, may help the expert in his or her decision.12,13 Although retrospective assessment is more common, contemporaneous assessment is preferable since it provides evaluation of a living testator at the time of or near to the execution of his or her will and, thus, it may protect the testator’s wishes.39 The increase of complexity in TC evaluations also supports the contemporaneous assessment.39 Clinical Assessment of TC General Principles. The law and the court are the final “judges” for the determination of a person’s TC and challenges to wills occur on a legal basis. However, it is frequent for the health care practitioner, usually the forensic examiner, be it a psychiatrist, a neurologist, or a psychologist, to be asked as an “expert” about a person’s ability to make a valid will and to give evidence for or against a challenge to a will.55 Thus, TC becomes a function crossing both the legal and medical fields requiring a collaborative approach for its assessment, while experts can help the court to decide.37,56,57 A legal professional could assess the testator in person and determine whether the individual should be evaluated by a health practitioner together with the suitable legal guidance and the clear definition of the health professional’s role. The need for collaborative approach is important given the fact that medical practitioners often lack training regarding the knowledge of legal tests, which are needed to be applied, while legal professionals are not usually trained to detect neurodegenerative diseases and their impact on TC of their clients. There is also need for communication between legal and medical professionals when involved in capacity assessments with further education and sharing of information and concerns 7 between them.39 It is preferable for the clinicians to develop their assessment models for addressing legal issues by taking into account input from legal professionals.39 Whether the medical professional involved in TC assessment is the treating physician of the testator should be also taken into consideration in the evaluation of the assessor’s expertise.22,39 The treating physician may detect any changes in the cognitive, emotional, or behavioral characteristics of the testator, but it is not absolute whether the court will take his or her evaluation into account.39 The qualifications of assessors involved in decision-making process have been described: they should be neutral, friendly, respectful, and self-aware, come from a wide range of professions, trained in determining capacity, have communication skills in order to communicate with the other professions, and have knowledge about mental health and emotional distress.41,57 The intention of the individual, that is to whom and how he or she wants to dispose his or her property and to explain his or her choices and wishes in a rational way, is perhaps the most important component of the validity of the will and at the same time the most difficult parameter to measure in an objective way. Even in non-demented elderly participants, the evaluation of their intention in relation to their TC constitutes a complex procedure, which requires the expert to take into consideration many cognitive, functional, and emotional processes.42,58 Furthermore, in the case of dementia, performing the assessment in the security and comfort of the testator’s own home rather than in a medical practitioner’s office may allow the testator to achieve his or her full potential capacity by reducing anxiety and agitation.25 The forensic examiner should also address issues such as evidence of a neurologic or mental disorder, which may affect cognition, judgment, impulse control, and the emotional/psychological milieu in which the testator lives, with specific reference to conflicts or tensions within the family. It is not always easy to identify those patients who are incapable because in earlier stages of dementia patients may appear relatively normal on conversation and maintain their social graces.54 Specific attention to frontal and executive functions of the testator should be given.54 The examiner should also document the complexity of situation-specific factors or provide evidence of a pathological or dependent relationship with a formal or informal caregiver.13 The examiner should then ensure that the Banks v Goodfellow criteria are satisfied.25,29 Additionally, due to the complexity of modern families, a more complex and careful appraisal of the claims of the beneficiaries is required.50 Another major role of the expert during the TC assessment process is to identify persons who are vulnerable to undue influence and screen for any potential abuse of the elderly examinee, which could predispose to undue influence.25 The National Center on Elder Abuse reports that 1 in 10 elders may experience some type of abuse, but only 1 in 5 cases of abuse are actually reported.10 A model developed in the area of competence assessment is the “2-stage model of capacity assessment.” This describes the 8 Journal of Geriatric Psychiatry and Neurology 31(1) evaluation of 2 components, namely, the fundamental cognitive abilities (memory, reasoning, judgment, expression, and understanding) and the knowledge/capacity specific to competency of decision-making. It is accepted that the second cannot exist without the presence of the first ones.7 In general, the ideal assessment of TC in patients with cognitive impairment should include a general psychiatric evaluation, a clinical interview with observation of patient’s behavior, a set of neuropsychological tests, an evaluation of the patient’s functional abilities, and the consideration of the current legal framework.6,18 A detailed medical, psychiatric, and family history should be taken during the clinical assessment. The clinical interview is the foundation of a contemporaneous evaluation of the testator while he or she is still alive. Cognitive Testing and TC. Cognitive tests and tools are diagnostic of dementia only under the expertise evaluation of the health professional. Standardized evaluation instruments can be valuable and helpful to the expert, providing evidence for his or her judgment and offering tools to the court for a more consistent approach to TC judgment.22,51 Standardized evaluation tools can provide a clear starring point for a discussion on competence in many settings, because the link between neurocognitive function and capacity is not a one-way communication.43 The clinician often needs to utilize a variety of standardized measures and approaches to ensure adequate coverage of the skills necessary for a competent person to function in day-today life and in legal situations.42 Assessment methods used to determine capacity include formal tests, direct observations, behavioral checklists, and semi-structured interviews.7 In contrast to the few existing studies on specialized methods for the TC of patients with dementia,6,19,25 there are numerous instruments assessing the cognitive functions of patients with dementia and their decision-making capacity, focusing mainly on the ability for therapeutic choices (informed consent to treatment), everyday life decisions, managing with financial affairs, and consent to research participation.6,50,59 These are sometimes administered in combination in order to assess TC and can be categorized as follows: 1. Instruments for the evaluation of cognitive functions. The easily applicable Clock-Drawing Test examines many different cognitive functions, including the executive ones.25 Also, the cognitive functions of patients with AD have been evaluated for TC by comparing the Mini-Mental State Examination (MMSE) with the Revised Cambridge Examination for Mental Disorders of the Elderly (CAMDEX-R).12 It was shown that MMSE, CAMDEX-R, and the language function (as measured by the 2 tools) were equally accurate predictors of TC in patients with AD. On the contrary, the impaired short-term memory and the poor ability to concentrate were not found to be accurate predictors of TC. Furthermore, the handwriting of the person was found to constitute a supplemental method to the ones that are already used for TC evaluation in dementia.60 Cognitive instruments can be useful for the detection of subtle deficits and the possible changes over time. Nonetheless, the TC of patients is a complex capacity and cannot be solely related only on their performance in such tests that are inconsistent with the issue-specific nature of the functional approach on capacity. These can only provide data regarding the persons’ cognitive functions that are involved in their ability to make a will. 2. Instruments for the evaluation of decision-making capacity (everyday life problems, treatment choices, informed consent, managing finances). Some FC models have been used for the assessment of the patients’ perception about the value of their property. These are the Hopemont Capacity Assessment Interview (HCAI)61; the FC Instrument (FCI)43; the Measure of Awareness of Financial Skills45; and the Hopkins Competency Assessment Tool.62 Although useful, the assessment instruments for decisionmaking capacity are not relevant to or specialized for evaluating TC. Moreover, the administration of a set of instruments requires a longtime and can be both rather exhausting for the patient and impractical for the health-care practitioner who often needs a brief screening tool before referring to the forensic expert. Furthermore, there is a limited number of studies focusing on instruments specialized for the assessment of TC in dementia. One specialized TC assessment tool that has been proposed is the TC Instrument (TCI), which is a structured, psychometric measure for assessing and differentiating the TC of cognitively intact from cognitively impaired older adults.37 Testamentary Capacity Instrument assesses capacity according to the 4 legal components of TC, namely, understanding the purpose and consequence of a will, understanding the nature and extent of assets, knowledge of natural and other heirs, and plan for distribution of assets by will. The TCI, according to its authors, should ideally be coadministered with cognitive and emotional evaluation and, also, seeks collateral information for all of them. To the best of our knowledge, empirical data are lacking concerning the effectiveness of the aforementioned instrument. The FCI and the HCAI mentioned above are 2 of the Forensic Assessment Instruments (FAIs), which are psychological assessment instruments designed to provide a specific answer to legal and clinical questions regarding civil competencies, considering TC as 1 specific domain of the broader FC.30,63 Another recently developed FAI is the Portuguese Instrumento de Avaliação da Capacidade Financeira which includes 3 modules: screening, general financial, and estate disposition.64 The development of FAIs highlights the need to consider a functional rather than a diagnostic approach in TC assessment, with both general functional evaluation and cognitive testing taken into consideration. 30 The functional assessment usually includes activities of daily living and instrumental activities of daily living, that is, managing finances, whereas capacity evaluations of older adults often require functional assessment directed to relevant legal standards (for a review of functional assessment scales and instruments, see30,40,63,65). 9 Voskou et al Despite the recommendations and need for the development of a single standardized and specialized instrument for the assessment of TC, such a widely accepted instrument has not yet been developed.7,13,25,51,55 Standardized evaluation tools can be valuable and helpful to the expert, providing evidence for his or her assessment, guidelines to the court for a more consistent approach to TC judgment,22 and a clear starting point for a discussion on competence,66 although neuropsychological instruments can never override the expert’s opinion.5 Without a specific standard to determine which test should be used, there may be variation and a lack of standardization in the way assessments are conducted.7 Although there is an increasing call for the development of a “lifetime” evaluation tool, based on legal criteria,22,37 there are significant methodological difficulties when assessing TC in a standardized way, due to the fact that this capacity should be always evaluated at the time of the will composition and is strongly situationspecific. In addition to the identification of the clearly capable and the clearly incapable, an assessment to determine the capacity of those people with borderline capacity is needed.42 In the field of neuropsychological instruments, the challenge for the researchers is to balance between sensitivity/specificity and duration/difficulty of every test, so that the ideal battery of tests can have excellent sensitivity and relatively short duration.1 Testamentary Capacity and Psychiatric Issues The testator’s mental state is one of the main conditions that can invalidate a will.14 Legally, the testator must not have any disorder of mind which would “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.”11 Conditions affecting the mental status of the testator may have a serious impact on his or her cognition or perception and, therefore, on his or her ability to understand relevant facts related to TC. In addition, they may impair the testator’s appreciation of consequences of specific actions or his or her interpretation of situation-specific factors.13 For example, patients with cognitive decline, in their try to compensate for their memory deficits, may develop feelings of suspiciousness or even paranoid delusions13 or they may have delusions, which directly impact upon the decision on the distribution of their estate.39 For example, patients with dementia may mistakenly believe that their spouses have been unfaithful to them.14 Psychiatric aspects of TC often involve subtle influences on cognitive factors, such as perception, impulsivity, and judgment, which can determine significantly the testator’s appreciation of the consequences of the will and may need careful appreciation.8 The expert clinician can help the lawyer or the Courts by confirming the presence of these psychiatric conditions.13 However, the existence of a mental illness, such as schizophrenia or bipolar disorder does not mean that the patient is incapable of making a valid will.11,37 Conversely, even if an individual with psychiatric illness can meet the legal elements for TC, namely, understanding the nature of a will, knowing the nature and extent of the property, knowing the objects of one’s bounty and expression of a basic plan regarding the property’s distribution, the will can still fail if the psychiatric illness is specific to the testamentary disposition, that is, existence of delusions which lead the testator to exclude his or her own child from his or her assets.40 Delusions which could render a will invalid usually include the testators’ heirs in a negative way.14 Psychiatric disorders which are associated with dementia and may influence TC include delirium, delusions, mood disorders, and alcohol addiction or misuse. These disorders are mentioned here for the sake of providing a comprehensive overview, but undoubtedly merit detailed analysis that is not within the scope of this article. Conclusion The forensic domain of TC constitutes an interesting and increasingly important intersection of law, mental health, and aging.37 It needs a collaborative approach to its definition and assessment, providing the future experts with guidelines and assisting the court to make its judgment. The involvement of the health-care practitioner in TC assessment is highlighted due to the increase in mental disorders, including dementia and psychiatric diseases, and the complexity of modern TC evaluations. The determination of the “expert” in TC evaluations is still questionable whether it refers to health-care (general practitioner, psychiatrist, neurologist, neuropsychologist) or legal professionals and its determination usually depends on the cost and the specific conditions under which the will making takes place.39,51 The “situation-specific” feature of TC refers mainly to the complexity of the testator’s situation and it is well documented in the literature that there is generally need to consider all facts and circumstances during the assessment and determination of TC.13 The presence of dementia or a psychiatric disorder should not lead automatically to the conclusion that the patient lacks TC. Screening instruments may be useful in identifying persons in need of more intensive evaluations,1 although clinical interview remains the core element of TC assessments. Including the perspective of persons with cognitive impairment in both research and practice has the potential to enhance their autonomy and improve their quality of life.48 Capacity assessment should aim to facilitate the participation of older people in complex processes, such as the composition of a will as well as to identify those who are incompetent. The understanding of the neuropsychological background of a possible dysfunction in the decision-making ability is very important since it can give validity to the assessment instruments and give the opportunity to organize targeted interventions for the reinforcement of the decision-making capacity of persons with probable cognitive impairment.1 Instruments cannot replace the judgment of a forensic expert, and a single instrument or score can never take into account all the aspects of the variety of medical, legal, ethical, and other factors that inform a competency decision.67 Nonetheless, they can provide an approximation of legal capacity.5 10 Final judgment of competency should take into account a potential overemphasis on cognition and an evaluation of the risks and benefits of the specific situation.5 Finally, it is for the court to decide on issues of legal capacity.68 More studies relevant to the methods used for the evaluation of TC in patients with dementia—mainly mild to moderate— need to be developed, aiming at the assessment of essential functional abilities for specific capacities, since there is no diagnosis of “incompetence” in general terms and capacity is not a unitary concept.67 The need to identify over time discrete cognitive functions that inform the clinician of the legal and functional elements of TC is also highlighted.67 At the same time, crucial issues to be solved are: which practitioner is considered capable to take over such evaluations, the way in which these evaluations should be performed, and the level of impairment constituting a person incapable of making a will.63 We underline the need to perform studies regarding the application of forensic evaluation tools in the field of age-related cognitive impairment and performance. 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