Evaluation for Guardianship (Best Practices for Forensic Mental Health Assessment)

EVALUATION FOR GUARDIANSHIP

BEST PRACTICES IN FORENSIC MENTAL HEALTH ASSESSMENT Series Editors Thomas Grisso, Alan M. Goldstein, and Kirk Heilbrun

Series Advisory Board Paul Appelbaum, Richard Bonnie, and John Monahan

Titles in the Series Foundations of Forensic Mental Health Assessment, Kirk Heilbrun, Thomas Grisso, and Alan M. Goldstein Criminal Titles Evaluation of Competence to Stand Trial, Patricia A. Zapf and Ronald Roesch Evaluation of Criminal Responsibility, Ira K. Packer Evaluating Capacity to Waive Miranda Rights, Alan M. Goldstein and Naomi E. Goldstein Evaluation of Sexually Violent Predators, Philip H. Witt and Mary Alice Conroy Evaluation for Risk of Violence in Adults, Kirk Heilbrun Jury Selection, Margaret Bull Kovera and Brian L. Cutler Evaluation for Capital Sentencing, Mark D. Cunningham Evaluating Eyewitness Identification, Brian L. Cutler and Margaret Bull Kovera Civil Titles Evaluation of Capacity to Consent to Treatment and Research, Scott Y. H. Kim Evaluation for Guardianship, Eric Y. Drogin and Curtis L. Barrett Evaluation for Personal Injury Claims, Andrew W. Kane and Joel Dvoskin Evaluation for Civil Commitment, Debra Pinals and Douglas Mossman Evaluation for Harassment and Discrimination Claims, William Foote and Jane Goodman-Delahunty Evaluation of Workplace Disability, Lisa D. Piechowski Juvenile and Family Titles Evaluation for Child Custody, Geri S.W. Fuhrmann Evaluation of Juveniles’ Competence to Stand Trial, Ivan Kruh and Thomas Grisso Evaluation for Risk of Violence in Juveniles, Robert Hoge and D.A. Andrews Evaluation for Child Protection, Karen S. Budd, Jennifer Clark, Mary Connell, and Kathryn Kuehnle Evaluation for Disposition and Transfer of Juvenile Offenders, Randall T. Salekin

EVALUATION FOR GUARDIANSHIP ERIC Y. DROGIN CURTIS L. BARRETT

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2010

1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam

Copyright  2010 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Drogin, Eric York. Evaluation for guardianship / Eric Y. Drogin, Curtis L. Barrett. p. cm. — (Best practices in forensic mental health assessment) Includes bibliographical references and index. ISBN 978-0-19-532360-3 1. Conservatorships—United States. 2. Older people—Mental health—United States. I. Barrett, Curtis L. II. Title. KF481.5.D76 2009 346.73010 8—dc22 2010000170

9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper

About Best Practices in Forensic Mental Health Assessment The recent growth of the fields of forensic psychology and forensic psychiatry has created a need for this book series describing best practices in forensic mental health assessment (FMHA). Currently, forensic evaluations are conducted by mental health professionals for a variety of criminal, civil, and juvenile legal questions. The research foundation supporting these assessments has become broader and deeper in recent decades. Consensus has become clearer on the recognition of essential requirements for ethical and professional conduct. In the larger context of the current emphasis on ‘‘empirically supported’’ assessment and intervention in psychiatry and psychology, the specialization of FMHA has advanced sufficiently to justify a series devoted to best practices. Although this series focuses mainly on evaluations conducted by psychologists and psychiatrists, the fundamentals and principles offered also apply to evaluations conducted by clinical social workers, psychiatric nurses, and other mental health professionals. This series describes ‘‘best practice’’ as empirically supported (when the relevant research is available), legally relevant, and consistent with applicable ethical and professional standards. Authors of the books in this series identify the approaches that seem best, while incorporating what is practical and acknowledging that best practice represents a goal to which the forensic clinician should aspire, rather than a standard that can always be met. The American Academy of Forensic Psychology assisted the editors in enlisting the consultation of board-certified forensic psychologists specialized in each topic area. Board-certified forensic psychiatrists were also consultants on many of the volumes. Their comments on the manuscripts helped to ensure that the methods described in these volumes represent a generally accepted view of best practice. The series’ authors were selected for their specific expertise in a particular area. At the broadest level, however, certain general principles apply to all types of forensic evaluations. Rather than repeat those fundamental principles in every volume, the series offers them in the first volume, Foundations of Forensic Mental Health Assessment. Reading the first book, followed by a specific topical book, will provide the reader both the general principles that the specific topic shares with all forensic evaluations and those that are particular to the specific assessment question. The specific topics of the 19 books were selected by the series editors as the most important and oft-considered areas of forensic assessment conducted by mental health professionals and behavioral scientists. Each of the 19 topical books is organized according to a common template. The authors address the applicable legal context, forensic mental health concepts, and empirical foundations and limits in v

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About Best Practices in Forensic Mental Health Assessment

the ‘‘Foundation’’ part of the book. They then describe preparation for the evaluation, data collection, data interpretation, and report writing and testimony in the ‘‘Application’’ part of the book. This creates a fairly uniform approach to considering these areas across different topics. All authors in this series have attempted to be as concise as possible in addressing best practice in their area. In addition, topical volumes feature elements to make them user-friendly in actual practice. These elements include boxes that highlight especially important information, relevant case law, best-practice guidelines, and cautions against common pitfalls. A glossary of key terms is also provided in each volume. We hope the series will be useful for different groups of individuals. Practicing forensic clinicians will find succinct, current information relevant to their practice. Those who are in training to specialize in forensic mental health assessment (whether in formal training or in the process of respecialization) should find helpful the combination of broadly applicable considerations presented in the first volume together with the more specific aspects of other volumes in the series. Those who teach and supervise trainees can offer these volumes as a guide for practices to which the trainee can aspire. Researchers and scholars interested in FMHA best practice may find researchable ideas, particularly on topics that have received insufficient research attention to date. Judges and attorneys with questions about FMHA best practice will find these books relevant and concise. Clinical and forensic administrators who run agencies, court clinics, and hospitals in which litigants are assessed may also use some of the books in this series to establish expectancies for evaluations performed by professionals in their agencies. We also anticipate that the 19 specific books in this series will serve as reference works that help courts and attorneys evaluate the quality of forensic mental health professionals’ evaluations. A word of caution is in order, however. These volumes focus on best practice, not what is minimally acceptable legally or ethically. Courts involved in malpractice litigation, or ethics committees or licensure boards considering complaints, should not expect that materials describing best practice easily or necessarily translate into the minimally acceptable professional conduct that is typically at issue in such proceedings. This book considers those legal, ethical, and assessment issues that arise when forensic mental health professionals are asked to evaluate the capacity of adults to make independent decisions about the management of their personal and financial affairs. With the aging of our population, the competence of those who are elderly and mentally infirmed may be challenged more and more frequently. Drogin and Barrett consider those factors that forensic evaluators should consider when assessing such capacities as the ability to execute a will, get married, vote, maintain a driver’s license, conduct financial transactions, make medical decisions for themselves, and live independently. This

About Best Practices in Forensic Mental Health Assessment vii

book reviews appropriate methodology that experts should consider when asked to conduct these assessments, including the use of forensic assessment instruments designed to specifically address some of these areas of psycholegal concern. The authors review research in this area of forensic practice and, consistent with other books in the ‘‘Best Practices’’ series, their book should contribute to the standard of practice when forensic mental experts assess the need for substituted judgment. Alan M. Goldstein Kirk Heilbrun Thomas Grisso

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Acknowledgments We thank Alan M. Goldstein, Thomas Grisso, and Kirk Heilbrun for the opportunity to contribute to this impressive series and for their generous guidance and support. We thank Stephen Anderer for his transformative editorial review and Mary Connell for her invaluable feedback on an earlier version of the manuscript. We dedicate this book to the thousands of guardianship respondents whom we have been privileged to evaluate during the past few decades.

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Contents FOUNDATION Chapter 1

The Legal Context

3

Chapter 2

Forensic Mental Health Concepts

Chapter 3

Empirical Foundations and Limits 43

31

APPLICATION Chapter 4

Preparation for the Evaluation

Chapter 5

Data Collection 75

Chapter 6

Interpretation

Chapter 7

Report Writing and Testimony

References

51

101 111

123

Tests and Specialized Tools Cases and Statutes

139

145

Key Terms 147 Index

149

About the Authors 157

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FOUNDATION

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The Legal Context

1

Introduction Guardianship is a legal process providing a substituted decision maker for persons who cannot manage their own personal or financial affairs. In this book, we focus on guardianship for adults, who are legally presumed competent unless proven otherwise. This is distinct from considerations in guardianship for children, who may have guardians appointed for them simply because of prolonged or even permanent absence of their natural parents or other prior caretakers. When we refer globally to “guardianship,” we are addressing this notion in the prevailing modern context that addresses personal and financial needs simultaneously, although we recognize that some statutes still provide for assigning a guardian to manage the former and a conservator to manage the latter.

Historical Background Guardianship may be “the most inclusive method of substitute decision-making for persons who have been adjudicated incompetent,” and it “establishes the parameters for other more limited types of civil incompetency determinations, such as the rights to refuse treatment and to vote” (Parry & Drogin, 2007, p. 89). Appelbaum and Gutheil (2007) observed that Modern law recognizes a broader potential scope of concern for a guardian—the well-being of the individual herself. This form of guardianship over the person, which might co-exist with, or exist independently of, control over the property, grants broad powers 3

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of decision-making over the personal affairs of the ward, such as living situation, choice of medical treatments, and changes in personal status. (p. 186)

Guardianship “is probably the most ancient aspect of mental health law” (Melton, Petrila, Poythress, & Slobogin, 2007, p. 370). The first legal recognition of “the need for surrogates to handle the property and commercial affairs of disabled citizens” was instituted during the period of the Roman Empire (Appelbaum, 1982, p. 183). According to Fleming and Robinson (1993): The early English guardianship law for incompetents distinguished between “lunatics” and “idiots.” The former consisted of the mentally ill, who might recover from their disability and thereby regain control over their property. . . . “Idiots,” on the other hand, consisted primarily of the mentally retarded, who were presumably incurable and would never be capable of performing their civil duties. Their property was subject to seizure by the overlord . . . the assets were his to use as he wished. (pp. 17–18)

By the time of the 16th century, many of the modern trappings of guardianship were already established in English law, including court-appointed caretakers for persons with disabilities (Neugebauer, 1989). It would not be long before modern shortcomings began to be recognized as well. In 1637, “the first guardianship petition in the New World was decided under English law” (Drogin & Barrett, 2003, p. 306), with the unfortunate result that the disabled examinee’s revenues “were to be used almost entirely for purposes other than his upkeep,” “no guardian accounted for his stewardship,” and “surplus profits were not preserved for any heirs” (Neugebauer, 1987, p. 481). After a gradual series of reforms—particularly in the latter half of the 20th century—commentators were able to confirm by the early 1980s that “all 50 states and the District of Columbia provide for some form of guardianship and/or conservatorship” (Hafemeister & Sales, 1982, p. 255). In 1997, the National Conference of Commissioners on Uniform State Laws adopted

The Legal Context 5

the revised Uniform Guardianship and Protective Proceedings Act (Morgan, 2007, p. 1), which was designed “to provide a model code to enhance due process protections for incapacitated persons” and has currently been adopted by a handful of jurisdictions (Moye, Armesto, & Karel, 2005, p. 208). Across the country, state legislatures continue to reform their approach to guardianship evaluations, and this appears to be achieving measurable improvements in court practice (Moye, Wood, Edelstein, et al., 2007); furthermore, case law at the state level continues to develop rules for addressing technical issues such as the appropriate transfer of guardianship from one jurisdiction to another (Bolton & Pinals, 2006).

Basic Legal Procedure In Guardianship Cases Petition If a person is alleged to be disabled and consequently incapable of managing her own personal or financial affairs, there needs to be a formal mechanism for bringing this to the court’s attention. Some states actually provide forms that an interested party—the petitioner—can download or obtain directly from the court. In other jurisdictions where no state-sanctioned form is available, the relevant guardianship statute may still prescribe a series of specific components that must be contained in the petition, such as the petitioner’s name and address, the allegedly disabled person’s name and address, the relationship (if any) between the petitioner and the allegedly disabled person, the nature of the alleged disability, the specific way in which the alleged disability affects the management of personal or financial affairs, and the names and addresses of any persons who could provide additional relevant information.

Hearing If the local civil trial court—which is perhaps a specially designated “probate court”—is convinced by the petition that there is “probable cause”—essentially, a “reasonable basis”—to believe that the allegedly disabled person may need a guardian, then it

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assigns the case to a prosecutor and may also appoint a defense The standard for guardianship is attorney if the allegedly disabled “clear and convincing evidence,” person—often called the responalthough this standard is dent—is not in a position to inconsistently defined. arrange for private counsel. State statutes typically designate the amount of time that a courtappointed evaluator (or evaluation team) has to examine the respondent, in anticipation of a hearing date. This hearing date generally can be postponed at least once if there are extenuating circumstances such as a particularly complex evaluation, acute illness on the part of the respondent, or simple scheduling conflicts.

INFO

INFO The American Bar Association Commission on Law and Aging, the American Psychological Association, and the National College of Probate Judges (2006) recommended the following deliberative steps for judges to follow when they “analyze evidence in relation to elements of state law”: 1.

The Medical Condition. What is the medical cause of the individual’s alleged incapacities and will it improve, stay the same, or get worse?

2.

Cognitive Functioning. In what areas is the individual’s decision-making and thinking impaired and to what extent?

3.

Everyday Functioning. What can the individual do and not do in terms of everyday activities? Does the individual have the insight and willingness to use assistance or adaptations in problem areas?

4.

Consistency of Choices With Values, Patterns, and Preferences. Are the person’s choices consistent with long-held patterns or values and preferences?

5.

Risk of Harm and Level of Supervision Needed. What is the level of supervision needed? How severe is the risk of harm to the individual?

6.

Means to Enhance Functioning. What treatments might enhance the individual’s functioning? (pp. 11–12)

The Legal Context 7

The hearing is conducted with both sides giving evidence before a judge and—in some states—a jury. The standard by which the case for guardianship must be made is clear and convincing evidence. There has yet to emerge a consistent definition for this standard. It is, however, a higher standard than the preponderance of the evidence— anything more than 50%—used in other civil matters, and a lower standard than beyond a reasonable doubt as used in criminal matters.

Adjudication Bound by the specific standards provided by statutes and case law, the judge—or jury—will determine any need for guardianship on the basis of evidence presented during the hearing as well as whatever additional materials (such as expert reports) may be admitted for supplemental review. As described subsequently, in some jurisdictions, there is an additional determination of whether a “full” or “partial” guardian is more appropriate. In some jurisdictions, the guardianship may also be designated as “temporary” when instituted “to provide substituted consent for health care decisions” in the case of a “life-threatening situation” (Parry & Drogin, 2007, p. 139). As with any other legal proceeding, there is an opportunity for appeal if one side or the other concludes that the trial court has committed a significant error.

Guardianship Monitoring Long before the issue of guardianship monitoring gained public attention through such highly publicized scandals as the management of the Brooke Astor estate (Kovaleski, 2007), Hurme, Parry, and Coleman (1991) voiced their awareness of a problem in this regard and noted that “although the consensus among guardianship experts is that courts should monitor guardianship cases, only scattered attention has been given to how courts are implementing this monitoring function” (p. 71). Parry and Hurme (1991) stressed the importance of action by individual courts in improving the monitoring process, and research by Moye, Wood, Edelstein, Wood, et al. (2007) demonstrated how the courts, in turn, are positively influenced by statutory reforms.

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Overview of Guardianship Monitoring Practices Karp and Wood (2006) conducted a broad overview of nationwide guardianship monitoring practices and reached the following, rather mixed conclusions: 1. Guardianship monitoring practices continue to show wide variation; 2. Reporting practices have advanced over the past 15 years in some key aspects; 3. Use of technology in monitoring is minimal; greater use of computer technology could effectuate a paradigm shift in monitoring practices; 4. Guardian training has increased but remains a compelling need; 5. Verification of guardian reports and accounts, as well as visits to individuals under guardianship, is frequently lacking; 6. The role of volunteers in monitoring is minimal, yet offers potential; 7. Court-community action on monitoring is infrequent, yet could enhance oversight; and 8. Funding for guardianship monitoring remains minimal. (pp. 32–35)

Steps to Enhance Guardianship Monitoring The American Bar Association Commission on Law and Aging, the American Psychological Association, and the National College of Probate Judges (2006) endorsed a series of “ten steps to enhance guardianship monitoring” adapted from Hurme et al. (1991), which we have annotated to provide additional background information: A REQUIREMENT FOR THE GUARDIAN TO REPORT ON THE INDIVIDUAL’S STATUS It does little good for the disabled examinee to receive a guardian who ultimately fails to provide necessary services and supervision.

The Legal Context 9

The requirement of a status report serves a dual purpose. On the one hand, it prevents a guardian from falling into the trap of viewing all disabilities as static and unchanging and thus encourages adjustments in care to address changes in certain medical and psychological conditions. On the other hand, it underscores the court’s ongoing responsibilities toward the disabled examinee and provides a basis for corrective action when the guardian fails to keep pace with personal changes in status. A REQUIREMENT FOR A WRITTEN GUARDIANSHIP PLAN This helps to avoid subsequent arguments about the specific nature of the services to be provided for the disabled examinee. Ideally, this should be written in language that is much more practical and illuminating for laypersons than a mere copy of the applicable guardianship statute. The best written guardianship plan is one that addresses such components as disabilities, capabilities, care options, and timelines. The written guardianship plan that reminds the guardian of his responsibilities and catalogs the court’s various reporting and filing deadlines is the one most likely to be revisited by the various parties, to the benefit of all concerned. COURT ACTIONS TO FACILITATE THE GUARDIAN’S REPORTING AND ACCOUNTING The court will not be content to wait some 6 or 12 months before learning whether its original hunch about the guardian’s ability to serve as a supervisor and caregiver was accurate. The safety of the disabled examinee has been the court’s primary concern since the inception of the guardianship proceedings. Interceding at the first sign of missed reporting and accounting deadlines sends the message that the court is serious and paves the way for replacement of the inappropriate guardian. COURT ENFORCEMENT OF REQUIRED STATUTORY REPORTING REQUIREMENTS Simple expressions of disapproval or pointed invitations to resign are not sufficient measures when a guardian has failed to meet agreed-upon reporting requirements. An accurate and ongoing cycle of data submission, review, and instruction are critical to

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ensure an appropriate, evolving level of care for the disabled examinee. Courts need to possess the recognized authority to enforce reporting requirements, the will to step in, and the resources to follow through. This state of readiness is ensured by the availability of appropriately trained staff and by the legislative drafting of coherent, unambiguous statutory provisions. PROCEDURES FOR REVIEW OF REPORTS AND ACCOUNTINGS When guardians file their reports and accountings with the court, these documents cannot be allowed to pile up in a back room until the judge or her clerk has time to review them. Some submissions will require prompt action and, in the most extreme instances, will reflect a life-or-death situation for the disabled examinee whose guardian is overwhelmed and perhaps even desperate. Requiring documentation and then failing to process it—or failing to respond when a response is clearly warranted—engenders resentment in some guardians who feel their time is being wasted and may discourage some from investing sufficient effort to provide services on an ongoing basis. PROCEDURES FOR INVESTIGATION OF COMPLAINTS When disabled examinees and other interested parties express concerns about the actions—or inaction—of a guardian, the court needs to have a system already in place to respond. The mere scheduling of an evidentiary hearing is insufficient. The court must have at its disposal trained investigators with a solid grounding in state-specific guardianship requirements and who understand how to interview disabled examinees, guardians, family members, care providers, and other persons with relevant information. The court will benefit from establishing a ready context for processing this input and developing an optimal threshold for requiring changes to the current guardianship scheme. PERIODIC HEARINGS ON THE NEED TO CONTINUE THE GUARDIANSHIP This device provides clear recognition that the disabled examinee is a person with evolving capabilities and varying needs over the

The Legal Context 11

course of time. A central tenet of guardianship jurisprudence—and, indeed, the full spectrum of legal proceedings addressing competency—is that no one should be subjected to compulsory supervision and care who is able to sustain a viable independent lifestyle. Periodic hearings on the need to continue guardianship place appropriate time limits on an expensive and time-consuming duty for courts and guardians alike and additionally inspire guardians to reacquaint themselves with the particulars of the disabled examinee’s condition at regular intervals. SUFFICIENT REVENUE FOR MONITORING None of the functions just described can be undertaken without proper funding. Guardianship courts require dedicated space for hearings, specially designed access for persons with age-related and other disabilities, and training for judges, lawyers, and guardians. In addition to salaries for court employees, there must be fees for courtappointed counsel, expert witnesses, and investigators. An important but often overlooked aspect of successful monitoring is the provision of literature—in addition to reproductions of relevant statutes—that assists various parties and the public at large to understand guardianship and the ways in which the court’s duties extend beyond the determination of incapacity and the initial assignment of a guardian. CLEAR ETHICAL GUIDELINES FOR ATTORNEYS REPRESENTING THE PETITIONER, GUARDIAN, AND INDIVIDUAL Although guardianship courts are typically not free-standing “specialty courts” along the lines of, for example, “drug courts” or “mental health courts,” they are nonetheless highly specialized courts leading to distinct ethical dilemmas for legal practitioners. One ever-present source of ethical conflict is the attempt to balance counsel’s obligation to advocate for the examinee’s wishes when, because of a readily apparent disability, those wishes are patently unreasonable. In some jurisdictions, private and court-appointed counsel alike may be minimally trained, making it all the more important for them to receive clear ethical guidelines from courts, legislatures, and professional legal associations.

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ENCOURAGEMENT OF EFFORTS OF OTHER COMMUNITY GROUPS AND AGENCIES THAT MONITOR THE INDIVIDUAL’S WELL-BEING Particularly in these days of strained resources for courts in almost every jurisdiction, the participation of other publicly and privately funded institutions is welcomed. Beyond financial considerations, these entities often enjoy the sorts of day-to-day contact with disabled examinees that courts would be hard pressed to duplicate, even with limitless budgetary and personnel resources at their disposal.

Standards of Practice Along the lines of the steps just described, the National Guardianship Association recently updated its Standards of Practice (2007), recommending that each guardian “develop and monitor a written guardianship plan” to identify “short-term and long-term goals” that are “addressed in the guardianship order.” These include “medical, psychiatric, social, vocational, educational, training, residential, and recreational needs . . . if those needs exist,” with an acknowledgment of an additional need to determine if available finances are sufficient to meet such needs. These Standards additionally advise that “the plan must be based on a multidisciplinary functional assessment” and that “the plan must be updated no less than annually” (pp. 9–10). Hardy (2008) concluded that “judicial control cannot be exercised in isolation. It must be predicated upon accurate pre-guardianship information and effective monitoring systems. Guardianship is most efficacious [when pursued] through judicial oversight and structured monitoring” (p. 4).

Functional Legal Constructs In each case, guardianship evaluations require exploration of specific civil competencies. These are described in this section, with reference to specific state-law examples.

Testamentary Capacity Testamentary capacity typically requires some combination of the following: whether the examinee (a) understands what it means to make a will; (b) is aware of the nature and extent of his property;

The Legal Context 13

(c) can describe a rational plan for distributing that property; and (d) can identify the “natural objects of one’s bounty,” characterized as “the persons one would normally expect to inherit the possessions in question” (Drogin, 2008). New Hampshire’s guardianship statute, for example, directs that 1 “no person determined to be incapacitated thus requiring the chapter appointment of a guardian . . . shall be deprived of any legal rights, including [the right] to make a will . . . except upon specific findings of the court” (N.H. Rev. Stat. Ann. }464-A:9(IV)) and that a guardian, once appointed, may “petition the probate court for authorization . . . to plan for the testamentary distribution of the ward’s estate” (N.H. Rev. Stat. Ann. }464-A:26-a(III)). This statute does not, however, specify for the convenience of the court or the guardianship evaluator just what constitutes the legal standard for testamentary capacity. Instead, this standard was established by the Supreme Court of New Hampshire in Boardman v. Woodman (1866), which stated that a person executing a will must “at the time of making it” possess the capacity to “understand that nature of the act she was doing,” “recollect the property she wished to dispose of and understand its general nature,” “bear in mind those who were then her nearest relatives as such,” and “make CASE LAW an election upon whom and how she would Boardman v. bestow the property by her will” (p. 122). The Woodman (1866) Court has since confirmed in In re Estate of l Established the legal Katherine F. Washburn (1997) that there are standard for “two distinct inquiries” that courts must contestamentary capacity duct in these cases: “(1) whether the testatrix in New Hampshire possessed testamentary capacity to execute In re Estate of Katherine F. a will; and (2) if the testatrix had such Washburn (1997) capacity, whether the will is the offspring of l Confirmed that the court a delusion or was executed during a lucid must assess whether interval” (p. 662). the testatrix possessed

Voting

the capacity to execute

Although “the right to vote is perhaps the most basic privilege in a democratic society” (Parry & Drogin, 2007, p. 154), the National

a will, and if so, whether that will was executed during a lucid interval

14 Foundation

Voter Registration Act of 1993 provides that “the name of a registrant” may be “removed from the official list of eligible voters . . . by reason of criminal conviction or mental incapacity” (42 U.S.C. }1977(gg)). According to Karlawish et al. (2004), when it comes to determining how this is implemented at the local level: State laws vary substantially. About two thirds of the states and the District of Columbia disenfranchise individuals on the basis of legal classifications not specifically related to the capacity to vote. The typical provision precludes registration by persons who have been adjudicated as “insane” or mentally incompetent or incapacitated or who are under a guardianship order. Only 8 states focus their exclusionary criteria specifically on the capacity to vote (Connecticut, Florida, Iowa, Massachusetts, New Mexico, Ohio, Oregon, and Wisconsin), but none of these states identifies a standard to assess an individual’s capacity to vote. (p. 1346)

Ohio’s electoral statutes, for example, direct each political subdivision’s probate judge to file “the names and residence addresses of all persons over eighteen years of age who have been adjudicated incompetent for the purpose of voting” (Ohio Rev. Code Ann. }3503.18). Ohio law identifies voting as a “civil right” that would require a judicial proceeding other than simply involuntary civil commitment (Ohio Rev. Code Ann. }5122.301), and “the rights of persons with mental retardation or a developmental disability” specifically include “the right to participate in the political process” (Ohio Rev. Code Ann. }5123.62(W)). In Ohio guardianship proceedings, “unless a court specifically rules that a person is incompetent for purposes of voting, an individual retains the right to vote” (Zwyer, 2003, p. 9). CASE LAW Missing here, of course, is any overt guidance Doe v. Rowe for Ohio guardianship judges in identifying a (2001) specific standard for voting competency. The lack of such guidance may contribute to the l Specified that persons broader phenomenon that “for many people seeking to retain the with disabilities,” the “right to vote has right to vote must remained illusory” (Kanter & Russo, 2006, “understand the nature p. 852). and effect of voting”

The Legal Context 15

In one commonly cited case, a Maine federal district court in Doe v. Rowe (2001) reviewed a state statute that denied voting rights to all persons under guardianship by virtue of mental illness. Two of the three plaintiffs in this case had been diagnosed with bipolar disorder, and it was this condition that their respective probate courts had found to form the clinical basis for imposition of guardianship. The court found that such a blanket statutory denial of voting rights was a violation of both the Equal Protection clause of the U.S. Constitution and the Americans with Disabilities Act (1990) but did specify that persons under guardianship seeking to retain this right must “understand the nature and effect of voting” (p. 51).

Marriage As a general matter, “since possession of sufficient mental capacity is essential, statutes allow annulments on the grounds of mental incapacity at the time of the marriage, but marriages will not be annulled if entered into during a lucid interval” (Parry & Drogin, 2007, p. 153). In Illinois, for example, although statutory law does not address any competency-based impediments to becoming married, it may subsequently be determined that “a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity” (750 Ill. Comp. Stat. Ann. }5.301(1)). In Larsen v. Larsen (1963), the Appellate Court of Illinois held in this regard that: There is no clear dividing line between competency and incompetency, and each case must be judged by its own peculiar facts; the parties must have sufficient mental capacity to enter into the status, but proof of lack of mental capacity must be clear and definite; if the party possesses sufficient mental capacity to understand the nature, effect, duties, and obligations of the marriage contract into which he or she is entering, the marriage contract is binding, as long as they are otherwise competent to enter into the relation. (p. 473)

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Acknowledging the standard elucidated in Larsen, the Supreme In general, marriage entered into Court of Illinois concluded in Pape during a lucid interval is not v. Byrd (1991) that “the appointeligible for annulment on mental ment of a guardian of a person is health grounds. not sufficient, in and of itself, to show that the person was incompetent to have consented to a marriage” (p. 21), requiring instead that the probate court specifically address the person’s competence to marry and make appropriate findings of fact and law before depriving a guardianship examinee of this particular right.

INFO

Automobile Driving Distinct from other capacity-related options that are properly characterized as “rights,” driving an automobile is more appropriately characterized as a privilege, tied to license granted by a particular jurisdiction’s Department of Motor Vehicles (DMV) or local equivalent. As noted by the National Highway Traffic Safety Administration (NHTSA): Licensing drivers is within the States’ authority. Although the American

Association

of

Motor

Vehicle

Administrators

(AAMVA) recently began a project, in cooperation from the NHTSA, to develop model guidelines for State DMVs, currently 51 separate sets of regulations define licensing procedures across the States and the District of Columbia. An example of the variety in these regulations can be found in driver-reporting laws that apply to physicians. Currently, 6 States require some level of physician reporting. Some are very specific about the types of conditions that can be reported, but others provide little guidance. Twenty-two States have some sort of protocol for physicians to report voluntarily but do not require it. Five States encourage self-reporting, and 44 States allow a family member to report an impaired driver. States also follow up on these reports in a number of ways; all notify the individual that they have been reported, and most give the option of contesting a report stating that the driver is unsafe. Driver notification is most commonly

The Legal Context 17

done by mail, and significant time can elapse between reporting and notification. (NHTSA, 2008, { 1)

In Pennsylvania, for example, the Medical Advisory Board is responsible for defining “disorders characterized by lapses of consciousness or other mental or physical disabilities affecting the ability of a person to drive safely” (75 Pa. Cons. Stat. }1518(a)). Probate courts seeking to determine whether a guardianship examinee should be deprived of a driver’s license are likely look to such criteria.

Financial Transactions Often referred to as conservatorship or “guardianship of the estate,” this legal construct addresses “the protected person’s financial and property interests only” (Parry & Drogin, 2007, p. 139). In New Mexico, for example, the standard for guardianship-related disability concerning financial transactions is one of “gross mismanagement, as evidenced by recent behavior, of one’s income and resources, or medical inability to manage one’s income and resources that has led or is likely in the near future to lead to financial vulnerability” (N.M. Code R. }45-5-101(H)). Neither “gross mismanagement” nor “medical inability” has ever been interpreted in this context by New Mexico appellate decisions; however, New Mexico’s definition of “functional impairment” is measured by a person’s inability to manage her “financial affairs” (N.M. Code R. }45-5-101(C)), and New Mexico defines as “incapacitated” a person who demonstrates “functional impairment” by reason of such challenges as “mental illness,” “mental deficiency,” “chronic use of drugs,” and “chronic intoxication,” to the extent of an inability to manage her financial affairs (N.M. Code R. }45-5-101(F)).

Independent Living and Medical Care “Over time, disability rights advocates have had considerable success in modifying the prevailing societal belief that virtually all people with disabilities are vulnerable, exploitable, and incapable of making autonomous decisions that fundamentally affect their

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lives” (Batavia, 2003, p. 348). Such progress does not obscure the fact, however, that some persons with disabilities will continue to require the services of a guardian when independent living and self-directed medical care are no longer viable options. Delaware’s statutory definition of a “disabled person” includes an individual who “by reason of mental or physical incapacity is unable properly to manage or care for their own person,” and who, as a consequence, is in danger of “substantially endangering” his own health or “becoming subject to abuse by other persons or of becoming the victim of designing persons” (Del. Code Ann. tit. 29 }3901(a)(2)). In Matter of Gordy (1994), the Delaware Court of Chancery specified that the “mental incapacity” referenced in this statute referred to: 1. A pattern demonstrating an inability to recognize as relevant to decisions of significance, facts or considerations that one would expect reasonable and competent persons to recognize as relevant to such a decision; 2. A pattern demonstrating an inability to reason with respect to decisions that are relatively simple but personally important, in a way that is internally consistent; or 3. The presence of a mental disease or condition that interferes with the operation of the prospective ward’s perceptions or reasoning to such an extent as to raise a substantial likelihood that decisions relating to matters of importance to her have been affected by that mental disease or condition. (p. 617) Furthermore, in In re Last Will and Testament of Palecki (2007), the same court underscored the importance of allowing persons placed under this aspect of guardianship supervision “as much selfdetermination as possible” (p. 418).

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Comparison of State Statutory Schemes Across the United States, legal requirements for the staffing, conduct, and reporting of guardianship evaluations are as unique and diverse as the various jurisdictions that designed them. To provide the reader with a sense of just how considerable these differences can be, we have identified contrasting aspects of the statutory schemes for New York, Kentucky, and Vermont—a large state, a medium one, and a small one.

Who Conducts the Guardianship Evaluation? NEW YORK In New York, guardianship evaluations are conducted by a single entity, who may be “any person including, but not limited to” one of the following: a “mental hygiene service” in the “judicial department” where the examinee resides, a not-for-profit corporation, an attorney, a physician, a psychologist, an accountant, a social worker, or a nurse, as long as the party in question has “knowledge of property management, personal care skills, the problems associated with disabilities, and the private and public resources” available for the limitations the examinee is “alleged to have.” The evaluator’s name is “drawn from a list maintained by the office of court administration” (N.Y. Ment. Hyg. Law }81.09(b)). New York is clearly not bound to the “medical model” when it comes to staffing guardianship evaluations. Implicit here is an acknowledgment that there is more to “disability” than diagnosable mental or physical conditions. The role of the evaluator is apparently understood to be more administrative than clinical in many cases, to the extent that persons who would never have been charged with examining or caring for a “patient” actually will be making recommendations to the court on specifically treatment-related issues. INFO

KENTUCKY In Kentucky, guardianship evaluations are conducted by an “interdisciplinary evaluation team” that consists of a physician, a

State statutory schemes for guardianship evaluations vary considerably.

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psychologist, and a social worker—or in this third instance, an equivalently qualified employee of the Cabinet for Health and Human Services. At least one of the evaluators must have “knowledge of the particular disability which the respondent is alleged to have or knowledge of skills required of the respondent to care for himself and his estate,” and when the examinee’s alleged disability is believed to be due to either mental retardation or mental illness, at least one of the evaluators must additionally be a “qualified mental health professional” in that area, as separately defined by statute (Ky. Rev. Stat. Ann. }387.540(1)-(3)). Kentucky’s staffing model—in contrast to New York’s—is explicitly clinician-centered. One drawback to this “team” approach is its reliance on knowing in advance what sort of the disability the examinee is likely to be experiencing. This could result in legal challenges if the discovery of an unanticipated disability leaves the composition of the team open to question. Somewhat puzzling is the provision that only one of the evaluators need know about the disability in question or what the examinee needs to manage her affairs; shouldn’t the latter form of knowledge be a requirement for anyone providing this particular brand of forensic opinion? VERMONT In Vermont, guardianship evaluations are conducted by a single “qualified mental health professional,” who may be a physician, a psychologist, a social worker, or a certified clinical mental health counselor when the examinee is “an allegedly mentally ill person.” When the examinee is “an allegedly developmentally disabled person,” the evaluation can be conducted by any one of the same assortment of professionals, as well as by a “certified special educator,” with the explicit requirement that all evaluators of this particular class of examinee must have “specialized training and demonstrated competence in the assessment of developmentally disabled persons” (Vt. Stat. Ann. tit. 14, }3061(10)). Vermont’s approach is also clinician-centered, but the broad choice of acceptable professional backgrounds, paired with the need for only a single evaluator, is potentially problematic. Although certified counselors and special educators possess specialized skills

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that may be pivotal in certain cases, these persons may also be subject to training and experience limitations concerning the assessment of disabilities with, for example, substantial medical components. The single-evaluator model espoused by both New York and Vermont does have the advantage of cost containment in this era of constrained state and local budgets.

What Is the Potential “Disability” the Guardianship Evaluator Seeks to Identify? NEW YORK In New York, the notion of “disability” takes a back seat to defining various “capacities” and then assigning the guardianship evaluator the task—described later—of determining the extent to which identified capacities are sufficient to meet individual needs, such as “personal needs,” “property management,” “activities of daily living,” “major medical or dental treatment,” and “life-sustaining treatment.” New York guardianship law does make reference to an examinee’s “functional level,” defined as “the ability to provide for personal needs and/or the ability with respect to property management,” and also an examinee’s “functional limitations,” defined as “behavior or conditions of a person which impair the ability to provide for personal needs and/or property management” (N.Y. Ment. Hyg. Law }81.03). Consistent with its diverse staffing options, New York employs a highly functional approach to guardianship evaluation that once again neglects the traditional “medical model.” Here, the focus is on what the examinee can or cannot do, rather than applying certain labels and leaving the court to infer from those labels what the examinee’s specific limitations may be. Particularly refreshing is this scheme’s emphasis on strengths as well as weaknesses, thus encouraging the court to see a given examinee as a whole person instead of as a collection of mental and physical liabilities. KENTUCKY Kentucky guardianship law specifies that in the context of guardianship evaluations, “disability” refers to “a legal, not a medical

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disability” that is “measured by functional inabilities” and identifies persons 14 years of age and older who are: (a) Unable to make informed decisions with respect to their personal affairs to such an extent that they lack the capacity to provide for their physical health and safety, including but not limited to health care, food, shelter, clothing or personal hygiene; or (b) Unable to make informed decisions with respect to their financial resources to such an extent that they lack the capacity to manage their property effectively by those actions necessary to obtain, administer, and dispose of both real and personal property. (Ky. Rev. Stat. Ann. }387.510(8). This inability must be “evidenced by acts or occurrences” within the 6 months prior to the filing of a guardianship petition and “shall not be evidenced solely by isolated incidents of negligence, improvidence, or other behavior.” Kentucky also distinguishes between someone who is “fully disabled” with regard to these criteria and someone who is “partially disabled” because of an incapacity “to manage some of his personal affairs and/or financial resources,” but who “cannot be found to be fully disabled” (Ky. Rev. Stat. Ann. }387.510(8)-(9)). Kentucky’s definitional approach to disability is nothing if not specific. It breaks down various forms of incapacity into discrete tasks and provides an explicit and sequential road map for evaluators as well as the courts. This is particularly helpful when one considers that guardianship proceedings are unlikely to be a full-time endeavor for the physicians, psychologists, and social workers performing these evaluations—to say nothing of the overworked district court judges who hear these cases within a broad mix of both civil and criminal matters. Kentucky’s distinction between “full” and “partial” disability is client-focused and progressive. VERMONT In Vermont’s statutory guardianship scheme, a “mentally disabled person” is an individual who is either “mentally ill or developmentally disabled” and who is also “unable to manage, without the

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supervision of a guardian, some or all aspects of his or her personal care or financial affairs.” More specifically: (a) “Unable to manage his or her personal care” means the inability, as evidenced by recent behavior, to meet one’s needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future; and (b) “Unable to manage his or her financial affairs” means gross mismanagement, as evidenced by recent behavior, of one’s income and resources which has led or is likely in the near future to lead to financial vulnerability. (Vt. Stat. Ann. tit. 14, }3061(1)(C)(2)-(3)). Vermont also distinguishes between those persons who require “total guardianship,” such that they are “subject to a guardian’s exercise of all the powers” provided for by statute, and those persons who require only “limited guardianship,” such that they are “subject to a guardian’s exercise of some, but not all of the powers” provided for by statute (Vt. Stat. Ann. tit. 14, }3061(1)-(10)). Vermont’s “total” versus “limited” guardianship distinction allows for the appropriate consideration of each individual’s functional assets and liabilities; however, there is a lack of specified time limits for what may be considered “relevant” evidence—a circumstance that could exert either a positive or a negative effect on the court’s decision making in a particular case. What is “recent” behavior? Could the looseness of this definition lead to overreliance on stale incidents of disability or, conversely, to dismissal of prior lapses that could recur at any time because of the chronic or episodic nature of the examinee’s underlying diagnosis?

How Does the Guardianship Evaluator Assess for the Disability in Question? NEW YORK In New York, guardianship evaluators are charged with a lengthy series of duties that include—among others—the following: (a) Meeting, interviewing, and consulting with the person alleged to be incapacitated regarding the proceeding;

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(b) Determining whether the alleged incapacitated person understands English or only another language, and explaining to the person alleged to be incapacitated, in a manner which the person can reasonably be expected to understand, the nature and possible consequences of the proceeding, the general powers and duties of a guardian, available resources, and the rights to which the person is entitled, including the right to counsel; (c) Determining whether the person alleged to be incapacitated wishes legal counsel of his or her own choice to be appointed and otherwise evaluating whether legal counsel should be appointed; (d) Interviewing the petitioner, or, if the petitioner is a facility or government agency, a person within the facility or agency fully familiar with the person’s condition, affairs and situation; (e) Investigating and making a written report and recommendations to the court, including the court evaluator’s personal observations as to the person alleged to be incapacitated and his or her condition, affairs and situation, as well as information in response to the following questions (among others): •

Does the person alleged to be incapacitated agree to the appointment of the proposed guardian and to the powers proposed for the guardian?

•

Does the person wish legal counsel of his or her own choice to be appointed or is the appointment of counsel otherwise appropriate?

•

Can the person alleged to be incapacitated come to the courthouse for the hearing?

•

If the person alleged to be incapacitated cannot come to the courthouse, is the person completely unable to participate in the hearing?

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•

If the person alleged to be incapacitated cannot come to the courthouse, would any meaningful participation result from the person’s presence at the hearing?

•

Are available resources sufficient and reliable to provide for personal needs or property management without the appointment of a guardian?

•

How is the person alleged to be incapacitated functioning with respect to the activities of daily living and what is the prognosis and reversibility of any physical and mental disabilities, alcoholism or substance dependence? The response to this question shall be based on the evaluator’s own assessment of the person alleged to be incapacitated to the extent possible, and where necessary, on the examination of assessments by third parties, including records of medical, psychological and/or psychiatric examinations. As part of this review, the court evaluator shall consider the diagnostic and assessment procedures used to determine the prognosis and reversibility of any disability and the necessity, efficacy, and dose of each prescribed medication.

•

What is the person’s understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living?

•

What would be the least restrictive form of intervention consistent with the person’s functional level and the powers proposed for the guardian?

•

What assistance is necessary for those who are financially dependent on the person alleged to be incapacitated?

•

Is the choice of proposed guardian appropriate, including a guardian nominated by the allegedly incapacitated person? (N.Y. Ment. Hyg. Law }81.09(c)).

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New York guardianship evaluators are also tasked with “interviewing or consulting with professionals having specialized knowledge in the area of the person’s alleged incapacity,” as well as “retaining an independent medical expert where the court finds it is appropriate” (N.Y. Ment. Hyg. Law }81.09(c) (7)–(8)). This highly detailed outline of duties sheds additional light on the bases for New York’s unusual staffing requirements for guardianship evaluations. Here, recommendations are required that in some instances are at least as legal or actuarial as they are medical or psychological, and there is considerable allowance for commissioning outside expertise when the evaluator’s own clinical knowledge, skills, training, education, or experience may be lacking. A laudable emphasis on the rights of the individual examinee is readily and repeatedly apparent in this statutory scheme. KENTUCKY In Kentucky, the guardianship report “may be filed as a single and joint report of the interdisciplinary evaluation team, or it may otherwise be constituted by the separate reports filed by each individual of the team” (Ky. Rev. Stat. Ann. }387.540(1)). According to Ky. Rev. Stat. Ann. }387.540(4), each report must contain the following components: (a) A description of the nature and extent of the respondent’s disabilities, if any; (b) Current evaluations of the respondent’s social, intellectual, physical, and educational condition, adaptive behavior, and social skills. Such evaluations may be based on prior evaluations not more than three (3) months old, except that evaluations of the respondent’s intellectual condition may be based on individual intelligence test scores not more than one (1) year old; (c) An opinion as to whether guardianship is needed, the type of guardianship needed, if any, and the reasons therefor;

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(d) An opinion as to the length of time guardianship will be needed by the respondent, if at all, and the reasons therefor; (e) If limited guardianship is recommended, a further recommendation as to the scope of the guardianship, specifying particularly the rights to be limited and the corresponding powers and duties of the limited guardian; (f) A description of the social, educational, medical, and rehabilitative services currently being utilized by the respondent, if any; (g) A determination whether alternatives to guardianship are available; (h) A recommendation as to the most appropriate treatment or rehabilitation plan and living arrangement for the respondent and the reasons therefor; (i) A listing of all medications the respondent is receiving, the dosage, and a description of the impact of the medication upon the respondent’s mental and physical condition and behavior; (j) An opinion whether attending a hearing on a petition filed under this statute would subject the respondent to serious risk of harm; (k) The names and addresses of all individuals who examined or interviewed the respondent or otherwise participated in the evaluation; and (l) Any dissenting opinions or other comments by the evaluators. Kentucky’s approach, like New York’s, is highly detailed, but more in terms of domains than specific behavioral requirements. Requiring each report—as well as each evaluation—to address these components means that the court will have an easier time weighing the relevant factors in reaching its own determination. The option of joint as opposed to individual reports may complicate

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cross-examination when it comes to sorting out just who contributed what to the evaluation, particularly in the event of one or more “dissenting” opinions. The enforceable time limit on reporting intelligence test scores will be particularly useful and welcome in cases in which disability is ascribed to precipitous cognitive decline as opposed to a comparatively static developmental disability. VERMONT In Vermont, guardianship evaluators have 30 days from the date the guardianship petition is filed in which to complete their evaluations, and each evaluation must be summarized in a report that adheres to the following requirements: (1) Describe the nature and degree of the respondent’s disability, if any, and the level of the respondent’s intellectual, developmental and social functioning; (2) Contain recommendations, with supporting data, regarding: (a) Those aspects of his personal care and financial affairs which the respondent can manage without supervision or assistance; (b) Those aspects of his personal care and financial affairs which the respondent could manage with the supervision or assistance of support services and benefits; (c) Those aspects of his personal care and financial affairs which the respondent is unable to manage without the supervision of a guardian; and (d) Those powers and duties . . . which should be given to the guardian, including the specific support services and benefits which should be obtained by the guardian for the respondent. (Vt. Stat. Ann. tit. 14, }3067(b)-(c)). Vermont’s “supporting data” requirement sets the stage for rigorous cross-examination, with counsel demanding at every turn not just how the evaluator reached his bottom line conclusions but

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how each subordinate recommendation can BEST be substantiated. Social work expertise may PRACTICE Be familiar with the specific prove particularly useful when the time comes legal requirements and to identify “specific support services and court interests in your benefits”—a knowledge base that is often jurisdiction. 1 beyond the immediate recall of evaluators chapter from other helping professions. Again, the explicit focus on what the examinee can and cannot do will help the court to gain a fuller sense of the situation in question and the most appropriate and affirming remedies available. Overall, we hope that exposure to these diverse approaches, undertaken by three different jurisdictions, will inspire novice and experienced guardianship evaluators alike to go back to the basics— specifically, to review the specific requirements of their own states and to ensure that their own forensic evaluations are actually keeping pace with what the law requires and what the courts are anxious to learn.

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Forensic Mental Health Concepts

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he core forensic mental health concept in guardianship is “disability” (labeled by some statutes as “incapacity”). Fundamentally, guardianship evaluators must determine whether a person can actually do each of those things that comprise the legal competency in question. Can examinees perform the tasks at issue, or can they not? Lawyers, judges, and mental health professionals alike are occasionally prone to view disability as a binary and universally applicable notion—“disabled” versus “not disabled”—without pausing to consider that this term has a different meaning for each of the jurisdictionally specific spheres of competency addressed by guardianship proceedings. This chapter provides examples of clinical correlates for such potential guardianship components as testamentary capacity, voting, marriage, driving an automobile, financial transactions, and independent living and medical care. The reader should bear in mind that, again, these are merely examples. Many clinical correlates may apply to a particular guardianship component.

Testamentary Capacity Delusional Disorder One diagnostic formulation suggested by the legal construct for testamentary capacity is delusional disorder, for which the Diagnostic and Statistical Manual of Mental Disorders (4th edition, text revision) (DSM-IV-TR) identifies the following elements: 1. Nonbizarre delusions (i.e., involving situations that occur in real life, such as being followed, poisoned, 31

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infected, loved at a distance, or deceived by spouse or lover, or having a disease) of at least one month’s duration. 2. Criterion A for Schizophrenia (involving the presence of two or more of the following symptoms during a one-month period: delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, or negative symptoms such as affective flattening, alogia, or avolition) has never been met. 3. Apart from the impact of the delusions(s) or its ramifications, functioning is not markedly impaired and behavior is not obviously odd or bizarre. 4. If mood episodes have occurred concurrently with delusions, their total duration has been brief relative to the duration of the delusional periods. 5. The disturbance is not due to the direct physiological effects of a substance (e.g., drug or abuse, a medication) or a general medical condition. (American Psychiatric Association, 2000, p. 329) As directly suggested by this scheme, viable differential diagnostic alternatives for capacity-related delusional behavior may include schizophrenia, substance abuse, or a host of physiologically based conditions that might permanently or even temporarily affect the examinee’s ability to distinguish between fantasy and reality. Relevant to the advanced age of many guardianship examinees, Mueser (2000) has pointed out that “the onset of delusional disorder usually occurs in middle age, later than that of Schizophrenia” (p. 39).

Undue Influence One phenomenon with clinical diagnostic implications is that of undue influence, defined as occurring when there is “excessive influence on a testator by another individual,” such that “the dispositive contents of the will reflect the wishes of the influencer

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rather than those of the testator” (Marson, Huthwaite, & Hebert, 2004, p. 78). Regan and Gordon (1997) identified the following clues for determining when a third party may be “engaging in manipulations or deception to significantly impair the ability of testators to freely decide on distribution of their property”:

BEST PRACTICE Obtain detailed and reliable background information when assessing undue influence.

1. The person requesting the examination indicates the competency statement is routine because of the testator’s age. 2. The examination appointment is made by someone other than the testator and his [or her] attorney. 3. The testator is brought to the examination office by someone who is reluctant to allow the testator to be interviewed alone. 4. Specifics about the will are not given or the testator seems unclear about specific items in the will. 5. The testator is reluctant to give information about the potential heir and their relationship. (p. 14) In such situations, is the guardianship examinee manifesting symptoms of a dependent personality disorder? Are there more sinister—albeit less clinically constructed—issues such as blackmail or withholding of services? It would be difficult to overemphasize the importance of gaining detailed and reliable background information when attempting to reach a valid conclusion in this regard.

Voting The case of Doe v. Rowe mentioned in Chapter 1 provides a useful example of a relevant clinical condition—bipolar disorder, manifested in some cases by alternation between manic episodes and major depressive episodes—as well as a functional legal standard

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against which to measure related symptoms. The DSM-IV-TR identifies the following criteria for a manic episode: 1. A distinct period of abnormally and persistently elevated, expansive, or irritable mood, lasting at least one week (or any duration if hospitalization is necessary). 2. During the period of mood disturbance, three (or more) of the following symptoms have persisted (four if the mood is only irritable) and have been present to a significant degree: inflated self-esteem or grandiosity; decreased need for sleep; more talkative than usual or pressure to keep talking; flight of ideas or subjective experience that thoughts are racing; distractibility; increase in goal-directed activity or psychomotor agitation; excessive involvement in pleasurable activities that have a high potential for painful consequences. 3. The symptoms do not meet criteria for a Mixed Episode (involving the presence of both Manic Episodes and Major Depressive episodes nearly every day during at least a one-week period). 4. The mood disturbance is sufficiently severe to cause marked impairment in occupational functioning or in usual social activities or relationships with others, or to necessitate hospitalization to prevent harm to self or others, or there are psychotic features. 5. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication, or other treatment) or a general medical condition (e.g., hyperthyroidism). (American Psychiatric Association, 2000, p. 362) By contrast, the DSM-IV-TR criteria for a major depressive episode include the following: 1. Five (or more) or the following symptoms (briefly described here) have been present during the same

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two-week period and represent a change from previous functioning, and at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure: depressed mood; markedly diminished interest or pleasure; significant weight loss; insomnia or hypersomnia; psychomotor agitation or retardation; fatigue or loss of energy; feelings of worthlessness or excessive or inappropriate guilt; diminished ability to think or concentrate or indecisiveness; recurrent thoughts of death, recurrent suicidal ideation, suicide attempt, or specific plan for committing suicide. 2. The symptoms do not meet criteria for a Mixed Episode. 3. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. 4. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication, or other treatment) or a general medical condition (e.g., hyperthyroidism). 5. The symptoms are not better accounted for by Bereavement. (American Psychiatric Association, 2000, p. 356) Guardianship examiners seeking clinical correlates of an apparent lack of understanding of the “nature and effect of voting” may find much of relevant substance in criteria for both manic episodes and major depressive episodes. During the former, guardianship examinees may be too distracted to process and articulate these notions, whereas during the latter, their degree of apathy may similarly render them incapable of the necessary focus. Care should be taken, of course, to accommodate the episodic nature of bipolar INFO disorder, because some persons Many disorders have symptom-free with even severe manifestations of periods in which the person may this condition may enjoy probe able to vote. longed, relatively symptom-free intervals coinciding with scheduled

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election dates. The waxing and waning of other mentioned diagnoses—such as substance abuse, hyperthyroidism, or bereavement—merit similar attention to symptomatic timelines as well as the potential for substantial remission.

Marriage Mental retardation is one clinical context in which the capacity to marry is likely to arise. According to the DSM-IV-TR, this diagnosis comprises the following three components: 1. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test. 2. Concurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/ interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, safety). 3. The onset of these symptoms is before age 18 years. (American Psychiatric Association, 2000, p. 49) As with any forensically relevant diagnostic finding, care must be taken to discourage the court from tying marital capacity too closely to the binary notion of either presence or absence of mental retardation. For one thing, various ranges of mental retardation run from profound (an IQ level below 20 or 25) to mild (an IQ level of 50 or 55 to approximately 70), and it is not uncommon to see legally sanctioned marriages occurring within the latter range (Oliver, Anthony, Leimkuhl, & Skillman, 2002). For another, there is an uncomfortable circularity to employing a diagnosis that rests on “deficits BEWARE Mental retardation or impairments in present adaptive in itself does not functioning” in order to establish the presence equal marital incapacity. of such challenges.

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These concerns having been acknowledged, it will be clear to any practicing clinician that a guardianship examinee with mental retardation may possess such pronounced intellectual limitations and face such adaptive barriers that the nature, effect, duties, and obligations of the marital relationship will remain beyond that examinee’s grasp for the foreseeable future. Also, of course, mental retardation is not the only diagnostic formulation that may contribute to this result. A chronic and pervasive psychotic condition such as schizophrenia, for example, may also prevent a guardianship examinee from consistently recognizing legally relevant notions for establishing and maintaining a valid marriage (Hopper, Wanderling, & Narayanan, 2007; Rhoades, 2000).

Automobile Driving In Pennsylvania, the various disorders qualifying as “mental” disabilities include those described in the DSM-IV-TR (or subsequent versions) that involve: 1. Inattentiveness to the task of driving because of, for example, preoccupation, hallucination, or delusion. 2. Contemplation of suicide, as may be present in acute or chronic depression or in other disorders. 3. Excessive aggressiveness or disregard for the safety of self or others or both, presenting a clear and present danger, regardless of cause. (67 Pa. Code }83.5(i)-(iii)). This Pennsylvania regulation further notes that “while signs or symptoms of mental disorder may not appear during examination by the provider, evidence may be derived from the person’s history as provided by self or others familiar with the person’s behavior” (67 Pa. Code }83.5). This, of course, may raise issues as to the appropriateness of proffering a forensic finding BEWARE when evidence of disability appears to rest Relying solely on mental health entirely upon hearsay. assessment of driving In addition, there are those who suggest capacity has been called into question. that for liability containment as well as standard

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of practice reasons, this sort of assessment should be given a wide berth, even when the court would prefer to have the guardianship examiner’s support in reaching its ultimate conclusion about driving capacity. Appelbaum and Gutheil (2007) pointed out that “the availability of private, computerized assessments of driving skills constitutes another resource in cases in which it is difficult to determine whether a patient’s driving is problematic” and that “patients or family members can be encouraged to make an appointment for this evaluation at an appropriate local facility,” particularly for “patients with mild to moderate dementia, whose skills are declining but who are resisting the surrender of their car keys” (p. 154). The American Psychiatric Association (1993) has gone so far as to state that “psychiatrists have no special expertise in assessing the ability of their patients to drive. Thus, psychiatrists should not be expected to make such assessments in the usual course of clinical practice” ({ 1). This is not, of course, to assert that mental health professionals, by questioning their own suitability to make driving capacity determinations, have provided a blanket endorsement to the acuity of other examiners. For example, Kay, Bundy, Clemson, and Jolly (2008) were generally complimentary in their analysis of the psychometric properties of standard on-road driving assessments for senior drivers, identifying good construct validity but only a moderate reliability index. Ponsford, Viitanen, Lundberg, and Johansson (2008) recommended using multidisciplinary assessment groups—including neuropsychologists—to analyze the poststroke performance of older drivers. This inclusive perspective has also been reflected in the recommendations of the American Bar Association/American Psychological Association Assessment of Capacity in Older Adults Working Group (“ABA/APA Working Group,” 2008), which stated that: The license to drive is dependent on both physical and mental abilities that affect the ability to follow traffic laws and rules. Therefore, an evaluation should assess: (1) a person’s physical ability to drive; (2) cognitive ability to understand not just driving

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rules, but how to properly drive a car; (3) cognitive ability to implement knowledge of driving-related information; and (4) psychiatric, substance use, and emotional factors that contribute to driving. (p. 91)

Whatever the individual guardianship evaluator’s perspective on participating in driving capacity determinations, she is well advised to ensure that an endorsement is not being made by default. In other words, reports that focus solely on “deficits” and do not enumerate all of the domains assessed may lead the court to believe that the guardianship examinee is otherwise capable wherever he is not specifically described as impaired.

Financial Transactions The complexity of stepwise processing in financial transactions means that clinical correlates are distributed across a broad span of potential diagnoses. According to the ABA/APA Working Group (2008): Financial capacity is a multi-dimensional and highly cognitive mediated capacity. Accordingly, it is a capacity that is very sensitive to medical conditions that affect cognitive and behavioral functioning. Medical conditions that impair financial capacity include neurodegenerative disorders like Alzheimer’s disease (AD) and Parkinson’s disease, severe psychiatric disorders like schizophrenia and bipolar disorder, substance abuse disorders, and developmental disorders, such as mental retardation and autism. (p. 74)

In the currently contemplated forensic scheme, substance abuse—or its longer term effects—may feature prominently in the legal construct and clinical correlates alike. Guardianship examiners will note that there are no such formal diagnoses as “addiction” or “alcoholism” in the DSM-IV-TR, which focuses instead on distinctions between “substance abuse” and “substance dependence.” Concerning “substance abuse,” the DSM-IV-TR requires “a maladaptive pattern of substance use,” not rising to the level of

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dependence, but “leading to clinically significant impairment or distress, reflected in the presence of at least one of the following criteria over the course of a single 12-month period: 1. Recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home. 2. Recurrent substance use in situations in which it is physically hazardous. 3. Recurrent substance-related legal problems. 4. Continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance. (American Psychiatric Association, 2000, p. 199) Establishing incapacity in this context, based on any of the preceding symptoms in isolation, may prove somewhat difficult in a given case, in light of the need to demonstrate the guardianship examinee’s “inability” to manage his financial affairs. It is probably the first criterion that would have the most direct impact on the legal decision-maker. Much more compelling may be certain DSMIV-TR criteria for “substance dependence,” which differ from “substance abuse” in requiring the presence of three or more of the following: 1. Tolerance. 2. Withdrawal. 3. The substance is often taken in larger amounts or over a longer period of time than was intended. 4. There is a persistent desire or unsuccessful efforts to cut down or control substance use. 5. A great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from its effects. 6. Important social, occupational, or recreational activities are given up or reduced because of substance use.

Forensic Mental Health Concepts 41

7. The substance use is continued BEWARE Mere money despite knowledge of having a mismanagement persistent or recurrent physical or does not qualify as financial incapacity. psychological problem that is likely to have been caused or exacerbated by the substance. (American Psychiatric Association, 2000, p. 197) Here, either or both of the fifth and sixth criteria may offer the most compelling arguments for the requisite “inability,” given the potentially combined effects of squandered earning time and even the abandonment of gainful employment. Those seeking to thwart efforts to impose guardianship would want to focus on the specifics of money management and to downplay any connection between intoxication, tolerance, or withdrawal symptoms and any financial difficulties the guardianship examinee might have experienced, because mere mismanagement, absent an appropriate clinical correlate, does not provide a legally supportable basis for the imposition of a substitute decision maker.

Independent Living and Medical Care For those who once possessed the capacity for independent living and medical care but are now unable to meet this standard, a common clinical correlate is the presence of dementia of the Alzheimer’s type. The DSM-IV-TR lists the following criteria for this disorder: 1. The development of multiple cognitive deficits manifested by both memory impairment and one or more of the following: aphasia, apraxia, agnosia, or disturbance in executive functioning. 2. The previously cited cognitive deficits each cause significant impairment in social or occupational functioning and represent a significant decline from a previous level of functioning. 3. The course is characterized by gradual onset and continuing cognitive decline.

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4. The previously cited cognitive deficits are not due to any of the following: other central nervous system conditions that cause progressive deficits in memory and cognition; systemic conditions that are known to cause dementia; or substanceinduced conditions. 5. The deficits do not occur exclusively during the course of a delirium. 6. The disturbance is not better accounted for by another Axis I disorder (e.g., Major Depressive Disorder, Schizophrenia). (American Psychiatric Association, 2000, p. 157) Properly conducted guardianship evaluations in this area will rely, in particular, on appropriate documentation and keen attention to differential diagnostic considerations. To establish “a significant decline from a previous level of functioning,” it is necessary to determine just what that previous level may have been. Persons who present with symptoms consistent with dementia of the Alzheimer’s type may, in fact, be delirious due to an overdose or interaction of prescribed medications, may suffer from a vitamin deficiency due to malnutrition, or may simply be dehydrated. Distinguishing between dementia and major depression is among the most challenging as well as the most important tasks in this mode of forensic assessment (Bielinski & Lawlor, 2006; Wright & Persad, 2007). Guardianship examiners will benefit from comparing and contrasting the diagnostic criteria for both disorders, as enumerated in this chapter. Perhaps the most salient aspect of this obligation is the notion of treatability, because the permanent imposiBEWARE tion of guardianship would be inappropriate Assess whether when disability is based on an affective conapparent dementia is instead a different dition that is reversible with the proper comcondition for which bination of psychotherapy and psychiatric guardianship would be unsuitable. medications.

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Characteristics of Guardianship Examinees Age Given that “it is by now axiomatic that the population of most North American and European countries is aging” (Petrila, 2007, p. 337), we should not be surprised most of the scientific and legal scholarship in the guardianship arena over the course of the past two decades has focused substantially on older adults (Drogin, 2007). Along these lines, Gavisk and Greene (2007) commented that “one consequence of longevity is an increase in the incidence of impairment in mental capacity . . . the collection of skills such as memory, reasoning, judgment, and decision making required to manage one’s affairs and perform everyday tasks” (pp. 339–340). Alzheimer’s disease is the major cause of dementia for older persons (Evans, Funkenstein, & Albert, 1989). In addition, Macklin, Depp, Are` an, and Jeste (2006) noted that up to 80% to 90% of older persons with dementia will also manifest such psychiatric symptoms as agitation, anxiety, and depression. A certain degree of cognitive deterioration can be expected as a natural function of aging, separate from any identifiable disease process. On the basis of the results of a study of more than 1,100 respondents between the ages of 15 and 89, Foster, Cornwell, Kisley, and Davis (2007) determined that for verbal tasks, “individuals aged 15 to 19 and over 50 are impaired relative to participants in their 43

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40s, and a linear decline is notable, beginning in the 40s,” and “similarly, a linear decline is present in visuospatial memory, which beings in the 20s and becomes significant in the 40s” (p. 27).

Ethnic Group According to the American Psychological Association’s Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline (1998), there are significant “gaps ... in the normative data for very old persons and for diverse ethnic and linguistic populations” (p. 1301). Concerning the latter, Karel (2007) emphasized the central importance of understanding “cultural attitudes, beliefs, and practices—related to racial, ethnic, religious, regional, and other influences” (p. 145), citing numerous examples of research that address such notions as a declining order of African Americans, Hispanic Americans, and non-Hispanic Whites in preference for lifesupport intervention (Kwak & Haley, 2005), the greater preference of less as opposed to more acculturated Japanese Americans for consensus in reaching capacity-related decisions (Matsumura et al., 2002), and broad differences between various cultures regarding the value of informed consent (Kawaga-Singer & Blackhall, 2001).

Characteristics of Guardianship Evaluators As described in Chapter 1, different statutory schemes enable unique combinations of professionals—including, at times, attorneys, accountants, and even laypersons—to conduct guardianship evaluations in the various states and territories. Concerning the characteristics of psychologists serving as guardianship evaluators, Qualls, Segal, Norman, Niederehe, and Gallagher-Thompson (2002) queried 1,227 members of the American Psychological Association concerning their practices with the older adult population that comprises the primary focus of guardianship evaluations, concluding that: Although only a small percentage (3%) viewed geriatric patients as their primary professional target, 69% of respondents (n ¼ 845) reported that they currently provided some type of psychological service to older adults . . . 434 (51%) conducted assessments . . . the

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percentage of respondents offering services to older adults was highest among respondents working in long-term care (88%), independent practice (70%), or

BEST PRACTICE Be familiar with practices appropriate for use with older adults.

hospitals (57%). (p. 437)

According to the American Bar Association Committee on Aging and the American Psychological Association (2005), “the most important criterion is the clinician’s experience and knowledge in the assessment of older adults,” with explicit recognition that “relevant medical boarded specialties include geriatric medicine, psychiatry, neurology, geriatric psychiatry, and forensic psychiatry,” while for psychologists, “there is increasing specialization although the boarding process has not been as important as in medicine” (p. 32). The American Psychological Association published Guidelines for Psychological Practice with Older Adults (2004), which urges examiners to become “familiar with the theory research, and practice of various methods of assessment with older adults, and knowledgeable of assessment instruments that are psychometrically suitable for use with them” (p. 237).

Measures Employed in Guardianship Evaluations Neuropsychological Testing Not surprisingly, neuropsychological testing plays a prominent role in guardianship examinations. Gurrera, Moye, Karel, Azar, and Armesto (2006) administered a battery of 11 neuropsychological tests—including such frequently employed measures as the Trail Making Test, the Boston Naming Test, and components of the Wechsler Adult Intelligence Scale—to 88 subjects with an average age of approximately 75 years and diagnoses of mild to moderate dementia, to determine the effectiveness of these tests in predicting treatment decisional abilities. These authors reported that “performance on a neuropsychological test battery significantly predicted each treatment decisional ability,” specifying that “the neuropsychological predictors examined in this study explained 78% of the common variance in understanding, 39.5% of the

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common variance in reasoning, and almost 25% of the common variance in appreciation” (p. 1370).

Computerized Assessment Numerous paper-and-pencil tests and examiner-endorsed checklists are described in Chapter 6 of this book; however, it should be noted that computerized assessment is increasingly employed in the context of guardianship evaluations and will doubtless become a substantial factor in the decades to come. Fillit, Simon, Doniger, and Cummings (2008) have described how this modality is replacing often impractical neuropsychological testing with promising results, including positive ratings for ease of use by 73% of persons previously classified as noncomputer users. Ease of use alone may not be sufficient to appease detractors of this approach, particularly in light of statistical anomalies with changed item orders in computerized personality testing (Ortner, 2008).

Research on Assessment Practice Moye, Wood, Edelstein, Armesto, et al. (2007) conducted an intensive tristate review (involving Massachusetts, Pennsylvania, and Colorado) of case files in 298 guardianship matters, and reported significant concerns—among others—in the following areas: 1. Format of Clinical Testimony Submitted to the Courts: In Massachusetts, the mean length of the written reports was only 83 words, compared to 244 words in Pennsylvania and 781 words in Colorado. 75% of the Massachusetts reports were handwritten, and of these almost two thirds contained illegible passages. 2. Evaluations of Clinical Status: In Colorado, 18.6% of guardianship examinees were subjected to some form of cognitive screening, compared to only 5.3% in Pennsylvania and 5.2% in Massachusetts. Similar disparities were noted for neuropsychological testing (34.3% of Colorado cases, 1.8% of Pennsylvania cases, and 0.7% of Massachusetts cases) and for brain imaging (22.9% of Colorado cases, 1.8% of Pennsylvania cases,

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and 1.3% of Massachusetts cases).The overall incidence of interviews with family members ranged between 4.3% and 11.4% for these three jurisdictions. 3. Missing Prognoses: Prognoses were offered in only approximately half of Colorado cases, with “lower rates” in Pennsylvania and Massachusetts cases. 4. Conclusory Statements About Decision Making: “Across states, 28.8% of the files included conclusory comments about decision making; that is they provided a general conclusion about decision making abilities but did not describe significant symptoms of mental impairment.” 5. Conclusory Statements About Functioning: “Across states, 64.1% of the files offered conclusory statements about functioning; that is, they included a statement about the ability to care for self with no description of specific functional symptoms.” 6. Frequency of Limited Orders: 34% of cases in Colorado allowed for preservation of at least some rights for guardianship examinees; in Massachusetts and Pennsylvania, however, only one case in each state was characterized by a limited order of this nature. (pp. 608–609) Concerning the last of these issues, Moye (2003) further observed that limited orders are applied in less than 15% of cases—a phenomenon typically traceable to the nature and contents of guardianship evaluations by clinicians conducted as opposed to any particular statutory requirement. Some jurisdictions are exceptional in this regard—for example, Millar and Renzaglia (2002) reviewed 221 cases in Michigan and found partial guardianships to have been applied in approximately 46% of adjudications in nine counties. The need for greater flexibility and alternative approaches to the challenges faced by guardianship examinees has been noted in foreign jurisdictions as well, including Israel (Melamed, Doron, & Shnitt, 2007) and Australia (Shaddock, Dowse, Richards, & Spinks, 1998).

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Preparation for the Evaluation

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n 1990, Anderer, Coleman, Lichtenstein, and Parry pointedly (and correctly) observed that “the literature provides little practical advice for performing assessments particularly geared toward guardianship cases” (p. 19). This situation has gradually improved, although “many states have no statutes or regulations requiring expert evaluations in guardianship and other civil incompetency proceedings” despite the growing recognition that “expert testimony, in combination with informed representation, may comprise the most important factor in obtaining just results in any type of competency proceeding” (Parry & Drogin, 2007, p. 141).

The Referral Identifying Specific Legal Questions It is difficult to overemphasize the importance of determining exactly what the court or the retaining attorney is asking the guardianship evaluator to do. For one thing, the “one size fits all” evaluation brings the evaluator’s expertise and credibility into question in the same fashion as the “cookie-cutter” report in which the only things that change are the date and the examinee’s name. More important than the evaluator’s reputation, of course, is the potential harm and embarrassment for examinees and other parties when the evaluator strays into areas that are not appropriate or fails to address various key issues—such as the specific nature of the examinee’s disability, the strengths and 51

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BEST PRACTICE Be sure to determine the specific legal questions to be answered.

limitations the examinee possesses, and the resources and capabilities of those ultimately appointed to serve in the role of guardian.

Harmonizing the Referral With Jurisdiction-Specific Statutes and Regulations There are additional opportunities for confusion when the guardianship evaluator fails to match the referring party’s specific legal questions with the appropriate legal standards of the jurisdiction in question. How do state statutes and regulations actually define “disability” or “incapacity”? Who must be consulted as a part of the evaluation? Does the legal standard provide for a multidisciplinary evaluation, and if so, how do the members of each discipline participate as a team? What is the definition of a “guardianship evaluator” in this jurisdiction? Does the guardianship evaluator possess the knowledge, skill, training, education, experience, licensure, and certification that the law requires? Does the guardianship evaluator’s report contain the necessary “terms of art” for the court to facilitate linking report contents with specific elements of a legal definition?

Determining the Proper Focus and Scope of the Evaluation As with any properly conducted mental health evaluation, guardianship proceedings require the evaluator to begin determining as early as possible how to structure the forensic investigative process and just how far to pursue that process. Who is the appropriate focus of the evaluation? Of course, the respondent is the person who will eventually be the subject of the court’s decision, and it is her disability status that the guardianship evaluator must determine; however, how relevant are the strengths and weaknesses of those persons identified as BEST potential guardians? The evaluator is not in a PRACTICE Match the specific legal position to examine these individuals cliniquestions to the relevant cally, but the court may ask for a recommenlegal standards of the dation or a comparison. The most efficient, jurisdiction.

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effective, and stress-free guardianship evaluations are those in which the relevant parties, the likely assessment measures, the appropriate depth of detail, and the boundaries of specific recommendations are identified as far in advance as feasible.

BEST PRACTICE Prepare in advance as much as possible for the guardianship evaluation.

The Role of Counsel Counsel’s Involvement in the Evaluation Whether the guardianship evaluator has been retained by counsel or has been appointed by the court, attorneys may have an important role to play in the conduct of the evaluation. For one thing, they may be in the best position to specify the legal questions and legal standards that help to define the evaluator’s role. In addition, they are often the most accessible or reliable source of information about the current location, contact information, caretakers, and general medical condition of the examinee. It may also be necessary for the lawyers to reach some sort of agreement on the circumstances of the evaluation, such as the examination date and time and any need for extending the deadline for submission of guardianship reports. Maintaining an appropriately cordial and responsive—yet unswervingly professional—rapport with attorneys for all parties will often do a great deal to facilitate the evaluation process.

The Evaluator’s Corresponding Autonomy The guardianship evaluator must take care to ensure, however, that an attorney does not stray beyond the role of facilitator into that of co-examiner or examinee surrogate. It is the evaluator who ultimately must decide what tests to use, what questions to ask, and overall how best to fulfill his obligation to the court. This issue commences at the point of retention, when the evaluator hears out the attorneys on their theories of the case while resisting the pull to alter assessment strategies to validate those theories, and continues through the composition of a report which must reflect the evaluator’s scientific opinions as opposed to counsel’s legal arguments. It is appropriate to keep attorneys apprised of the progress or

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preliminary results of an examination and to follow up on issues suggested by counsel during the course of an evaluation. The guardianship evaluator may, absent the court’s objection, choose to share a draft of the guardianship report with counsel, as long as the purpose is to make sure all relevant components have been addressed and that there is no mental health jargon that may produce an unintended legal effect.

BEWARE The attorney should act as a facilitator only, not as a co-examiner or examinee surrogate.

Scheduling the Examination Authorization Obtaining the proper authorization allows the evaluator to demonstrate to all parties that the proper channels have been navigated. Having an official document in hand—ideally, a court order—can make a considerable difference when the evaluators arrive at their destinations and must talk their way past wary nursing home administrators, concerned home-based therapists, and self-concerned live-in relatives. Such documentation is equally useful when third parties happen upon examinations already in progress—examinations that may feature earnest and highly detailed discussion of topics such as where examinees keep their money or which of various offspring are the most likely to benefit from a soon-to-bewritten will. In addition to the usual ethical and legal ramifications, producing and reviewing a court order at the beginning of an examination also has potential diagnostic utility, when it comes time to determine whether the examinee can recall this exchange at various points during the clinical and forensic interview. Finally, a court order appointing the evaluator may provide sufficient “quasijudicial immunity” to afford protection from a malpractice lawsuit (Appelbaum, 2001).

Arranging the Examinee’s Presence The examinee’s ability—or lack thereof—to set, remember, and keep appointments is often a critical issue from the outset of the guardianship evaluation. If the evaluator’s schedule is tight and the

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examinee’s scheduling abilities are in doubt, it may be a good idea to determine whether a third party is willing to act as an intermediary and ensure that the examination occurs as planned. A significant complication in this regard may be confidentiality concerns. When the examinee is not under the present and visible supervision of a caretaker, it is preferable to ask the examinee directly who might be of assistance in facilitating a future meeting, as opposed to recruiting the assistance of the examinee’s relatives or acquaintances. The guardianship evaluator is advised not to make too much clinically of a single missed appointment, because this is the sort of thing that can happen occasionally to anyone, irrespective of disability status.

Timing As with any mental health examination, guardianship evaluators will want to provide due consideration for the examinee’s availability and convenience. Examinees in this context often have elaborate schedules of medical care and treatment, and disrupting these may have an unintended effect on the validity of assessment results. Forensic evaluations of all sorts are often performed subsequent to the evaluator’s academic or other office-bound workday, which raises an additional issue: that of sundowning, a broadly described phenomenon typically attributed to patients aged 60 years (Nowak & Davis, 2007) that involves an exacerbation of behavioral symptoms in the afternoon and evening for persons with Alzheimer’s disease (Volicer, Harper, Manning, Goldstein, & Satlin, 2001). If it is necessary to perform the bulk of the evaluation during the latter part of the day, and if available medical records and consultation with caretakers indicate the possible presence of sundowning, it may be useful to schedule at least a brief follow-up examination at another time of day to confirm the likely BEWARE validity of test and interview outcomes.

Location For some examinations, the guardianship evaluator may not have the luxury of a choice of locations, particularly when timing,

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transportation, and the examinee’s acute medical condition are interfering factors. When a choice is available, there may be distinct advantages and disadvantages to conducting the examination in certain locations. THE EVALUATOR’S OFFICE On the positive side, this is familiar and convenient territory for the evaluator, allowing for tighter scheduling of other appointments. If different, unexpected assessment measures are necessary, these are readily available on-site. On the negative side, the guardianship examinee is particularly likely to be late when faced with the burden of scheduling and transportation, and comparatively less can be made of the examinee’s lack of “orientation to place” when faced with an understandably unfamiliar setting. THE ATTORNEY’S OFFICE On the positive side, it can be a refreshing benefit to allow counsel to shoulder the burden of arranging for the examinee’s presence and providing a waiting room and office venue for the examination. Counsel is also largely deprived of the opportunity to complain that the setting was inadequate. On the negative side is the prospect of counsel attempting to interfere with the examination, as well as the opposing attorney’s opportunity to assert that this may have happened. These considerations apply to both attorney-requested and court-ordered evaluations. THE EXAMINEE’S HOME On the positive side, this is an opportunity for the guardianship evaluator to see where and how the examinee actually lives. Can the examinee actually demonstrate how she would handle certain of the less physically demanding activities of daily living? When the examinee claims to possess a driver’s license or a balanced checkbook, can he produce it? The examinee’s lack of “orientation to person” is particularly compelling under these circumstances. On the negative side, the guardianship evaluator yields considerable control of the examination environment. The examination may be interrupted by curious and even aggrieved third parties. In any event, the evaluator may wish to arrange for the on-site presence at least one other

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individual, such as a noninterfering family member or health care professional. Seeking to avoid conducting examinations in isolation serves to reduce the potential for allegations of exploitation and other actionable wrongdoing. THE HOSPITAL On the positive side, this is a professional operation well inured to the comings and goings of allied health professionals on a variety of therapeutic and assessment missions, and needed documentation is likely to be handy. The examinee’s potential lack of understanding of the nature and purpose of hospitalization has considerable relevance in this setting. On the negative side, if hospitalization is for emergent or other acute reasons, this may interfere—or may be interpreted in court as interfering—with the validity of the examination, and it may be difficult for the visiting evaluator to anticipate scheduled treatments that may interfere with the assessment process. THE NURSING HOME On the positive side, this has often been a chronic and stable placement for the examinee, and performing the examination here affords an opportunity to determine the appropriateness of the examinee’s remaining in this setting for the longer term. Current caretakers are typically readily accessible and quite used to responding to questions about this sort of evaluation, and, as in the hospital setting, needed documentation is likely to be handy. On the negative side, it is often a time-consuming task to obtain clearance for recently scheduled visits from nursing home administrators, and unanticipated family visits are likely to occur that can either disrupt the timing of the examination or cause impatience and resentment on the part of the examinee when a visit is delayed. THE COURTHOUSE On the positive side, this is a technically neutral and professional setting that may have space in which the examination can be conducted, and the general presence of disinterested third parties is handy in light of liability concerns. It is also useful to provide

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examinees—and those transporting them— with an opportunity to learn just where the courthouse is and how to get to it, thus increasingly the likelihood that they will arrive on time for the hearing itself and save the evaluator and others the inconvenience of rescheduling. On the negative side, some examinees may find the formal legal setting to be an unduly intimidating one, which could be interpreted by some parties as interfering with the validity of the examination.

BEST PRACTICE Be familiar with the advantages and disadvantages of the location of the examination.

Presence of Counsel As foreshadowed by some of the earlier expressed concerns over the propriety of facilitating counsel’s involvement in the evaluation and conducting the examination at counsel’s office, there are both positive and negative aspects to having lawyers for either side present during the guardianship examination itself. It may be useful for all parties for counsel to observe at least some aspect of the examination. This practice can help to alleviate the attorney’s concern that questions are biased, slanted, suggestive, intimidating, overly complex, incomplete, or otherwise inappropriate in nature. It also may be useful to use this exercise as a way to demonstrate to counsel why examinations are conducted in a certain fashion, and which of an array of potential issues are of importance to the clinician in developing a relevant and responsive forensic mental health opinion. When explaining the legal parameters of the evaluation to those present, it is often convenient to have counsel present to lend approval and support to the guardianship evaluator’s interpretation, and perhaps to add a few additional strictly legal observations that can help all parties to fulfill their roles more effectively. The details of such participation are, of course, best worked out by counsel and the evaluator in advance. The mere presence of an examinee’s own legal representative, at least initially, is often useful—and, on occasion, even necessary—to ensure the examinee’s willing and valid participation in the forensic assessment process.

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Guardianship evaluators have good reason BEWARE Although useful to be cautious about inviting the presence of in some respects, counsel. The nature of legal representation is the presence of counsel can unduly influence inherently adversarial, and the universal stanthe examination. dard for upholding one’s role in this conflict is one of “zealous advocacy” (Spears, 2008). Even the best intentioned of lawyers may find it exceptionally difficult to refrain from “jumping in” when the examination appears to be going badly for their clients or when questions that are perfectly appropriate from a clinical perspective are the sort that would prompt an objection of “leading” in a court of law. Attorneys are as aware of this tendency toward partisanship as the nonlawyers who work with them, so they are also likely to protest if counsel for only one side is present during the examination. An additional concern is the potentially confounding effect of third-party observers, either in person or via audio or video recording—a notion that has been debated by mental health evaluators with particular vigor since the late 1990s (Horwitz & McCaffrey, 2008). The gist of this concept is that “how a person performs on certain tasks may be altered just by another person’s presence during the task, even if the observer doesn’t intentionally 4 chapter interfere with the task” (Cynkar, 2007, p. 52). Given its prominence in the recent neuropsychological and forensic psychological literature (Constantinou, Ashendorf, & McCaffrey, 2002; Gavett & McCaffrey, 2007; Lynch, 2005), this issue is increasingly likely to be understood by civil as well as criminal legal practitioners. If the positive effects of inviting counsel are seen as desirable, it may be useful to seek to confine that presence to just the introductory stages or perhaps just the interview portion of the guardianship examination.

Presence of Petitioners Unlike attorneys, guardianship petitioners—typically relatives or close friends of the examinee—are not usually steeped in a professional tradition of advocacy and conflict. They can be an invaluable resource in setting appointments; ensuring that the examinee is as

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well fed, rested, and otherwise as physically comfortable as possible for the examination; transporting the examinee to the examination; and convincing the examinee that the examination is a necessary exercise and worth the examinee’s participation. Guardianship petitioners can also bring needed medical documentation, confirm or deny some of the examinee’s assertions, suggest additional sources of collateral information, and soothe the examinee at the end of a particularly trying examination. It is during the guardianship examination itself that the petitioner’s presence may be most problematic. These persons are much less likely than attorneys to understand why certain types of questions—often highly personal and irrelevant to direct medical care— are being asked, and may at some level convey their disapproval. Petitioners may be motivated to influence the outcome of the evaluation. They may also seek to be helpful to the guardianship evaluator by seeking to rephrase, reframe, or translate test and interview questions—“what the doctor’s trying to ask is . . .” or “doctor, he doesn’t understand that, but if you ask . . .”—thus compromising the assessment with the most innocent of intentions. Irrespective of their verbal statements or their underlying motivations, petitioners are also, of course, as likely a source of potential “third-party observer” phenomena as counsel. When faced with any of these concerns, the guardianship evaluator may seek to limit the presence of petitioners to just before or just subsequent to the examination.

BEST PRACTICE Limit the presence of guardianship petitioners as appropriate to the circumstances of the evaluation.

Collateral Information Methods for obtaining collateral information are addressed in detail in Chapter 5 of this book, including a list of typical data sources— medical, nursing, educational, occupational, military, correctional, legal, and family—and their unique potential contributions to the guardianship evaluation. During the preparation stage, the evaluator can begin to determine the actual need for such information,

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the likelihood of its availability, and the best strategies for obtaining it.

Determining the Need for Collateral Information

BEST PRACTICE In seeking collateral information, consider its relevance, cumulative effect, and reliability.

RELEVANCE The mere existence of collateral information does not mean that these data are actually going to be useful in arriving at a forensic opinion and convincing the court that the opinion is sound. Although historical background is typically an important aspect of guardianship evaluations, it is no more possible than it is practical or relevant to reconstruct the examinee’s entire life story in search of the causes of her current disability status.

CUMULATIVE EFFECT Although it may be just as important in the context of interview and record review as it is in psychological testing to confirm key assertions from more than one perspective, it is neither necessary nor warranted to burden the ultimate consumers of a forensic report with the opinions of every available family member, doctor, nurse, and caretaker on precisely the same legal, medical, or psychological issues. As with relevance, the task here is one of balance and efficiency. RELIABILITY Collateral information may be considerably dated and may have passed through several hands on its way to the guardianship evaluator. It may also be tainted by the attitudes, resentments, fears, and avarice of its source. Are these sources objectively reputable and reasonably disinterested in the outcomes of court proceedings— apart from the appropriate care and treatment of the examinee? Less reliable collateral information is more appropriately disregarded when it is less relevant and more likely to be cumulative in nature.

Determining the Likely Availability of Collateral Information COURTS Considerable collateral information may already have been submitted along with—or as an embedded part of—the guardianship

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petition. When there are data that the court does not already possess, it may be willing to obtain them. Useful material may already be available within the court system as a by-product of prior criminal proceedings (including trial competency and criminal responsibility evaluations) and civil proceedings (including personal injury, child custody, and benefit entitlement evaluations). COUNSEL Counsel involved in filing a petition may possess collateral information. Counsel for the allegedly disabled person may have such material as well and may have been responsible for retaining the guardianship evaluator’s services in the first place. Concerns over “work product” protection, in which attorneys may be concerned about revealing information to the evaluator that they otherwise might shield from the court’s review (Weigand, 2008), may give attorneys pause and should be considered well in advance of the evaluation. Guardianship evaluators are advised to request all available information from counsel to avoid future allegations that they somehow colluded to bring into play only information favorable to the attorney’s client. PETITIONERS Guardianship evaluators should try to determine as early as possible whether petitioners are favorably enough disposed to the assessment process to support the objective and thorough pursuit and application of collateral information. If the information in question is sufficiently critical to the proper conduct of the guardianship evaluation and cannot be obtained reliably from any other source, it may be necessary for the evaluator—or perhaps counsel—to seek the court’s assistance to obtain it. TREATMENT PROVIDERS It often may seem as if treatment providers are programmed to retire, relocate, or go on vacation precisely when their availability as witnesses or as sources of collateral information is the most crucial. The timeline of a guardianship evaluation is often unpredictable; schedules may be difficult to coordinate; and records can take considerable time to locate, reproduce, ship, and review. It may

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be helpful in the course of a guardianship case to remind sluggish or recalcitrant data sources that a central purpose of this particular legal process is to provide their patient with an opportunity for the most appropriate ongoing care. FRIENDS AND RELATIVES These persons are often identified in the guardianship petition that initiated current proceedings. A brief telephone call is often all that the experienced forensic clinician requires to determine whether such persons are likely to be cooperative in the location and production of collateral information. The guardianship evaluator will want to ensure, when possible, that the sample of contributing friends and relatives is reasonably representative; for example, it might be counterproductive to tap only those persons who are poised to benefit from the examinee’s current will, as opposed to those who stand to be disinherited. OTHER SOURCES These typically consist of institutions—such as the military, sites of prior hospitalization, and schools. In our experience, military records take the longest to retrieve and as such should be the first on the guardianship evaluator’s list when it comes to prioritizing requests for INFO collateral information. Hospitals Possible Sources of Collateral tend to respond more quickly, Information: which is a good thing when one conl Courts siders how often these are identified in the course of an evaluation as l Counsel opposed to the period of initial prel Petitioners paration. Schools are often inaccesl Treatment Providers sible during the summer months, l Friends and Relatives and in recent years have shown a disl Military turbing tendency—probably as a byproduct of increased requests for l Hospitals production in criminal cases and civil l Schools entitlement disputes—to dispose of records after a few years.

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Developing Strategies for Obtaining Collateral Information COURT ORDERS The court order is a powerful tool for reversing a lack of cooperation on the part of various individuals, and it also definitively trumps an institution’s reliance on the Health Insurance Portability and Accountability Act (HIPAA, 1996) as a means of delaying or avoiding the production of collateral information. Along these lines, it is helpful for the order to be both general enough to cover newly identified records and specific enough to obtain records that can already be described in detail. The court may be considerably more likely to grant an order when the guardianship evaluator is in a position to point out that these data are sought not just to make the clinician’s job easier but also to provide information that will better inform the court’s ultimate determination. RELEASES The examinee’s release is another useful instrument in obtaining needed collateral information. In the eyes of some caregivers, it has the advantage of being an expression of the examinee’s will instead of that of “the system.” Similarly, when the examinee is willing and able to provide a release, this may have the benefit of promoting his involvement in the overall forensic assessment process. In some cases, counsel will be in the best position to facilitate the drafting and execution of appropriate releases. If the examinee refuses to execute a release or is incapable of doing so, then it will be necessary to resort to the device of the court order. EARLY IDENTIFICATION OF LIKELY SOURCES Although this issue has surfaced in the course of earlier passages, it deserves separate emphasis. Guardianship evaluators should attempt as soon as possible to determine what exists, what probably exists, what they need, when they need it, how likely they are to get it on their own, what assistance is most likely to produce it, and what assistance is available. Simply asserting various parties’ lack of timely cooperation is unlikely to appease a court that must restructure its

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own schedule to accommodate delays in the completion of the guardianship report.

Ethical Issues

BEST PRACTICE Identify likely sources of collateral information and the best methods to obtain it (e.g., court order, examinee’s release) as soon as possible in the examination process.

In terms of professional ethics, guardianship evaluations “must conform to the same general requirements as those pertaining to other forms of forensic examination” (Drogin, 2007, p. 560). Following is a review of ethical concerns that regularly surface in this form of court-related practice.

The Examiner’s Competency IDENTIFYING THE STANDARD In its “Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline,” the American Psychological Association (APA, 2004) recommended that psychologists “strive to understand the special ethical and/or legal issues entailed in providing services to older adults” (p. 252). With applicability to examinees of all age groups, the APA mandates in its Ethical Principles of Psychologists and Code of Conduct (“Ethics Code”; 2002) that “when assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles” (p. 1064). Similarly, according to the “Specialty Guidelines for Forensic Psychologists,” devised by the Committee on Ethical Guidelines for Forensic Psychologists (“SGFP”; 1991, currently under revision), “forensic psychologists are responsible for a fundamental and reasonable level of knowledge and understanding of the legal and professional standards that govern their participation as experts in legal proceedings” (p. 658). The guardianship evaluator who proceeds in ignorance of statutory and regulatory standards for these evaluations—such as the relevant legal definition of “disability” in this context—is not complying with the applicable ethical guidance. Adherence to the Ethics Guidelines for the Practice of Forensic Psychiatry, provided by American Academy of Psychiatry and the Law (“AAPL Guidelines”; 2005), requires psychiatrists to know “the appropriate laws of the jurisdiction” (p. 2), whereas the

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BEST PRACTICE Be knowledgeable of statutory and regulatory standards and how they apply in your particular jurisdiction.

American Psychiatric Association’s Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (“Principles of Medical Ethics”; 2009) identifies a need to understand “local laws governing medical practice” (p. 6).

ATTAINING COMPETENCY The APA Ethics Code (2002) directs psychologists to “provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based upon their education, training, supervised experience, consultation, study, or professional experience” (p. 1063). The drafters of this document may not have intended the effect of the disjunctive “or” in this standard, which in theory could, for example, support a guardianship evaluator in her decision to practice in this field after mere “study,” having avoided the other five recommended pathways to professional competency. By contrast, the SGFP (1991) flatly and inclusively asserted that “forensic psychologists provide services only in areas of psychology in which they have specialized knowledge, skill, experience, and education” (p. 658), the AAPL Guidelines state that “expertise in the practice of forensic psychiatry should be claimed only in areas of actual knowledge, skills, training, and experience” (p. 4), and the Principles of Medical Ethics (American Psychiatric Association, 2009) maintains that “a psychiatrist who regularly practices outside his or her area of professional competence should be considered unethical” (p. 5). MAINTAINING COMPETENCY As specified by the APA Ethics Code (2002), “psychologists undertake ongoing efforts to develop and maintain their competence” (p. 1064). This is particularly salient for clinicians continuing to practice in the arena of guardianship assessment, given ongoing statutory reforms and practice innovations sparked by the recent development of such guild-sanctioned resources as Assessment of Older Adults with Diminished Capacity (American Bar Association

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Commission on Law and Aging & BEST American Psychological Association, PRACTICE Attain and maintain 2005), Judicial Determination of Capacity professional competency in of Older Adults in Guardianship the areas in which you conduct Proceedings (American Bar Association evaluations. Commission on Law and Aging, American Psychological Association, & National College of Probate Judges, 2006), and Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists (American Bar Association Commission on Law and Aging & American Psychological Association, 2008). Compliance with the AAPL Guidelines (2005) requires psychiatrists to maintain an ongoing dedication to “special training” (p. 4), and the Principles of Medical Ethics (2009) confirm that “psychiatrists are responsible for their own continuing education and should be mindful of the fact that theirs must be a lifetime of learning” (p. 8).

Consent Versus Assent The notion of informed consent is a complicated one when the guardianship evaluator contemplates providing services to persons whose very ability to provide such consent is an anticipated focus of the pending forensic examination. Such situations are anticipated by the APA Ethics Code (2002), which provides an exception when “one purpose of the testing is to evaluate decisional capacity,” while at the same time mandating that “psychologists inform persons with questionable capacity to consent . . . about the nature and purpose of the proposed assessment services, using language that is reasonably understandable to the person being assessed” (p. 1071). Somewhat confusingly, this document also addresses the issue more generally in another passage, stating that “for persons who are legally incapable of giving informed consent,” psychologists should “provide an appropriate explanation,” “seek the individual’s assent,” “consider such persons’ preferences and best interests,” “obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law,” and “when such consent by a legally authorized person is not permitted

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or required by law . . . take reasonable steps to protect the individual’s rights and welfare” (p. 1065). According to the SGFP (1991), absent a court order, “in situations where the client or party may not have the capacity to provide informed consent to services or the evaluation is pursuant to court order, the forensic psychologist provides reasonable notice to the client’s legal representative of the nature of the anticipated forensic service before proceeding,” and if “the client’s legal representative objects to the evaluation, the forensic psychologist notifies the court issuing the order and responds as directed” (p. 659). The AAPL Guidelines (2005) state that “at the outset of a face-to-face evaluation, notice should be given” of “the nature and purpose of the evaluation and the limits of its confidentiality,” and although they distinguish between “consent” and “assent,” they indicate that “in particular situations, such as court-ordered evaluations for competency to stand trial or involuntary commitment,” neither is required (p. 2). According to the Principles of Medical Ethics (2009), forensic evaluations require that psychiatrists “fully describe the nature and purpose and lack of confidentiality of the examination to the examinee at the beginning of the examination” (p. 7).

BEST PRACTICE Inform the examinee of the nature and purpose of the examination per ethical guidelines.

Confidentiality As noted earlier in this chapter, the guardianship evaluator should take care, when arranging for the examinee’s presence during the examination, to avoid unduly disclosing the specific nature of the evaluation to third parties. This is an exceptionally delicate undertaking and one that might be addressed by obtaining a court order specifically directing the evaluator to contact any of a number of persons or institutions for the purpose of facilitating the guardianship evaluation. As a general matter, the APA Ethics Code (2002) provides an arguable exception along these lines when it states that “psychologists disclose confidential information without the

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consent of the individual only as mandated by BEST law, or where permitted by law for a valid PRACTICE purpose such as to . . . provide needed profesMaintain confidentiality of information irrelevant to the sional services” (p. 1066). The SGFP (1991) examination’s purpose to the maintains that “in situations where the right extent possible. of the client or party to confidentiality is limited, the forensic psychologist makes every effort to maintain confidentiality with regard to any information that does not bear directly upon the legal purpose of the evaluation” (p. 660). According to the AAPL Guidelines (2005), psychiatrists are charged with maintaining confidentiality “to the extent possible, given the legal context” (p. 1). The Principles of Medical Ethics (2009) adds that “in the event that the necessity for legal disclosure is demonstrated by the court, the psychiatrist may request the right of disclosure of only that information which is relevant to the legal question at hand” (p. 7) and “may disclose only that information which is relevant to a given situation” (p. 6).

Treatment Versus Evaluation Particularly given the likelihood that they have impaired capacity to understand such distinctions, guardianship examinees should be informed quite clearly that the evaluator has not come to provide treatment but will be conducting an evaluation that could result in a significant loss of legal status. Such information is conveyed during the usual informed consent—or assent—component of the examination. The notion that psychologists and psychiatrists should provide a given person with either treatment or evaluations—but not both—is one that has gained increasing traction in the professional literature since the late 1990s (Bush, Connell, & Denney, 2006; Goldstein, 2003; Greenberg & Shuman, 1997; Gutheil, 1998; G. L. Iverson, 2000; Knapp & VandeCreek, 2003; Shuman, Greenberg, Heilbrun, & Foote, 1998; Strasburger, Gutheil, & Brodsky, 1997; Wettstein, 2001). Hornsby, Drogin, and Barrett (1997) maintained that: Simply put, there is a danger that when you provide treatment after a forensic evaluation, you have already committed yourself to an opinion which may color the goals and progress of treatment,

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and a judge or jury may find your motivations suspect. When you provide a forensic evaluation after treatment or standard clinical assessment, you may undermine the validity and persuasiveness of your opinion, because a judge or jury may feel you have an interest in remaining consistent with conclusions you have already reached in a psychological report or progress notes. (p. 8)

The APA Ethics Code (2002) defines a “multiple relationship” as including “when a psychologist is in a professional role with a person and . . . at the same time is another role with the same person,” and asserts that “a psychologist refrains from entering into a multiple relationship if [it] could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness” or “otherwise risks exploitation or harm to the person with whom the professional relationship exists,” with one exception being “when psychologists are required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings” (p. 1065). According to the SGFP (1991), “forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship,” with an understanding that “when it is necessary to provide both evaluation and treatment services to a party in a legal proceeding (as may be the case in small forensic hospital settings or small communities), the forensic psychologist takes reasonable steps to minimize,” what are characterized as “potential negative effects” on “the rights of the party, confidentiality, and the process of treatment and evaluation” (p. 659). The AAPL Guidelines (2005) state that “treating psychiatrists” should “generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purpose” (p. 3), although “when requirements of geography or related constrains dictate the conduct of a forensic evaluation by a treating psychiatrist, the dual role may be unavailable; otherwise, referral to another evaluator is preferable” (p. 4). When attempting to adhere to these standards and guidelines, guardianship evaluators will need to ask themselves whether it is truly

Preparation for the Evaluation 71 BEWARE “necessary” to serve as both the examinee’s evaActing as both luator and treating doctor, whether this is actually examiner and “required” by various qualifying circumstances,” treatment provider may lead to a conflict of interest. and whether they can honestly assert that this would neither impair their “objectivity, competence, or effectiveness” nor constitute any risk of “exploitation or harm.” Is the evaluator in question really the only person in a position to conduct this evaluation?

Record Keeping As a general matter, guardianship evaluators should be aware of the APA’s recently revised Record Keeping Guidelines (“RKG”; 2007), the language of which may complicate efforts to determine just how long they must keep files from these examinations. The RKG states that “psychologists may consider retaining full records until 7 years after the last date of service delivery for adults,” adding that “the psychologist may wish to keep records for a longer period, weighing the risks associated with obsolete or outdated information, or privacy loss, versus the potential benefits associated with preserving the records” (p. 999). This is a rather different matter than the advice contained in the previous version of this document (APA, 1993) that in the absence of superseding law, “complete records are 4 chapter maintained for a minimum of 3 years after the last contact with the client,” and that “records, or a summary, are then maintained for an additional 12 years for disposal” (p. 985). The APA Ethics Code (2002) declines to state a specific duration for record retention, but it does note that one goal of maintaining records is to “ensure compliance with the law” (p. 1067), while the SGFP (1991) speak more generally to “an obligation to document and be prepared to make available . . . all data that form the basis for their evidence and services” (p. 661). However guardianship evaluators construe their duty to maintain forensic records, they are well advised to (1) check carefully to determine what statues and regulations may address this issue; and (2) devise and adhere BEST PRACTICE to a well-reasoned plan for retention in light of Develop a practical plan for all commonly available sources of ethical guirecord-keeping that follows legal and ethical standards. dance. The Principles of Medical Ethics

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BEST PRACTICE Take test security into account when (1) writing reports, (2) testifying about psychological test results in open court, and (3) determining whether thirdparty observers are necessary or warranted during the psychological testing phase of a given examination.

(2009) broadly indicate that psychiatric records “must be protected with extreme care” (p. 6).

Test Security

An ethical corollary to the “third-party observers” issue mentioned earlier is the guardianship evaluator’s obligation to “make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques” (APA Ethics Code, 2002, p. 1072). This is echoed by the SGFP (2002) assertion that when evaluators are “required” to disclose test results to persons who are not psychologists, “every attempt is made to ensure that test security is maintained and access to information is restricted to individuals with a legitimate and professional interest in the data” (p. 664).

Board Certification When it comes to identifying the appropriate evaluator to participate in guardianship evaluations, lawyers are increasingly likely to recognize that “the most important criterion is the clinician’s experience and knowledge in the assessment of older adults” and that “relevant medical boarded specialties include geriatric medicine, psychiatry, neurology, geriatric psychiatry, and forensic psychiatry,” whereas “in psychology, there is increasing specialization although the boarding process has not been as important as in medicine” (American Bar Association Commission on Aging and the American Psychological Association, 2005, p. 32). Within the field of psychology, board certification is not widely sought as a demonstration of specialized expertise. As Dattilio (2002) has observed: Surprisingly, the number of individual psychologists seeking board certification has remained disappointingly low. According to statistics provided by the American Board of Professional Psychology (ABPP), only 3,303 psychologists in the United States and Canada are currently board certified—that is, only a

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small fraction of the psychologists who are currently licensed to practice. For example, on the basis of statistics reported in 2000 by ASPPB, the estimated number of licensed psychologists in the United States and Canada is 101,518. If we compare this number to the reported number of those who were certified in 2000 by the ABPP (3,303), this equates to less than 3.5%. (p. 55)

Relevant board certification can be one determinant to assist attorneys in sorting through the comparative qualifications of prospective evaluators. Certification by a well-recognized and reputable institution may help to ensure that a given mental health professional has satisfied threshold criteria for competence in conducting specialized assessments for the courts.

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Interviewing The Examinee General Domains of Inquiry It is not sufficient in any forensic context, including guardianship evaluations, simply to conduct a general clinical examination and then loosely apply those results to the various components of a properly crafted referral question. Drogin and Barrett (2003) identified the following general domains of inquiry for guardianship assessment that evaluators can combine with an age-appropriate clinical interview: IDENTIFYING INFORMATION Identifying information can include such elements as the examinee’s full name, age, date of birth, place of birth, address (including street address, city, county, state, and country of residence), zip code, area code, telephone number, fax number, and e-mail address. Such data are important not only for the guardianship report itself but also to determine whether the examinee is actually aware of this information on her own. ORIENTATION In addition to personal aspects of the foregoing identifying information, is the examinee aware of his current location (in terms of street address, city, county, state, and country) and the current year, season, month, day of the week, and approximate hour? How long has the examinee been in this location? How did the examinee come to this location? Is it a hospital, nursing home, group home, private residence, or professional office? 75

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Table 5.1

General Domains of Inquiry for Guardianship Assessment

1. Identifying Information 2. Orientation 3. Education 4. Finances 5. Self-Care 6. Social Contact and Leisure Pursuits 7. Testamentary Capacity 8. Medical Care 9. Driving an Automobile 10. Voting 11. Behavioral Response 12. Review of Examination Circumstances Adapted from Drogin & Barrett, 2003.

EDUCATION This is a form of information that can be as important for its actual content as for the examinee’s ability to recall it. As described later in this chapter, academic achievement is a critical factor in establishing a cognitive baseline for guardianship assessment. Does the examinee recall where he attended nursery school, grammar school, junior high school, high school, or college? What were the various dates of attendance? How well did the examinee perform, and what were his favorite subjects? Did this education form the basis of a subsequent career?

FINANCES What is the examinee’s current weekly, monthly, or annual income? What is the source of and basis for that income? How is it delivered, and what financial institutions are involved? Is the examinee currently receiving the assistance of a curator or other payee? How was

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this arrangement developed and instituted? What are the examinee’s current weekly, monthly, or annual expenses? How are these paid, when, and to whom? What are the approximate typical costs of various standard items? What are the examinee’s assets and future financial prospects? How would he cope with various hypothetical adjustments to either income or expenses? SELF-CARE What are the examinee’s current, prior, and anticipated resources for self-care? How confident is the examinee in her ability to provide for self-care on an individual basis? What is the status of the examinee’s current residence, mode of dress, and personal hygiene? How would the examinee dress, arrange for transportation, and otherwise contend with such weather conditions as a blizzard, heavy rain, or a record heat wave? How would the examinee respond to such hypothetical emergent situations as a fire in the home, a flood, or a viral epidemic? How many meals does the examinee eat per day, who prepares them, how are they prepared, what do they contain, and when are they consumed? SOCIAL CONTACT AND LEISURE PURSUITS This is an often overlooked aspect of the examinee’s day-to-day life, because it typically does not address core aspects of the guardianship scheme unless specified by statute, regulations, case law, or court order. Nonetheless, such aspects are frequently relevant to a full understanding of the examinee’s existence and, in particular, the resources at his disposal in the event of emergent circumstances. Along these lines, is the examinee capable of identifying the persons with whom he associates? How does the examinee tend to spend his spare time? TESTAMENTARY CAPACITY When the applicable statute or court order calls for assessment of this construct, does the examinee understand what it means to make a will? Has she done so? How might this be accomplished? What sort of real estate, funds, interests, and other possessions would be involved? Does the examinee have any sort of plan for distributing these assets? Who are the persons that would normally

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be expected to benefit from the examinee’s will? How many of these persons are still living, and where are they located? What sort of relationships, if any, does the examinee still maintain with these individuals? Is there anyone currently seeking to be named in the examinee’s will? Has that person threatened or made promises to the examinee? After a will has been duly executed, when does it take effect? MEDICAL CARE What is the examinee’s medical history, including hospitalizations, operations, childbirth, and acute and chronic physical and psychiatric conditions? How does the examinee characterize her current health status? From whom is she receiving medical or nursing care? Is this care delivered in the examinee’s current place of residence? If not, where must the examinee go in order to receive this care? How often? When was the examinee’s last medical, nursing, dental, or other appointment? When is the next one scheduled? How would the examinee handle the onset of various forms of life-threatening or non-life-threatening illness? Is the examinee currently taking medication? If so, what is it, what does it do, what contraindications are noted, and how often is it taken? Does the examinee have medical insurance? If so, what sort of coverage does it provide? DRIVING AN AUTOMOBILE Appelbaum and Gutheil (2007) stressed the commonsense and liability-attuned wisdom of “leaving driving assessment to motor vehicle agencies” (p. 154). Some states, however, list driving an automobile as a specific area of competency for the guardianship report to address. Under these circumstances, it is reasonable for the evaluator to seek and convey information that informs this issue, while stopping short of rendering a bottom-line, ultimate issue opinion on the examinee’s ability to drive. When the applicable statute or court order calls for assessment of this construct, does the examinee have access to a motor vehicle? Does the examinee possess a current driver’s license? Can the examinee produce that license and describe when and how it should be renewed? Can the

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examinee identify and explain various signs, road markings, and common rules of the road, as listed in the relevant jurisdiction’s current driver’s licensing manual? VOTING When the applicable statute or court order calls for assessment of this construct, does the examinee understand the significance of voting? Is the examinee aware of the identities of the current president, vice president, senators, congresspersons, mayors, or selectpersons? Does the examinee recall the last time he voted? Is the examinee currently registered to vote, and if not, does he know how one would go about becoming registered? Does the examinee know when elections are usually held and where voting typically occurs? BEHAVIORAL RESPONSE This category includes items typical of the standard mental status examination and some executive functioning measures. Although nonphysician evaluators are unlikely to request that an examinee engage in arduous or complex physical activities, such behaviors as touching one’s nose, sticking out one’s tongue, clapping one’s hands, or tapping the examination table a certain number of times may have functional assessment value in, for example, cases of advanced dementia or significant developmental delay. This is particularly true for examinations in which the examinee has proven incapable of proceeding or unwilling to participate in such lengthier intelligence tests or dementia rating scales that have behavioral aspects, such as manipulating blocks, puzzle pieces, and writing utensils. REVIEW OF EXAMINATION CIRCUMSTANCES After the forensic evaluator has instituted the necessary and appropriate informed consent procedures—to the best of the examinee’s ability to participate—and conducted the bulk of the guardianship examination, does the examinee recall the evaluator’s name, profession, place of work, and purpose for visiting? Can the examinee recount any significant aspects of the examination, such as questions asked, responses given, or specific abilities investigated? Has the

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COGNITIVE SIGNS

EMOTIONAL SIGNS

BEHAVIORAL SIGNS

Short-Term Memory Loss

Significant Emotional Distress

Delusions

Communication Problems

Emotional Lability or Inappropriateness

Poor Grooming or Hygiene

Hallucinations

Comprehension Problems Lack of Mental Flexibility Calculation Problems Disorientation

Figure 5.1

Signs of Possible Incapacity

Adapted from the American Bar Association Commission on Law and Aging and the American Psychological Association, 2005, pp.14–16.

examinee already requested this information on one or more occasions during the course of the examination? How does the examinee fare when told the answer, asked to memorize the answer, and informed that the answer will be requested again at some point during the next few minutes? Although domain-driven approaches are helpful, this is certainly not to suggest that guardianship evaluators should ignore typical signposts of psychological disturbance that arise in the context of clinical and forensic interviews. The following list of “cognitive,” “emotional,” and “behavioral signs of incapacity” was compiled by the American Bar Association Commission on Law and Aging and the American Psychological Association (2005, pp. 14–16), annotated with considerations relative to guardianship assessment (Figure 5.1).

Cognitive Signs SHORT-TERM MEMORY LOSS Does the examinee appear to have forgotten certain statements that she made just recently, or inquiries made by the examiner only moments earlier? Perhaps the examinee has lost the thread of the current conversation altogether but confabulates to prevent detection. These symptoms may reflect either dementia or delirium.

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COMMUNICATION PROBLEMS The examinee may find it difficult to express either simple or complex thoughts, with long pauses, problems finding specific words, and impaired articulation. Reticence may also be a result of insufficient introduction to the evaluative task at hand, reflecting confusion, suspicion, or perhaps outright paranoia. COMPREHENSION PROBLEMS Comprehension may be hampered by deficits in vision and hearing, as a result of which the examinee simply cannot see or hear. He may also be experiencing visual or auditory hallucinations or distraction due to the interference of chronic pain symptoms. Has the evaluator determined that inquiries are being conducted in the examinee’s primary language? LACK OF MENTAL FLEXIBILITY Some examinees manage to “cover” for encroaching signs of disability, the significance of which they may or may not have grasped. Part of this strategy can involve controlling their environment—and conversational topics—by simplifying them as much as possible. Open-ended inquiries are useful in identifying a disguised lack of mental flexibility. CALCULATION PROBLEMS Rather than asking an examinee to perform sums to display academic attainment or financial acumen, the evaluator can inquire into the distances between certain milestone dates, how old the examinee will be in a given number of years, and so forth. When did the examinee fall asleep the previous evening, when did she awaken, and how many hours of sleep does this reflect? DISORIENTATION Distinct from the direct questioning typical of a formally structured mental status examination, is the examinee referring to his current surroundings in a fashion that suggests a lack of orientation to place? Does a discussion of current activities and necessary outerwear indicate that the examinee does not know the current season? Can the examinee describe when meals either recently did or should

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soon occur? Interview comments may convey a sense of depersonalization.

Emotional Signs SIGNIFICANT EMOTIONAL DISTRESS An examinee may appear distraught to an extent seemingly inappropriate to her immediate circumstances. Guardianship evaluations are often conducted in the wake of significant personal losses, or in surroundings painfully devoid of the comfort of friends or family; however, excessive displays of grief may indicate the interference of an undetected or untreated affective disorder. EMOTIONAL LABILITY OR INAPPROPRIATENESS Distinct from the degree of emotional distress is the frequency and speed with which the examinee transitions from one affective state to another, perhaps without apparent cause, and perhaps in a fashion inappropriate to surroundings or precipitating remarks. Has the evaluator ruled out the possibility of acute intoxication?

Behavioral Signs DELUSIONS Does the examinee insist that he is experiencing perceptions, events, or relationships that, although technically plausible, are clearly not supported by his actual situation and circle of contacts? Determining the presence or absence of delusions is immeasurably aided by the availability of a properly derived social history, consultation with knowledgeable caretakers, and ample supporting documentation. HALLUCINATIONS The examinee may report currently experiencing various forms of auditory, visual, tactile, olfactory, or gustatory hallucinations, or otherwise may be observed to be “responding to internal stimuli” (Freeman, Levy, & Gorman, 2007, p. 120). Such symptoms, when present, are typically incidental in nature. As a result, this may be a situation calling for a follow-up visit to gain a sense of how the examinee responds when not actively hallucinating.

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POOR GROOMING OR HYGIENE Such deficits in presentation may reflect an inability to provide for self-care, or a disinclination to do so. Both circumstances are relevant to guardianship determinations and thus merit further inquiry. It may also be the case that the examinee has contracted for—or has been consigned to—inadequate residential or in-home nursing care, a situation all the more significant if the caregiver in question is considered a candidate for the role of guardian.

Obtaining Collateral Information Heilbrun, Warren, and Picarello (2003) described an exceptionally detailed scheme for obtaining, collecting, applying, and communicating collateral information. Their emphasis on “the importance of broadening the scope of the evaluation beyond the individual and his or her self-report” (p. 70) is particularly well placed in the context of guardianship evaluations, because examinees may be exceptionally poor historians, with an understandable tendency to minimize various manifestations of medical or psychological disability. According to Otto, Slobogin, and Greenburg (2007), collateral information is useful because “forensic examinees may be deliberately or inadvertently less than candid in their presentation,” “even the candid examinee will usually not be aware of all legally relevant information,” “information from third parties is necessary for administration of a number of forensically relevant instruments,” (italics added; see key terms) and “information from collateral sources enhances the face validity of the examination and the competence of the expert in the eyes of the legal decision maker” (p. 191).

Sources of Collateral Information Following are some typical sources of collateral information, with particular relevance to the sort of data forensic clinicians need to compile a thoroughgoing, responsive, and sufficiently detailed guardianship report. MEDICAL Guardianship respondents are more likely than almost any other class of examinee to have substantial and forensically relevant medical

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histories. Some observed conditions may be the result of mediTypical Sources of Collateral cation interactions that will be Information: documented in a combination 1. Medical of such records—obtainable 2. Nursing and Related from different sources that occaCare sionally are unaware even of each other’s existence. Also, it is 3. Educational necessary to develop a familiarity 4. Occupational with the medical history, health 5. Military status, and treatment options 6. Correctional before presuming to judge the 7. Legal and Forensic examinee’s grasp of such issues. Given frequently encountered 8. Friends and Relatives Health Insurance Portability and Accountability Act (1996) barriers to ready access, it may be helpful to be armed with a judge’s order as soon in the assessment process as possible. INFO

NURSING AND RELATED CARE Persons providing nursing and related care services to examinees may have the most current, professionally maintained documentation and the most well-informed personal insights into problematic conditions and relevant capabilities. These are often the persons who will continue to provide care to the examinee subsequent to a finding of full or partial disability; in this situation, the evaluator will obtain an added opportunity to consider the suitability of these individuals as potential ongoing providers. Such professionals are also a likely repository of additional medical records that the evaluator may find it difficult to obtain on her own, as well as a central source of contact information for physicians, social workers, family members, and acquaintances. EDUCATIONAL Educational records provide a baseline for comparing current intelligence testing and academic achievement scores. What

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would seem like a significant decline in functioning for a well and successfully educated individual may constitute predictable results for persons with chronic literacy problems and other long-standing learning disabilities. Conversely, these records may also identify as problematic what might otherwise seem like normal functioning, except for the examinee’s outstanding collegiate record or history of graduate professional training. On occasion—particularly in cases in which the examinee is a young adult as opposed to an older person with dementia— there may still be teachers who remember the examinee and can provide additional relevant observations. OCCUPATIONAL Documents and collateral contacts from current and former places of work may include performance reviews, records of promotion and demotion, and other employment milestones that can shed further light on an examinee’s prior functional abilities. Preserved job applications are likely to include some indication of medical history and then-current conditions. In particular, there may be documentation of work-related illness, chronic absenteeism (for illness, feigned illness, or other reasons), and treatment sources that might not surface in any other context. Former supervisors, supervisees, and coworkers will have a detailed and relevant perspective on the examinee that may not be reflected in the comments of friends, family members, and treatment providers.

5

MILITARY This is a source of information often overlooked by examiners functioning in all modes of forensic evaluation; perhaps, in some cases, because of the exceptional amount of time it may take to obtain these records from government sources. Such data may, however, be well worth the wait. A military record is typically to the point, objective on its face, and likely to be credited as a reputable accounting by lawyers, judges, and jurors alike. It also tracks important events in an examinee’s life, the failed recollection of which can provide additional insight potential into long-term memory deficits. Reminiscences from fellow veterans provide

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another avenue for gaining a fresh perspective on the examinee’s personality and experiences. CORRECTIONAL Records from this source are often exhaustively detailed, with considerable emphasis on medical and psychological issues that were documented from the point of intake into the correctional system. Parole board proceedings and related supplements may focus on the examinee’s psychiatric status. If the examinee was involved in a determinate sentencing program—such as those designed to address anger management or sexual offender recidivism—then additional testing and academically oriented homework assignments may be available. Some inmates also enroll in and complete General Equivalency Diploma programs while in prison. Correctional documentation may also indicate who represented the examinee legally, thus providing the examiner with a conduit to additional records. LEGAL AND FORENSIC Civil and criminal proceedings are often accompanied by forensic psychiatric and psychological reports and correspondence. If the examinee has been divorced, there may have been a dispute over child custody leading to testing and interview of various family members—including now-current candidates for the role of guardian—and if the examinee was ever a plaintiff in a personal injury lawsuit, there may have been multiple medical and neuropsychological workups over a period of years. Criminal forensic evaluations may have covered a broad number of topics, including competency to stand trial, criminal responsibility, mitigation, and anticipated appropriateness for determinate sentencing programs. FRIENDS AND RELATIVES No one knows examinees in quite the same way as those who married, divorced, raised, were raised by, grew up with, or otherwise lived or associated with them in the real world. Although data from these sources are by no means a substitute for psychological testing, clinical interview, and a review of professional

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documentation, exploring the interactive human element of the examinee’s life can lend a fresh and meaningful perspective on his existence as a whole person. Friends and relatives—some of whom may have been an examinee’s direct caretakers in the past—can often fill in many of the gaps in a social history, including the names and locations of doctors, teachers, and institutions not identifiable by any other means.

Psychological Testing Most guardianship examinees will be older persons. According to the American Psychological Association’s “Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline” (1998), psychologists should remain aware that “standardized psychological and neuropsychological tests are important tools” for assessment in guardianship and other contexts, and that the use of psychometric instruments may represent the most important and unique contribution of psychologists . . . Tests used by psychologists should be standardized, reliable, valid, and have normative data directly referable to the older population. Discriminant, convergent, and ecological validity should be considered in selecting tests. There are many tests and approaches that are useful for these evaluations. (p. 1301)

More recently, the American Psychological Association published “Guidelines for Psychological Practice with Older Adults” (2004) that offer additional advice for evaluators, including the need to remain “familiar with the theory, research, and practice of various methods of assessment with older adults, and knowledgeable of assessment instruments that are psychometrically suitable for use with them,” to “understand the problems of using assessment instruments created for younger individuals when assessing older adults, and to develop skill in tailoring assessments to accommodate older adults’ specific characteristics and contexts,” and to “develop skill at recognizing cognitive changes in older adults, and in conducting and interpreting cognitive screening and functional ability evaluations” (p. 237).

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Of course, not every individual referred for guardianship assessment is an older person. Following are more general forms of testing, broadly applicable to persons across the adult developmental span when cognitive and personality attributes are at issue.

Cognitive Testing INTELLIGENCE TESTING The “industry standard” for this form of testing is the Wechsler Adult Intelligence Scale, now in its fourth edition (WAIS-IV; Wechsler, 2008). At the time of initial publication of this book, available research on the latest version will be relatively minimal, but this instrument comes with a rich history of applied scholarship (Larrabee, 2004) and substantial similarity to early iterations. One rather disappointing development is that, similar to the Wechsler Intelligence Scale for Children (WISC-IV; Wechsler, 2003), the authors have done away with the Verbal and Performance IQ distinctions so laboriously conveyed to judges over the past several decades. For cases in which WAIS-IV administration is inconvenient and in which seemingly normal intelligence is either to be confirmed or ruled out, evaluators may wish, where appropriate, to use a briefer measure such as the Shipley-2 (Shipley, Gruber, Martin, & Klein, 2009) or the Wechsler Abbreviated Scale of Intelligence (WASI; Wechsler, 1999). NEUROPSYCHOLOGICAL TESTING There is typically minimal call (and often minimal funding) in guardianship contexts for full-blown, day-long Halstead–Reitan (Horton, 2008) or Luria–Nebraska (Golden, 2004) batteries, but similarly indepth neuropsychological testing INFO is certainly not without preceSome Types of Cognitive Testing dent in these cases (Marion, 1. Intelligence Testing 1997). Forensically appropriate 2. Neuropsychological and less arduous screening meaTesting sures—within their situation3. Academic Testing specific limits—include the Cognitive Capacity Screening

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Examination (Anderson, Burton, Parker, & Gooding, 2001), the Mini-Mental State Examination (Shiroky, Schipper, Bergman, & Certkow, 2007), and the Trail Making Test (Ashendorf et al., 2008).

INFO Some Types of Personality Testing: 1.

Testing for Affective Conditions

2.

Testing for Delusions and Psychosis

3.

Testing for Addictions

ACADEMIC TESTING 4. Testing for Other Sources Such measures are useful when evaof Disability luators need to contrast the examinee’s documented academic achievement with currently displayed capabilities. The Wide Range Achievement Test, now in its fourth edition (WRAT-4), provides a convenient overview of word reading, spelling, sentence comprehension, and math computation, with age norms as well as grade norms (American Psychological Association Division 5, 2007). The additional component of oral vocabulary can be addressed with the Peabody Picture Vocabulary Test, now in its fourth edition (PPVT4), as a way of identifying language competency in the absence of written words (Powell, Plamondon, & Retzlaff, 2002). More recently, the Wechsler Individual Achievement Test, now in its second edition (WIATII), combines all of these elements in a single battery, with research linkage to other Wechsler measures (Lichtenberger & Smith, 2005).

Personality Testing TESTING FOR AFFECTIVE CONDITIONS Although other, broader personality measures will typically include scales for such conditions, there are freestanding screening tests for depression and anxiety that address these issues, often specifying symptom time frames to enable greater diagnostic accuracy. These measures include the Beck Depression Inventory, now in its second edition (BDI-II; Cohen, 2008), the Beck Hopelessness Scale (McMillan, Gilbody, Beresford, & Neilly, 2007), the Beck Anxiety Inventory (Leyfer, Ruberg, & Woodruff-Borden, 2006),

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the Hamilton Depression Rating Scale (Furukawa, Toshi, Akechi, Azuma, Okyama, & Higuchi, 2007), and the State–Trait Anxiety Inventory (Barnes, Harp, & Jung, 2002). When the examinee is older or subject to chronic pain, guardianship evaluators will want to take these circumstances into account when interpreting scaled scores.

TESTING FOR DELUSIONS AND PSYCHOSIS For several decades, standardized personality testing measures have included scales specifically designed to identify the presence of delusions and psychosis. These instruments include the Minnesota Multiphasic Personality Inventory, now in its second edition (MMPI-2; Bagby et al., 2005), the Millon Clinical Multiaxial Inventory, now in its third edition (MCMI-III; Craig, 2005b), and the Personality Assessment Inventory (PAI; Mozley, Miller, Weathers, Beckham, & Feldman, 2005). Reading level is always a consideration in the choice, administration, and interpretation of such tests (Schinka & Borum, 1993), and the Brief Psychiatric Rating Scale (BPRS; Ownby & Seibel, 1994) may prove a useful alternative. Evaluators will want to take special care to ensure that scale elevations that could indicate either dementia or such disorders as schizophrenia and schizoaffective disorder are subjected to the appropriate differential diagnostic analysis.

TESTING FOR ADDICTIONS The standardized personality test measures described previously also have embedded scales for the detection of various addictive disorders, including the MAC-R scale as found in the MMPI-2 (Craig, 2005a), scales T and B as found in the MCMI-III (Craig, 1997), and Drug Problems scale as found in the PAI (Kellogg et al., 2002; Morey & Quigley, 2002). In addition, there exist numerous briefer screening instruments—each with their adherents and detractors—that are primarily or substantially devoted to this purpose, including the Substance Abuse Subtle Screening Inventory, now in its third edition (SASSI-3; Feldstein & Miller, 2007), the

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Michigan Alcoholism Screening Test, or MAST (Shields, Howell, Potter, & Weiss, 2007), and the South Oaks Gambling Survey, now SOGS-R (Wiebe & Cox, 2005).

BEWARE Secondary conditions may exacerbate a primary diagnosis.

TESTING FOR OTHER SOURCES OF DISABILITY Although depression, psychosis, and addictive disorders are wellrecognized sources of mental health-related disability measured by personality testing, they are by no means the only ones. As in any forensic evaluative context (Craig, 2005c), identifying and differentiating various personality disorders may play an important part in the understanding of a guardianship examinee’s clinical presentation and, of particular relevance, her ability to interact effectively with caregivers, relatives, business associates, vendors, and other individuals. It would be a mistake for guardianship evaluators to focus solely on conditions that would function as an independent cause of disability while ignoring those that serve to exacerbate a primary diagnosis. PROJECTIVE VERSUS OBJECTIVE MEASURES The research literature has long reflected differing perspectives on the use of projective psychological testing in forensic evaluations (Garb, Wood, Lilienfeld, & Nezworski, 2002; McCann, 2004). In guardianship evaluations, the incentive to employ projective measures often stems from the enfeebled state of an older examinee incapable of completing—or disinclined to begin endorsing—an objective measure comprising hundreds of separate written items. Other decisional factors may include the examinee’s visual acuity, reading level, and limited institutional availability. Evaluators wishing to employ projective measures in this context should consider the research-supported and evidence-based appropriateness of the test in question for this particular application and the fact finder’s likely receptiveness to such techniques.

Forensic Testing Some measures directly address specifically forensic elements of an examinee’s status, as opposed to identifying purely clinical

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BEST PRACTICE Consider the appropriateness of projective measures for a specific case and be ready to present the relevant research to the fact finder.

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diagnostic criteria and more generalized aspects of cognitive functioning. Several summary reviews of such forensic assessment instruments (FAIs) are available, the most prominent and comprehensive of which are those by Grisso (2003) and Moye (2003). The American Bar Association and the American Psychological Association (2005) devised a list of “more recently developed” measures for use “when capacity or competency is specifically in question” (pp. 62–67). The primary reference for each measure is listed in the Tests and Specialized Tools section at the back of this volume. We have augmented this list with updated references germane to the use of these measures in the specific context of guardianship assessment as follows. COMMUNITY COMPETENCY SCALE The Community Competency Scale (CCS) requires examinees to answer questions about and also to demonstrate their mastery of a range of daily living skills (Searight & Goldberg, 1991). One valuable component of the CCS is its inclusion of “a small section on money management” (Hoskin, Jackson, & Crowe, 2005, p. 357). Test items address such issues as how to ensure a proper diet, how to go about maintaining a household, and how to utilize public transportation (Searight, Oliver, & Grisso, 1983). MULTIDIMENSIONAL FUNCTIONAL ASSESSMENT QUESTIONNAIRE Focusing on an examinee’s knowledge of resource utilization as well as personal functioning, the Multidimensional Functional Assessment Questionnaire (MFAQ) has been featured in research on the physical health perspectives of thousands of elderly persons (Whitelaw & Liang, 1991) and has also been adapted for forensic use with Spanish-speaking examinees (Santisteban & Szapocznik, 1981). Test items address such issues as meal preparation, extent of social interactions, and the identification of significant impairments (Grisso, 2003). DIRECT ASSESSMENT OF FUNCTIONAL STATUS The Direct Assessment of Functional Status (DAFS) gauges the functional status of an examinee diagnosed—formally or

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preliminarily—with Alzheimer’s disease or some other form of dementia (Mariani, 2004). This measure addresses “specific tasks of daily living” (Willis, 1996, p. 113) by requiring “actual demonstration of abilities . . . such as performing grooming functions, remembering items on a grocery list, and identifying street and roadway signs” (Grisso, 1994, p. 128). DECISION-MAKING INSTRUMENT FOR GUARDIANSHIP According to Melton, Petrila, Poythress, and Slobogin (2007), the Decision-Making Instrument for Guardianship (DIG) “appears to focus on the domains most relevant to guardianship assessment” and “uses vignettes designed to probe functioning with respect to hygiene, nutrition, health care, residence, property acquisition, routine money management in property acquisition, major expenses in property acquisition, and property disposition” (p. 374). Moye (2003) noted that “the DIG appears to be nicely and appropriately grounded in problem solving theory” (p. 361). ADULT FUNCTIONAL ADAPTIVE BEHAVIOR SCALE The Adult Functional Adaptive Behavior Scale (AFABS) measures the adaptive behaviors of elderly persons displaying deficits in adaptive behavior (Spirrison & Pierce, 1992). This test has also been used in a research context with a broad array of nonelderly inpatients and outpatients, including those diagnosed with psychotic disorders and substance dependence, and it displays a high degree of consistency among items with the additional advantage of brief administration times (Spirrison & Sewell, 1996). PHILADELPHIA GERIATRIC CENTER MULTILEVEL ASSESSMENT INVENTORY The Philadelphia Geriatric Center Multilevel Assessment Inventory (MAI) assesses behavioral competence in older adults, surveying activities of daily living, cognitive ability, use of time, interpersonal skills, the examinee’s perception of the quality of her environment, and psychological well-being (Lawton, Moss, Fulcomer, & Kleban, 1982). This measure has also been used successfully in research assessing depression in nondemented adults (Kiosses & Alexopoulos, 2005). Specific items inquire into the examinee’s

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“physical health, cognition, activities of daily living, time use, social interaction, personal adjustment, and perceived environment (Collier, 1988, p. 48). EVERYDAY PROBLEMS TEST FOR COGNITIVE CHALLENGED ELDERLY The Everyday Problems Test for Cognitive Challenged Elderly (EPCCE) is a performance-based measure of day-to-day activities that shows promising predictive utility regarding functional decline and risk of mortality (Allaire & Willis, 2006). In turn, processing speed, verbal facility, and memory performance have been shown to be significant predictors of performance on this test (Burton, Strauss, Hultsch, & Hunter, 2006). Specific items address such issues as understanding an itemized telephone bill, applying for food stamps, and comprehending directions for persons involved in accidents (Willis, 1994). FUNCTIONAL INDEPENDENCE MEASURE The Functional Independence Measure (FIM) has proven useful in assisting evaluators to predict which examinees will remain dependent on caregivers and which will become independent, subsequent to discharge from hospitalization following a stroke, surveying such items as eating, grooming, bathing, dressing, and bladder and bowel management (Timbeck & Spaulding, 2004). This measure may be more accurate in identifying the level of required assistance than the amount of time necessary to deliver such assistance (Cotter, Burgio, Stevens, Roth, & Gitlin, 2002). AID TO CAPACITY EVALUATION The Aid to Capacity Evaluation (ACE) addresses the examinee’s ability to understand medical problems, proposed treatments, treatment alternatives, and the consequences of accepting or refusing treatment, with “high interrater reliability” (Sturman, 2005, p. 959). This test also calls for the evaluator to inquire into the potential effects of depression, delusions, and psychosis while noting accompanying behavioral observations. The ACE is “a short, more clinically oriented tool that can be administered and scored in five to 10 minutes” (Tunzi, 2001, pp. 302–305).

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CAPACITY ASSESSMENT TOOL The Capacity Assessment Tool (CAT) calls for examinees to display reasoned choices concerning a range of treatment situations. It assesses “registration, recall, description of the choices, descriptions of risks and benefits of those options, insight . . . ability to explain reasons for a choice, and ability to discuss how to handle a potential problem associated with a choice” (Moye, Gurrera, Karel, Edelstein, & O’Connell, 2006, p. 1057). CAPACITY TO CONSENT TO TREATMENT INTERVIEW The Capacity to Consent to Treatment Interview (CCTI) “is based on two clinical vignettes (a neoplasm condition and a cardiac condition) presented orally and in writing at fifth- to sixth-grade reading level” (Gurrera, Moye, Karel, Azar, & Armesto, 2006, p. 1368). This test benefits from high interrater reliability and “permits evaluation of both a subject’s competency performance and competency status” (Sadler, Bernstein, & Marson, 2003, p. 355). COMPETENCY INTERVIEW SCHEDULE The Competency Interview Schedule (CIS) contains questions designed to address “four domains of competence” for patients referred for medical treatment, including “ability to evidence a choice,” “ability to understand the issues related to treatment,” “ability to manipulate information and give a rational decision regarding treatment decisions,” and “appreciation of the nature of the treatment situation and the consequences of treatment”; for example, examinees are asked “why they agreed to or refused treatment, and if they want to get better” (Douglas & Koch, 2001, p. 370). This measure has been proven to discriminate accurately between patients either competent or incompetent to consent to treatment (Bean, Nishisato, Rector, & Glancy, 1994). DECISION ASSESSMENT MEASURE The Decision Assessment Measure (DAM) consists of “a standardized vignette regarding blood drawing” that assesses “paraphrased recall, verbal recognition, and non-verbal recognition . . . recall and recognition are assessed immediately after disclosure without a time

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delay” (Moye et al., 2006, p. 1058). Clinicians should note that this test was developed in the United Kingdom using indigenous legal standards (Wong, Clare, Holland, Watson, & Gunn, 2000). FINANCIAL CAPACITY INSTRUMENT The Financial Capacity Instrument (FCI) consists of 18 financial ability tasks, with domains that include cash transactions, bill payment, and management of bank statements, and has proven useful in discerning between examinees with amnestic mild cognitive impairment and those with early-stage Alzheimer’s disease (Griffin et al., 2003). Initial research indicates that “the FCI can be useful in predicting the level of financial incapacity and subsequent financial management needed” (Grisso, 2003, p. 366). HOPEMONT CAPACITY ASSESSMENT INTERVIEW The Hopemont Capacity Assessment Interview (HCAI) is a manualized assessment tool (Edelstein, 1999), proven to possess “adequate interrater reliability” as a measure of “initial capacity screening,” conveying hypothetical vignettes on eye infection and CPR in a semistructured interview format, for a total administration time of approximately 30 to 60 minutes (Dunn, Nowrangi, Palmer, Jeste, & Saks, 2006, p. 1329–1330). INDEPENDENT LIVING SCALES The Independent Living Scales (ILS) measure “cognitive skills required for independent living” and are “intended to provide guidelines for appropriate supervision requirements for persons in residential placement” (Revheim & Medalia, 2004, p. 1052). This measure, typically employed with persons diagnosed with chronic mental illness, includes subscales that address financial, transportation, home management, social adjustment, and health and safety issues (Loeb, 1996). MACARTHUR COMPETENCE ASSESSMENT TOOL—TREATMENT The MacArthur Competence Assessment Tool—Treatment (MacCat-T) “is based on legal standards of competence such as understanding reasoning, appreciation, and expressing a choice”

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and “has been widely accepted as a ‘gold standard’ of competence assessment in the psychiatric literature” (Vollmann, 2006, p. 289). This instrument “utilizes a semistructured interview to guide the clinician through an assessment of capacity to make an actual treatment decision” involving “choosing between amputation and surgical management of a non-healing toe ulcer” (Gurrera et al., p. 1368).

INFO Potential Members of a Multidisciplinary Team l

Psychologists

l

Medical Doctors

l

Nurses

l

Social Workers

l

Occupational and Rehabilitation Therapists

BARTHEL INDEX The Barthel Index (BI) is one of a handful of “commonly used scales that measure disability or dependence in activities of daily living in stroke victims,” measuring “the patient’s performance in 10 activities of daily life” that include various aspects of feeding, mobility, toileting, bathing, dressing, and continence, with individual activities rated using such descriptors as “unable,” “occasional accident,” “minor help,” and “independent” (Sulter, Steen, & De Keyser, 1999, p. 1538). This test comes “highly recommended” on the basis recent research, although it may be “less reliable in patients with cognitive impairment and when scores obtained by patient interview are compared with patient testing” (Sainsbury, Seebass, Bansal, & Young, 2005, p. 228). KENNY SELF-CARE EVALUATION The Kenny Self-Care Evaluation (KSCE) “covers seven aspects of mobility and self-care” that include “moving in bed, transfers, locomotion, dressing, personal hygiene, bowel and bladder, and feeding,” with clinicians ranking each item as “totally independent,” “requiring assistance or supervision,” or “totally independent” (McDowell, 2006, p. 78). This measure, in service for more than 40 years and revised 25 years ago (I.A. Iverson,

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98 Application BEWARE Overall, forensic clinicians conducting guardianship evaluations need to bear in mind that “gaps still remain in the normative data for very old persons and for diverse ethnic and linguistic populations” and that “comparison of an individual’s test performance against even age-adjusted norms can be misleading if the individual’s earlier abilities fell outside of the population curve” (American Psychological Association, 1998, p. 1301).

Silberberg, Stever, & Schoenning, 1983), is well established as one of the instruments “most commonly used to measure function in the hospitalized patient” (Van Dillen & Roach, 1988, p. 1098).

PHYSICAL SELF-MAINTENANCE SCALE The Physical Self-Maintenance Scale (PSMS) “includes six categories (toileting, feeding, dressing, grooming, ambulation, bathing) with five descriptors per category describing the patient’s functional status in terms of dependence,” asking evaluators to rate the examinee’s highest level of functioning on a range of associated capabilities (Hanna-Pladdy, Heilman, & Foundas, 2003, p. 488). This measure has proven useful as an “examiner-rated functional status” tool in research with older primary care patients (Sinclair, Lyness, King, Cox, & Caine, p. 416).

Multidisciplinary Consultation Some jurisdictions actually mandate the performance of guardianship evaluations by multidisciplinary teams—for example, a psychiatrist (or other physician), a psychologist, and a social worker— which lends itself to a well-rounded and interactive approach to forensic mental health assessment. When certain issues exceed their time, convenience, or expertise, forensic clinicians tasked with conducting these assessments on their own may find it useful to reach out for consultation to members of other professional disciplines. Following are examples of what these colleagues may have to offer.

Psychologists Psychologists are certainly not identical in their knowledge, skill, training, education, and experience. They can be licensed in many jurisdictions with a variety of academic degrees (e.g., PhD, PsyD, and EdD) that are obtained from programs with broadly varying theoretical orientations (e.g., psychodynamic, cognitive–behavioral, and client-centered). In some jurisdictions, persons allowed by

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law to identify themselves using the term “psychologist” may be unlicensed if serving in academic or research positions. Some guardianship evaluators obtain board certification in forensic psychology, some in clinical psychology, and some in neuropsychology. For these and other reasons, it may be advisable or, in some cases, even necessary to seek consultation from a colleague in one’s own discipline.

Medical Doctors Psychiatrists and other medical doctors, whether physicians (MD) or osteopaths (DO), can provide invaluable support in guardianship cases, particularly when the examinee’s diagnosis hinges on disputable medication-based or other physical causes. If the forensic clinician is unsure of the potential interaction of multiple prescriptions or unclear as to which of the examinee’s several disease processes may have the most salient effect on current cognitive deficits—and the prognosis for recovery in light of various available choices of treatment—then a medical consultation is a clearly desirable option in formulating impressions and fashioning recommendations. This is particularly helpful when there is a need to determine the likely rate of future decline for an examinee currently experiencing a specified stage of dementia.

Nurses Nurses possess special expertise in the development, delivery, and assessment of long-term institutional and home care. Guardianship evaluators can benefit from nursing consultation when the time comes to characterize the appropriateness of current services and the likelihood that any desired upgrade in such assistance is feasible and affordable in light of the examinee’s present physical, psychological, emotional, and financial circumstances. Nurses’ established track record of administrative responsibility can come in handy when advising their colleagues on the optimal coordination of care among various professional and paraprofessional disciplines.

Social Workers Social workers are uniquely adept at determining the nature, availability, and interactive potential of private and public agencies. If the guardianship evaluation appears to call for a comparative

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assessment of different intermediate or long-term placement options, social work consultation can be a significant asset. This skill set is typically accompanied by an impressive ability to track down missing or seemingly hard to obtain documentation. Judges, self-paying parties, and private attorneys are likely to be gratified when they learn how comparatively economical it may be to retain this particular brand of consultative assistance.

Occupational and Rehabilitation Therapists Guardianship evaluators will find that, particularly when it comes to functional assessment, occupational and rehabilitation therapists have been performing this sort of work in a clinical as opposed to forensic mode for decades and are in fact the originators of many of the instruments commonly used to assess an examinee’s ability to perform a range of activities of daily living. These professionals are well used to collaborating in a multidisciplinary context and are, in our experience, appreciative of the opportunity to show what they can do in legal as opposed to more traditional care and assessment settings.

Interpretation

6

I

t is at this juncture that the guardianship evaluator steps to the fore as a clinician and mental health expert, providing an individualized, detailed, and professionally responsible perspective on the amassed data that form the basis of a forensic opinion. According to the American Bar Association Commission on Aging and the American Psychological Association (2005): Multiple sources and levels of information (from the medical record, the clinical interviews, behavioral observations, and the multiple types of tests administered) must be considered, weighed, and then translated into diagnostic findings and, separately, into clinical interpretation. For example, the clinician may state that the test results are consistent with dementia, and the patient is capable of making simple medical decisions but lacks the capacity to make complex medical decisions. (p. 39)

Heilbrun, Grisso, and Goldstein (2009) identified a series of general considerations for forensic clinical interpretation (see Table 6.1), annotated here for specific applicability to guardianship evaluations.

Third-Party Information Using third-party information in assessing response style becomes particularly important in light of the poor historical recall to which the examinee with dementia or other debilitating medical conditions may be subject. Is this a particularly good or bad time of day for the examinee as a general rule? Can caretakers identify acute medical, social, or intrapersonal problems that may 101

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Table 6.1

Considerations for Forensic Clinical Interpretation

1.

Use third-party information in assessing response style.

2.

Use testing when indicated in assessing response style.

3.

Use case-specific idiographic evidence in assessing clinical condition, functional abilities, and causal connection.

4.

Use nomothetic evidence in assessing clinical condition, functional abilities, and causal connection.

5.

Use scientific reasoning in assessing causal connections between clinical condition and functional abilities.

6.

Carefully consider whether to answer the ultimate legal question.

7.

Describe findings and limits so that they need change little under cross-examination.

Adapted from Heilbrun, Grisso, & Goldstein, 2009.

have affected response style, or conversely, has the examinee been faring better than usual in recent days? This process has the secondary advantage of exposing the guardianship evaluator to the monitoring investment, insight, and empathic capacities of various individuals who may someday be tapped to serve as guardians.

Testing It would be difficult to overemphasize the utility of objective, psychometrically sound test data in substantiating an eventual forensic opinion. In this context, measures that purport to identify the examinee’s level of effort may be critical. Does there exist a genuine, long-standing, and organically based lack of cognitive capacity, or are test results instead an artifact of episodically poor attitude or even downright malingering? The court is far more likely to find an opinion along these lines to be convincing when this phenomenon

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is anchored in more than clinical observations and allegations of inconsistencies in the examinee’s responses to various inquiries.

Idiographic Evidence Insight into the individual examinee’s personal, subjective experience should be reflected at every level of the guardianship evaluator’s interpretive approach. Guardianship evaluations ultimately hinge on the examinee’s unique circumstances and are informed to the extent possible by a determination of her wants, desires, and personal aspirations. To inform a decision that is the most humane, supportive, and ultimately empowering alternative under current and future circumstances, idiographic data need to be examined in a personalized context that takes into account the examinee’s personal strengths and weaknesses.

Nomothetic Evidence Nomothetic evidence is observable and factually based. The other side of the idiographic coin involves anchoring the guardianship evaluator’s conclusions in verifiable, data-driven assertions that rise above the level of speculation and intuition. Assessment of clinical conditions is enhanced by a review of existing records. Functional abilities are measured by testing and interview that pull for specific demonstrations of problem-solving abilities. Causal connections are not merely inferred from the severity or chronic nature of clinical conditions; rather, identified symptoms are directly tied to observable manifestations of incapacity.

Scientific Reasoning The use of scientific reasoning in assessing causal connections between clinical condition and functional abilities requires the formulation, review, and rejection or acceptance of relevant hypotheses, as described in detail in this chapter. The notion of “scientific reasoning” presupposes appropriately rigorous application of the scientific method and extends beyond merely assuming that because a clinical condition is present, specific functional disabilities must follow. Such assumptions are decreasingly valid—and correspondingly less convincing—when there are arguably valid differential diagnostic options and when the severity of the clinical

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conditions is either minimal overall or variable over time. This is particularly true when the examinee is an older person with allegedly fluctuating cognitive status.

Ultimate Legal Question As noted elsewhere in this volume, statutory provisions may call explicitly on the guardianship evaluator to answer the ultimate legal question. Under these circumstances, the time for careful consideration must occur before the clinician agrees to participate in the forensic evaluation process. It would be unfair to hamstring legal decision makers by leading them on and then eventually failing to deliver an opinion on which the system may rely. In jurisdictions in which the guardianship evaluator maintains the option to state whether the examinee is or is not “disabled” within the meaning of applicable law, care must be taken to confirm that this legal concept is defined with sufficient clarity for determination on the basis of an essentially scientific opinion. Along these lines, the examiner may be called on to state that her opinion has been rendered with a “reasonable” degree of profession-specific certainty (Miller, 2006).

Cross-Examination Describing findings and limits so that they need change little under cross-examination is not a utilitarian or partisan consideration provided to “protect” the guardianship evaluator from cross-examiners and the courts; rather, it reflects the fact that the legal process is best served by opinions that are sufficiently grounded in verifiable facts and scientifically supportable clinical procedures. Appropriate legal inquiry may call for the acknowledgment of additional nuances but should not occasion abrupt changes in core findings because of substandard practice, testimonial inexperience, or poor pretrial preparation. Consultation with counsel concerning the legal translatability of expressed forensic opinions may be particularly helpful in this regard (Heilbrun et al., 2009, pp. 136–137). Consistent with the elements outlined in this book, the American Bar Association Commission on Aging and the American Psychological Association (2008) maintain that for older adults with allegedly diminished capacity, the properly constructed forensic

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interpretive framework calls for consideration of the relevant “legal standard,” “functional elements,” “diagnosis,” “cognitive underpinnings,” “psychiatric or emotional factors,” “values,” “risk considerations,” “steps to enhance capacity,” and “clinical judgment of capacity” (p. 23).

Using Data to Form Opinions Expressing Factual Assumptions Noting that “an expert opinion is only as good as the factual assumptions on which it is based,” Babitsky and Mangraviti (2002) identified the following points for conveying the objectively observed data that underlie a forensic clinical opinion (see Table 6.2).

Table 6.2

1.

Points for Expressing Factual Assumptions

One should describe factual assumptions in a detailed and specific way, not vaguely.

2.

The report should provide a precise citation to the source of the factual assumptions made.

3.

Experts should not guess regarding factual assumptions. They should avoid such terms as “supposedly,” “it has been reported,” “is said,” “as I understand the facts,” and “presumably” in describing factual assumptions.

4.

The expert should verify as many factual assumptions as possible.

5.

One should expect counsel to focus on any dates expressed in the report.

6.

A wise expert bases factual assumptions on reliable information.

7.

Experts should not rely on unverified information provided by retaining counsel.

Adapted from Babitsky & Mangraviti, 2002, p. 6.

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In addition to the points listed in Table 6.2, factual assumptions should be expressed in as objective, transparent, and nonpartisan fashion as possible. Courts and attorneys are exceptionally attuned to attempts by expert witnesses to “spin” data with sarcastic observations, loaded characterizations, hyperbolic language, overt advocacy, or unsupported leaps of logic. Such shortcomings suggest that the guardianship evaluator has abandoned objectivity by buying into the adversarial process, perhaps succumbing to the influence of counsel and straying over the line between objective evaluator and advocate (Barrett, Johnson, & Meyer, 1985; Hornsby, Drogin, & Barrett, 1997; Piechowski, 2006).

Misuse and Misapplications of Data The Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) advise that “forensic psychologists make reasonable efforts to ensure that the products of their own services, as well as their own public statements and professional testimony, are communicated in ways that will promote understanding and avoid deception,” with sensitivity to “the particular characteristics, roles, and abilities of various recipients of the communications” (p. 663). Scientific data are particularly susceptible to the sort of manipulation that such ethical provisions seek to discourage. These data often exceed the understanding of jurors and in some instances may be comprehended by judges and attorneys only after protracted discussion and background study. Obscuring the import of data by deliberately enveloping them in impenetrable jargon runs afoul of the guardianship evaluator’s obligations, as does inflating or minimizing the import of isolated symptoms without a willingness to acknowledge the specific context in which these data were obtained. According to the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002), when it comes to the transgression of other parties, “if psychologists learn of misuse or misrepresentation of their work, they take reasonable

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steps to correct or minimize the misuse or misrepresentation” (p. 1063).

Exceeding the Limitations of Available Data

BEWARE Be alert to potential misuse of assessment data by their various recipients.

Although “psychologists are aware that standardized psychological and neuropsychological tests are important tools in the assessment of dementia and age-related cognitive decline,” they are also “sensitive to the limitations and sources of variability and error in psychometric performance” (American Psychological Association, 1998, p. 1301). Key to realizing such limitations will be the guardianship evaluator’s obligation “to strive to be familiar with the theory, research, and practice of various methods of assessment with older adults” and to remain “knowledgeable of the assessment instruments that are psychometrically suitable for use with them” (American Psychological Association, 2004, p. 246).

Generating and Evaluating Hypotheses Particularly when his identity is that of a forensic psychologist, the guardianship evaluator is likely to be guided by a “truth finding mechanism” (Drogin, 2000b) specifically geared to hypothesis testing. Although the law relies on truth that emanates from conflicts waged in an adversarial system (Shuman & Greenberg, 2003), and medicine proceeds from a diagnostically focused “medical model” (Fink & Taylor, 2008), it is the psychologist—with an educational grounding in statistical analysis—who will be most inclined to conduct formula-driven hypothesis testing, for which various analytical schemes exist (Trafimow, 2003). Such computations may seem a trifle dense or even obscure for those guardianship evaluators who have not taken college courses in 6 chapter statistics for a number of years, but they define the role of the psychologist as a social BEST scientist and also underlie a core function of PRACTICE Be familiar with the support the forensic expert. In the current Specialty for—and limitations Guidelines for Forensic Psychologists, the of—assessment instruments used with older adults. Committee on Ethical Guidelines for

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Forensic Psychologists (1991) maintained that “as an expert conducting an evaluation, treatment, consultation, or scholarly/ empirical investigation, the forensic psychologist maintains professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses” (p. 661). This is not to suggest that the null hypothesis testing model is not without controversy; for example, Balluerka, Gomez, and Hidalgo (2005) identified the following criticisms of this model: that it “does not provide the information which the researcher wants to obtain,” that there are “logical problems derived from [its] probabilistic nature,” that it “does not enable psychological theories to be tested,” that is suffers from the “fallacy of replication,” that it “fails to provide useful information because Ho is always false,” that there are “problems associated with the dichotomous decision to reject or not reject the Ho,” and that overall it “impedes the advance of knowledge” (pp. 57–59). Although a step-by-step review of countering arguments is beyond the scope of this book, guardianship evaluators should remain sufficiently fluent in statistical theory—and sufficiently capable of explaining such notions to judges and juries—to support their forensic assertions. As noted by Drogin (2000a): Lawyers often find that their psychologist experts were indeed educated in these principles—twenty years ago or even longer! A senior psychologist may have run his last “analysis of variance” for his dissertation but may have found scant use for formal statistics since then. It may be appropriate, when feasible, to engage a consultant with more up-to-date experience in principles of research and experimentation or to tactfully suggest that the expert seek out such assistance where appropriate. (pp. 312–313)

Number of Hypotheses Asking the question of how many hypotheses one can construct to explain a case is a device by which the guardianship evaluator can avoid a premature “rush to judgment” when first examining the

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data obtained from clinical and forensic BEST examinations. The actual number of hypothPRACTICE Maintain fluency in statistical eses that can be constructed is limited only by analysis to formulate and the evaluator’s imagination, analytical capaconvey hypotheses properly. city, and confidence in the reliability and validity of the data that she has collected. To facilitate this process, the guardianship evaluator can employ a number of brainstorming techniques, including classic “brainstorming” itself (Dugosh & Paulus, 2005), “in which a slew of rudimentary, experimental theories of the case are quickly designed, quickly analyzed, and, for the most part, just as quickly discarded” (Drogin & Barrett, 2007, p. 473); “brainsketching,” in which ideas are literally drawn on large pieces of paper and arranged for conceptual flow (van der Lugt, 2002); and “brainwriting,” in which such ideas are exchanged among members of the defense or prosecution team to stimulate new perspectives (Paulus & Yang, 2000). In addition, a “jurisprudent science” analysis (Drogin & Marin, 2008) encourages the guardianship evaluator to review every aspect of the assessment process in terms of mental health science, mental health practice, and mental health roles, determining in each case whether process and outcomes lead to a result that truly addresses the referral question and the particular legal proceedings at hand.

Imperfect Fit Between Data and Hypotheses This chapter’s emphasis on the need for guardianship evaluators to avoid obscuring and misrepresenting data should not obscure the fact that sometimes it is the data themselves that come up wanting. Records, testing, and interview results are sometimes equivocal because of a number of potential factors. The examinee may have been uncooperative. There may have been insufficient time—or 6 chapter third-party cooperation—for the location of medical reports. Results from different measures, applied at different times and under different or BEST similar circumstances, may be inconsistent. PRACTICE In these situations, the guardianship evaluaConsider multiple hypotheses in every case. tors must remain cognizant of their

110 Application BEWARE If opinions cannot be sufficiently supported by the data at hand, they must be offered conditionally or withheld altogether.

obligation to “indicate any significant limitations of their interpretations” (American Psychological Association, 2002, p. 1072) and to refrain from offering more than a conditional forensic opinion—or, perhaps, offering any forensic opinion at all— depending on the sufficiency of available data.

Unexpressed and Unexamined Interpretive Logic The primary concern here is that attorneys, judges, juries, and eventual caretakers may substitute their own interpretive logic when not provided with that of the guardianship evaluator. If the examinee’s situation changes subsequent to the proffer of a report and courtroom testimony—a common occurrence—then there may be no way to determine just how critical the altered factor may have been for the guardianship evaluator’s ultimate formulation. Should the examinee now be considered “disabled” when he was not before—or vice versa? Unexpressed and unexamined interpretive logic is also a liability when the time comes for direct and cross-examination of the guardianship evaluator in the role of expert witness. Counsel and the court may be encouraged to pursue a particular outcome only to determine at the last minute that a stated opinion was BEST PRACTICE poorly founded or that there were addiProvide clearly expressed and tional considerations that would have merexamined interpretive logic for opinions. ited further investigation.

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T

his chapter addresses a collection of issues common to most avenues of forensic mental health assessment, tailored to the specific context of guardianship. These include report organization, optimal levels of detail, reporting of test data, expositions of interpretive logic, special testimonial challenges, and “ultimate issue” testimony.

Report Organization The American Bar Association Commission on Law and Aging and the American Psychological Association (2005) identified the following “common elements of a clinical evaluation report” (p. 37) in the context of the assessment of older adults with diminished capacity (see Table 7.1). We have annotated these 11 elements to broaden their potential scope to all guardianship examinees, regardless of age or cognitive status.

Demographic Information Including demographic information enables the reader to view data and interpretations in the proper context. Understanding from the beginning whether the examinee is, for example, older or younger, male or female, or domestic or foreign-born also encourages more sophisticated consumers to consider whether the examinee is utilizing culturally and otherwise appropriate measures and techniques. 111

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Table 7.1

Common Elements of Clinical Evaluation Reports

1. Demographic Information 2. Legal Background and Referral 3. History of Present Illness 4. Psychosocial History 5. Informed Consent 6. Behavioral Observations 7. Tests Administered 8. Validity Statement 9. Summary of Testing Results 10. Impression 11. Recommendations

Adapted from American Bar Association Commission on Law and Aging and the American Psychological Association, 2005, p. 37.

Legal Background and Referral This is an important device for routing the report to its intended recipients and for confirming at the outset why the evaluation is being conducted, for what purposes, at whose request, and with what legal authorization. Stating this information has the added benefit of discouraging subsequent recipients from inappropriately generalizing report conclusions to other clinical or forensic contexts.

History of Present Illness As opposed to an isolated snapshot of current status, the best forensic reports function instead as the latest frame in a filmstrip of the life of an evolving individual. Understanding how an examinee arrived at her present circumstances allows the reader to identify the source of a disability and to determine whether, how, and to what extent related conditions can be treated or accommodated in the future.

Psychosocial History Prior interpersonal relationships are useful indicators of how an examinee is likely to fare under the guidance or control of a given

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petitioner or type of potential caretaker and in hospital, community care, or residential settings. These data also provide an opportunity to evaluate observed symptoms in terms of their likely diagnostic relevance.

Informed Consent This ethically mandated exercise has forensic and diagnostic significance as well. An examinee’s ability—or lack thereof—to comprehend the nature and purpose of the examination, to weigh its risks and benefits, to reach a reasoned conclusion, and to convey that conclusion are all relevant to his ability to arrange for health care and to enter into other contractual relationships in the future.

Behavioral Observations The properly conducted forensic evaluation concerns more than just what an examinee says and what she writes on a test answer sheet. Is hygiene adequate? Is dress appropriate? Is speech normal for volume, tone, pressure, content, and articulation? Are there signs of acute physical distress? Are vision and hearing suited to the examination as initially structured? These and other observations have clear diagnostic relevance.

Tests Administered Listing this information allows sophisticated consumers to assess at a glance the thoroughness of the psychometric portion of the evaluation as well as the relevant experience of the forensic clinician conducting the examination. It also may be helpful to list in this portion of the report those measures that the examiner attempted to administer without success—a common phenomenon in guardianship evaluations.

Validity Statement This device is gaining increased traction in forensic reports of all types. Forensic clinicians are aware—just as readers are often unaware—that test scores identify a range of potential performance instead of a pinpointed, stable level of ability. Similarly, it is helpful for readers to learn how interview responses can be affected by a host of extrinsic factors and how the variable availability of collateral

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contacts and documentation affect the evaluator’s confidence in obtained results.

Summary of Testing Results Instead of compelling the reader to troll through the report in narrative fashion to understand the significance of testing results, the evaluator can provide a readily accessible entry that summarizes this information in one place. This device is particularly welcome when the reader needs to refer back to the report some weeks or even months after initial review.

Impression This is often a more appropriate designation than “diagnosis,” given legal constraints, the overtly functional emphasis of guardianship evaluations, and the occasional lack of data necessary for assigning specific psychiatric labels to examinees. However this portion of the report is styled, its key contribution is to convey how the evaluator has combined all sources of data to arrive at a forensically relevant conclusion.

Recommendations Sad to state, this may be the only aspect of the report that some judges, attorneys, and other recipients will review in any detail. In addition, it is the guardianship evaluator’s best opportunity to make a positive difference, within appropriate forensic boundaries, in the life of the examinee. As a result, there is considerable pressure to offer recommendations that are as concise, accessible, relevant, and realizable as possible.

Other Approaches Clearly, this is not the only valid approach to organizing the guardianship report. The order of these elements is not set in stone, some could be combined, and some could be added; for example, those that describe the evaluator’s credentials, the specified legal standard the report is designed to address, a separate list of documents reviewed—legal, medical, educational, and employment— and a separate list of attempted and achieved collateral contacts. More generally, Heilbrun, Grisso, and Goldstein (2009) advised

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forensic mental health experts to “attribute information to sources,” “use plain language,” “avoid technical jargon,” and, consistent with the preceding advice, to write reports “in sections, according to model and procedures” (p. 137).

Report Details Level of Detail In guardianship cases, as in other forensic matters, achieving the proper level of detail is a matter of carefully considered balance. On the one hand, providing too much information detracts from a report’s narrative flow and may confuse or distract the reader with extraneous information. On the other hand, providing too little information may erode the reader’s confidence in the guardianship report by creating the impression that the evaluator’s conclusions and recommendations are poorly founded. This, in turn, could lead to a predictably but needlessly embarrassing cross-examination, and ultimately to the erosion of the expert witness’ professional reputation. The most useful guardianship reports are those that convey enough detail to address all relevant and appropriate aspects of the referral question, while refraining at the same time from unproductive speculation and literary flourishes.

Exclusion of Detail Separate from issues of style and impression management are those details that should be excluded because they are, in and of themselves, inappropriate for a particular guardianship report. Specifically, some details may invoke the forensic clinician’s ethical obligation, as described in the Ethical Principles of Psychologists and Code of Conduct, to “include in written and oral reports and consultations, only information germane to the purpose for which the communication is made” (American Psychological Association, 2002, p. 1066). This issue has also been addressed in the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), which advise that “the forensic psychologist makes every effort to maintain confidentiality with regard to any

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information that does not bear directly upon the legal purpose of the evaluation” (p. 660) and also that “forensic psychologists avoid offering information from their investigations or evaluations that does not bear directly upon the legal purpose of their professional services and that is not critical as support for their product, evidence, or testimony,” except in situations in which providing such information is “required by law” (p. 662). Examples of such extraneous detail might include embarrassing historical information about an examinee that does not reflect disability and does contribute to an understanding of current disability, compromising allegations concerning collateral contacts who clearly will not serve as a guardian or conservator for the examinee, and unfounded speculation about the status or motivations of other parties. Clearly, there are many kinds of data that will fall into a gray area in this regard. The purpose of addressing this issue is not to frighten guardianship evaluators into steering clear of all statements that do not address a specific element of a statutory definition of disability; rather, we hope that this discussion will inspire our colleagues to think twice before including information of an essentially noncontributory nature.

BEST PRACTICE Consider carefully whether extraneous details merit inclusion in the evaluation report.

Reporting Test Data Reporting test data begs many of the same questions that arise in the context of choosing the optimal level of detail. How much does the reader truly need to understand what the evaluator is attempting to convey? When it comes, for example, to reporting scaled scores and confidence intervals, how much is merely distracting? How much constitutes unnecessary disclosure? These considerations are further complicated by ethical concerns regarding test security and outdated test results. Pursuant to the Ethical Principles of Psychologists and Code of Conduct, psychologists “make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner

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that permits adherence to this Ethics Code” BEST (American Psychological Association, 2002, PRACTICE p. 1072). Similarly, the Specialty Guidelines for Follow ethical guidelines regarding test security and Forensic Psychologists (Committee on Ethical outdated test results. Guidelines for Forensic Psychologists, 1991) further indicate that “every attempt is made to ensure that test security is maintained and access to information is restricted to individuals with a legitimate and professional interest in the data” (p. 664). The guardianship report will be distributed to, at a minimum, a judge and counsel for various interested parties, and—absent the occasional “hearsay” objection—it is likely in some jurisdictions to be distributed to a jury as well. References to individual cognitive testing items or to the specific contents and application of various measures of effort may run afoul of ethical requirements. The Ethical Principles of Psychologists and Code of Conduct also mandate that psychologists “do not base their assessment or intervention decisions or recommendations on data or test results that are outdated for the current purpose” (American Psychological Association, 2002, p. 1072). This is a particular concern with many guardianship evaluations, which can involve reviewing decades’ worth of often stale and poorly collated data. Reporting such results without placing them in the proper context potentially could be viewed by a court or state licensing board as improper.

Describing Interpretive Logic The guardianship report is more than simply a list of test results and interview statements, followed by the evaluator’s isolated impressions and recommendations. Reports are given far greater credence when they describe why it is that the evaluator arrived at a certain forensic opinion. Key to this is the process of “disconfirming or disconfirming possible explanations for relevant capacities and behavior,” described as “one of the important links that connects the sources of information and the raw data that they yield with the

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conclusions regarding relevant forensic capacities” (Heilbrun, 2001, p. 195). Forensic clinicians might assume, for example, that “everyone knows an IQ of 57 signals the presence of mental retardation.” It would be more accurate, however, to observe that every psychologist knows this, and also that many laypersons do not realize that IQ is only one component of a properly derived mental retardation diagnosis. Nor does the examinee’s failure to perform a particular task at a specific time automatically translate into a statutorily defined disability. For example, an inability to read directions on a bottle of pills may be the result of correctable poor vision, a lack of English language facility that has nothing to do with impairment, or a transitional delirium instead of a chronic and progressive dementia. It would be a mistake to rely on subsequent courtroom testimony to supply missing information and to flesh out what might appear to be interpretive “leaps of faith” in the guardianship report. Experienced witnesses know that they may or may not have to chance to tell “their side” of the story, due perhaps to ineffective direct examination, overly restrictive cross-examination, or unavailability to testify on a given date.

BEST PRACTICE Describe the interpretive logic that links your opinion to the available data.

Related Testimonial Issues Preparation for Testimony Writing the most accurate, detailed, and relevant guardianship report possible means little if the expert witness is not in a position to convey its contents effectively in the courtroom. Drogin (2000a, p. 308) identified a “checklist for preparing an expert mental health witness for courtroom testimony” (see Figure 7.1).

Strategies of Effective Testimony Reviewing various “maxims” developed by Brodsky (1991), Heilbrun (2001)—while acknowledging forthrightly that “there is no place for deception” in forensic mental health assessment—highlighted several

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1. Relevance

Is the anticipated testimony of actual value to one’s opinion concerning the need for guardianship, or instead does it subtly undermine that opinion?

2. Admissibility

Does the witness understand the evidentiary rules, case law, and statutes concerning guardianship as applied in the jurisdiction in question, and has he or she considered how report findings and conclusions meet this standard?

3. Pertinence

In addition to relevance, does the anticipated testimony address the actual subject matter of guardianship?

4. Consistency

Do proffered diagnoses—if any, given the functional nature of most guardianship evaluations—comport with the relevant diagnostic criteria?

5. Ethicality

Are all aspects of the conduct of the examination, reporting, characterizations, conclusions, and recommendations consistent with the ethical code relevant to the expert’s particular profession?

6. Accuracy

Have the professional report and supporting test data been scanned for typographical errors, mathematical inaccuracies, and potentially misleading language?

7. Authoritativeness

Has the witness satisfactorily documented relevant degrees, credentials, and experience, with the type of supporting documentation that underscores the appropriateness of asking this particular professional to address the guardianship issues at hand?

8. Supportability

Is the witness prepared to provide copies of, and to cite at trial, research and other guardianship-oriented literature supportive of his or her assessment methodology and articulated positions?

9. Comfort Level

Is the witness aware of and comfortable with the ramifications of stating his or her opinions in light of the potential reactions of various professional and public interest communities?

10. Orientation

Does the witness fully understand where to be, when to testify, how early to arrive, where to park, in what order the case is expected to proceed, and for how long the guardianship case is expected to continue?

Figure 7.1

Checklist for Courtroom Testimony

Adapted from Drogin, 2000a, p. 308.

that constitute “stylistic approaches to enhancing the effectiveness of testimony,” including the following: •

“when challenged about insufficient experience, keep track of the true sources of your expertise,”

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•

“criticize your field as requested, but be poised and matter of fact and look for opportunities to gain control,”

•

“explicitly relax or engage in productive work just before your court appearance,”

•

“never accept the learned treatise as expertise unless you are master of it,” and

•

“when the time is right to disagree with crossexamination questions, do so with strength, clarity, and conviction.” (pp. 274–279, bullet points added)

Expert witnesses must be prepared to confront their own personal shortcomings as well as the alleged deficiencies of their assessment methodologies and reports. As Gutheil (1998) asserted: Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court. For example, have you been the defendant in a malpractice suit, however baseless? Are you now being investigated by the board of registration for some allegation, no matter how unfounded? Do you have a history of problems in the military, juvenile offenses, a criminal record (no matter how minor), credentialing problems in the past, and similar problems? You must be extremely candid with the lawyers about such facts at the outset. (p. 22)

To provide these and other types of information to counsel, it is necessary to have proper access to counsel. Another of Brodsky’s (1991) maxims is “meet with the attorney prior to the direct examination and be involved in preparing the questions” (p. 65). Witness testimony “requires advance preparation” (Small, 1999, p. 245), and Brodsky (2005) has indicated that it is appropriate to “pursue” counsel when he is “unavailable or reluctant to meet with their witnesses before trials” (p. 592). BEST PRACTICE With a report written and the proper Meet with counsel to provide trial preparation undertaken, the witness relevant information as part of your preparation for testimony. will still need to be allowed to testify about

Report Writing and Testimony 121 BEWARE her findings. One barrier to this may be the Some jurisdictions witness’ out-of-state status. In our experience, may have attorneys in guardianship cases are increasingly specialized licensure requirements for expert likely to hire witnesses from other states but may witnesses. not be aware of specialized licensure requirements in some jurisdictions that define courtroom testimony as the practice of psychology (Shuman, Cunningham, Connell, & Reid, 2003; Yantz, Bauer, & McCaffrey, 2006). In addition to assisting in the lawyer’s review of relevant guardianship statutes, regulations, and case law, witnesses may wish to identify the appropriate licensing body to “ask if the board adheres to any internal rules in processing such cases, which may or may not be committed to writing” (Drogin, 1999, p. 770).

Addressing The Ultimate Legal Issue According to Ewing (2003): Traditionally, until mid-twentieth century, courts generally proscribed expert opinions that went to what the courts called the ultimate issue: the specific question before the trier of fact. These proscriptions were based on the argument that experts who testified to the ultimate question were invading the province of, or usurping the function of, the trier of fact. That reasoning has now been largely rejected and most jurisdictions allow ultimate opinion testimony. (p. 62)

The primary reason for this change is the language in Federal Rule of Evidence (FRE) 704 directing that in civil cases, “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The adoption of this rule by a majority of states, since its inception in 1975, has enabled forensic clinicians in those jurisdictions to state plainly in their guardianship reports—and on the witness stand—that, for example, an examinee is “disabled” and “in need of the appointment of a guardian,” without counsel having to fear an evidencebased objection.

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Clearing evidentiary hurdles does not, of course, absolve expert witnesses of their own personal concerns regarding ethics and professionalism. The propriety of offering “ultimate issue” testimony, even when supported by law and local custom, is still briskly debated in the forensic mental health literature (e.g., Grisso, 2003; Heilbrun, 2001; Tippins & Wittman, 2006). “Ultimate issue” testimony that is not adequately supported also may be challenged as failing to meet prevailing standards for the admissibility of expert testimony. As Buchanan (2006) noted, “much of the harm that courts identify as stemming from evidence going to the ultimate issue could be avoided if evidence were given with greater transparency” (p. 20). In other words, adhering to the report writing practices described in this chapter—particularly, those involving the description of interpretive logic—will go a long way toward alleviating any concern about experts summarizing what their complex and detailed efforts are clearly designed to address.

BEST PRACTICE When addressing the ultimate legal issue, clearly convey the reasons and evidence for your opinion.

References

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Tests and Specialized Tools

ACE: Aid to Capacity Evaluation (Etchells, Darzins, Silberfeld, Singer, McKenny, Naglie et al., 1990) AFABS: Adult Functional Adaptive Behavior Scale (Pierce, 1989) BAI: Beck Anxiety Inventory (Leyfer, Ruberg, & WoodruffBorden, 2006) BDI-II: Beck Depression Inventory (Cohen, 2008) BHS: Beck Hopelessness Scale (McMillan, Gilbody, Beresford, & Neilly, 2007) BI: Barthel Index (Sainsbury, Seebass, Bansal, & Young, 2005) BPRS: Brief Psychiatric Rating Scale (Ownby & Seibel, 1994) CAT: Capacity Assessment Tool (Carney, Neugroschl, Morrison, Marin, & Sui, 2001) CCS: Community Competency Scale (Searight & Goldberg, 1991) CCSE: Cognitive Capacity Screening Examination (Anderson, Burton, Parker, & Gooding, 2001) CCTI: Capacity to Consent to Treatment Interview (Marson, Ingram, Cody, & Harrell, 1995). CIS: Competency Interview Schedule (Bean, Nishisato, Rector, & Glancy, 1996) DAFS: Direct Assessment of Functional Status (Loewenstein, Amiga, Duara, Guterman, Hurwitz, Burkowitz, et al., 1989) DAM: Decision Assessment Measure (Wong, Clare, Holland, Watson, & Gunn, 2000). DIG: Decision-Making Instrument for Guardianship (Anderer, 1997) EPCCE: Everyday Problems Test for Cognitive Challenged Elderly (Willis, 1994) 139

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FCI: Financial Capacity Instrument (Marson, Sawrie, Snyder, McInturff, Stalvey, Boothe, et al., 2000) FIM: Functional Independence Measure (Cotter, Burgio, Stevens, Roth, & Gitlin (2002) Halstead–Reitan Neuropsychological Test Battery (Horton, 2008) HCAI: Hopemont Capacity Assessment Interview (Edelstein, Nygren, Northrop, Staats, & Pool, 1993) HRSD: Hamilton Depression Rating Scale (Furukawa, Toshi, Akechi, Azuma, Okyama, & Higuchi, 2007) ILS: Independent Living Scales (Loeb, 1996) KSCE: Kenny Self Care Evaluation (Iverson, Silberberg, Stever, & Schoenning (1983) MacCAT-T: MacArthur Competence Assessment Tool— Treatment (Grisso & Appelbaum, 1998). MAI: Philadelphia Geriatric Center Multilevel Assessment Inventory (Lawton & Moss, n.d.) MAST: Michigan Alcoholism Screening Test (Shields, Howell, Potter, & Weiss, 2007) MCMI-III: Millon Clinical Multiaxial Inventory (Craig, 2005b) MFAQ: Multidimensional Functional Assessment Questionnaire (Center for the Study of Aging and Human Development, 1978). MMPI-2: Minnesota Multiphasic Personality Inventory (Bagby, Marshall, Basso, Nicholson, Bacchiochi, & Miller, 2005) MMSE: Mini-Mental State Examination (Shiroky, Schipper, Bergman, & Certkow, 2007) PAI: Personality Assessment Inventory (Mozley, Miller, Weathers, Beckham, & Feldman, 2005) PPVT4: Peabody Picture Vocabulary Test (Powell, Plamondon, & Retzlaff, 2002) PSMS: Physical Self-Maintenance Scale (Lawton & Brody, 1969) SASSI-3: Substance Abuse Subtle Screening Inventory (Feldstein & Miller, 2007)

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Shipley-2 (Shipley, Gruber, Martin, & Klein, 2009). SOGS-R: South Oaks Gambling Survey (Wiebe & Cox, 2005) STAI: State-Trait Anxiety Inventory (Barnes, Harp, & Jung, 2002) TMT: Trail Making Test (Ashendorf, Jefferson, O’Connor, Chaisson, Green, & Stern, 2008) WAIS-IV: Wechsler Adult Intelligence Scale (Wechsler, 2008) WASI: Wechsler Abbreviated Scale of Intelligence (Wechsler, 1999). WIAT-II: Wechsler Individual Achievement Test (Lichtenberger & Smith, 2005) WISC-IV: Wechsler Intelligence Scale for Children (Wechsler, 2003) WRAT-4: Wide Range Achievement Test (American Psychological Association Division 5, 2007)

References for Tests and Specialized Tools American Psychological Association Division 5. (2007). Wide Range Achievement Test 4 (WRAT 4) by Gary S. Wilkinson and Gary J. Robertson. The Score, 29(1), 4–5. Anderer, S. J. (1997). Developing an instrument to evaluate the capacity of elderly persons to make personal care and financial decisions. Unpublished doctoral dissertation, Allegheny University of Health Sciences. Anderson, D. A., Burton, D. B., Parker, J. D., & Gooding, P. R. (2001). A confirmatory factor analysis of the Cognitive Capacity Screening Examination in a clinical sample. International Journal of Neuroscience, 111, 221–233. Ashendorf, L., Jefferson, A. L., O’Connor, M. K., Chaisson, C., Green, R. C., & Stern, R. A. (2008). Trail Making Test errors in normal aging, mild cognitive impairment, and dementia. Archives of Clinical Neuropsychology, 23, 129–137. Bagby, R. M., Marshall, M. B., Basso, M. R., Nicholson, R. A., Bacchiochi, J., & Miller, L. S. (2005). Distinguishing bipolar depression, major depression, and schizophrenia with the MMPI-2 clinical and content scales. Journal of Personality Assessment, 84, 89–95. Barnes, L. L., Harp, D., & Jung, W. S. (2002). Reliability generalization of scores on the Spielberger State–Trait Anxiety Inventory. Educational and Psychological Measurement, 62, 603–618.

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Bean, G., Nishisato, S., Rector, N. A., & Glancy, G. (1996). The Assessment of Competence to Make a Treatment Decision: An empirical approach. Canadian Journal of Psychiatry, 41, 85–92. Carney, M. T., Neugroschl, J., Morrison, R. S., Marin, D., & Sui, A. L. (2001). The development and piloting of a capacity assessment tool. Journal of Clinical Ethics, 12, 17–23. Center for the Study of Aging and Human Development. (1978). Multidimensional Functional Assessment: The OARS methodology. Durham, NC: Duke University. Cohen, A. (2008). The underlying structure of the Beck Depression Inventory II: A multidimensional scaling approach. Journal of Research in Personality, 24, 779–786. Cotter, E. M., Burgio, L. D., Stevens, A. B., Roth, D. L., & Gitlin, L. N. (2002). Correspondence of the Functional Independence Measure (FIM) subscale with real-time observations of dementia patients’ ADL performance in the home. Clinical Rehabilitation, 16, 36–45. Craig, R. J. (1997). Sensitivity of MCMI-III scales T (drugs) and B (alcohol) in detecting substance abuse. Substance Use and Misuse, 32, 1385–1393. Craig, R. J. (2005a). Assessing contemporary substance abusers with the MMPI MacAndrews Alcoholism Scale: A review. Substance Use and Misuse, 40, 427–450. Craig, R. J. (Ed.). (2005b). New directions in interpreting the Millon Clinical Multiaxial Inventory—III. Hoboken, NJ: Wiley. Edelstein, B., Nygren, M., Northrop, L., Staats, N., & Pool, D. (1993, August). Assessment of Capacity to Make Financial and Medical Decisions. Paper presented at the meeting of the American Psychological Association, Toronto, Canada. Etchells, E., Darzins, P., Silberfeld, M., Singer, P. A., McKenny, J., Naglie, G., Katz, M., Guyatt, G. H., Molloy, D. W., & Strang, D. (1999). Assessment of Patient Capacity to Consent to Treatment. Journal of General Internal Medicine, 14, 27–34. Feldstein, S. W., & Miller, W. R. (2007). Does subtle screening for substance abuse work? A review of the Substance Abuse Subtle Screening Inventory (SASSI). Addiction, 102, 41–50. Furukawa, T. A., Toshi, A., Akechi, T., Azuma, H., Okyama, T., & Higuchi, T. (2007). Evidence-based guidelines for interpretation of the Hamilton Rating Scale for Depression, Journal of Clinical Psychopharmacology, 27, 531–534. Golden, C. J. (2004). The Adult Luria–Nebraska Neuropsychological Battery. In G. Goldstein, S. R. Beers, & M. Hersen (Eds.), Comprehensive handbook of psychological assessment: Vol. 1. Intellectual and neuropsychological assessment (pp. 133–146). Hoboken, NJ: Wiley.

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Grisso, T., & Appelbaum, P. S. (1998). Assessing competence to consent to treatment. New York: Oxford University Press. Horton, A. M. (2008). The Halstead–Reitan Neuropsychological Test Battery: Past, present, and future. In A. M. Horton & D. Wedding (Eds.), The neuropsychology handbook (3rd ed., pp. 251–278). New York: Springer. Iverson, I. A., Silberberg, N. E., Stever, R. C., & Schoenning, H. A. (1983). The revised Kenny Self-Care Evaluation: A numerical measure of independence in activities of daily living. Minneapolis, MN: Sister Kenny Institute. Kellogg, S. H., Ho, A., Bell, K., Schluger, R. P., McHugh, P. F., McClary, K. A., & Kreek, M. J. (2002). The Personality Assessment Inventory Drug Problems Scale: A validity analysis. Journal of Personality Assessment, 79, 73–84. Lawton M. P., & Brody, E. (1969). Assessment of older people: Selfmaintaining and instrumental activities of daily living. Gerontologist, 9, 179–186. Lawton, M. P., & Moss, M. (n.d.). Philadelphia Geriatric Center Multilevel Assessment Instrument: Manual for Full-length MAI. Leyfer, O. T., Ruberg, J. L., & Woodruff-Borden, J. (2006). Examination of the Beck Anxiety Inventory and its factors as a screener for anxiety disorders. Journal of Anxiety Disorders, 20, 444–458. Lichtenberger, E. O., & Smith, D. R. (2005). Essentials of WIAT-II and KTEA-II assessment. Hoboken, NJ: Wiley. Loeb, P. A. (1996). Independent Living Scales. San Antonio, TX: The Psychological Corporation. Loewenstein, D. A., Amigo, E., Duara, R., Guterman, A., Hurwitz, D., Berkowitz, N., Wilkie, F., Weinberg, G., Black, B., Gittelman, B., & Eisdorfer, C. (1989). A new scale for the assessment of functional status in alzheimer’s disease and related disorders. Journal of Gerontology, 44, 114–121. Marson, D. C., Ingram, K., Cody, H., & Harrell, L. (1995). Assessing the competency of patients with Alzheimer’s disease under different legal standards. Archives of Neurology, 52, 949–954. Marson, D. C., Sawrie, S. M., Snyder, S., McInturff, B., Stalvey, T., Boothe, A., Aldridge, T., Chatterjee, A., & Harrell, L. E. (2000). Assessment of financial capacity in patients with Alzheimer’s disease: A prototype instrument. Archives of Neurology, 57, 877–884. McMillan, D., Gilbody, S., Beresford, S., & Neilly, L. (2007). Can we predict suicide and non-fatal self-harm with the Beck Hopelessness Scale? A meta-analysis. Psychological Medicine, 37, 769–778. Morey, L. C., & Quigley, B. D. (2002). The use of the Personality Assessment Inventory (PAI) in assessing offenders. International Journal of Offender Therapy and Comparative Criminology, 46, 333–349.

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Mozley, S. L., Miller, M. W., Weathers, F. W., Beckham, J. C., & Feldman, M. E. (2005). Personality Assessment Inventory (PAI) profiles of male veterans with combat-related posttraumatic stress disorder. Journal of Psychopathology and Behavioral Assessment, 27, 179–189. Ownby, R. L., & Seibel, H. P. (1994). A factor analysis of the Brief Psychiatric Rating Scale in an older psychiatric population. Multivariate Experimental Clinical Research, 10, 145–156. Pierce, P. S. (1989). Adult Functional Adaptive Behavior Scale: Manual of Directions (rev. ed.). Togus, ME: Author. Powell, S., Plamondon, R., & Retzlaff, P. (2002). Screening cognitive abilities in adults with developmental disabilities: Correlations of the K-BIT, PPVT-3, and CVLT. Journal of Developmental and Physical Disabilities, 14, 239–246. Sainsbury, A., Seebass, G., Bansal, A., & Young, J. B. (2005). Reliability of the Barthel Index when used with older people. Age and Ageing, 34, 228–232. Searight, H. R., & Goldberg, M. A. (1991). The Community Competence Scale as a measure of functional daily living skills. Journal of Mental Health Administration, 18, 128–134. Shields, A. L., Howell, R. T., Potter, J. S., & Weiss, R. D. (2007). The Michigan Alcoholism Screening test and its shortened form: A metaanalytic inquiry into score reliability. Substance Use and Misuse, 42, 1783–1800. Shipley, W. C., Gruber, C. P., Martin, T. A., & Klein, A. M. (2009). Shipley—2 manual. Los Angeles, CA: Western Psychological Services. Shiroky, J. S., Schipper, H. M., Bergman, H., & Chertkow, H. (2007). Can you have dementia with an MMSE score of 30? American Journal of Alzheimer’s Disease and Other Dementias, 22, 406–415. Wechsler, D. (1999). WASI manual. San Antonio, TX: Psychological Corporation. Wechsler, D. (2003). WISC-IV technical and interpretive manual. San Antonio, TX: Psychological Corporation. Wechsler, D (2008). WAIS-IV administration and scoring manual. San Antonio, TX: Pearson. Wiebe, J. M., & Cox, B. J. (2005). Problem and probable pathological gambling among older adults assessed by the SOGS-R. Journal of Gambling Studies, 21, 205–221. Willis, S. L. (1994). Test administration manual for Everyday Problems for Cognitively Challenged Elderly (EPCCE). State College, PA: Pennsylvania State University. Wong, J. G., Clare, I. C., Holland, A. J., Watson, P. C., & Gunn, M. (2000). The capacity of people with a “mental disability” to make a health care decision. Psychological Medicine, 30, 295–306.

Cases and Statutes 29 U.S.C. }1181(a). 42 U.S.C. }1977(gg). 750 Ill. Comp. Stat. Ann. 5.301. Americans with Disabilities Act, 42 U.S.C. }12101 et seq. (1990). Boardman v. Woodman, 47 N.H. 120 (1866). Del. Code Ann. tit. 29 }3901(a)(2). Doe v. Rowe, 156 F.Supp.2d 35 (D. Me. 2001). Fed. R. Evid. 704. In re Estate of Katherine F. Washburn, 141 N.H. 658 (1997). In re Last Will and Testament of Palecki, 920 A.2d 413 (Del. 2007). Ky. Rev. Stat. }387.510. Ky. Rev. Stat. }387.540. Larsen v. Larsen, 192 N.E.2d 594 (Ill. 1963). Matter of Gordy, 658 A.2d 613 (Del. 1994). N.H. Rev. Stat. Ann. }464-A:9(IV). N.H. Rev. Stat. Ann. }464-A:26-a(III). N.M. Code R. }45-5-101. N.Y. Ment. Hyg. Law }81.03. N.Y. Ment. Hyg. Law }81.09. Ohio Rev. Code Ann. }3503.18. Ohio Rev. Code Ann. }5122.301. Ohio Rev. Code Ann. }5123.62(W). Pape v. Byrd, 582 N.E.2d 164 (Ill. 1991). Vt. Stat. Ann. tit. 14, }3061. Vt. Stat. Ann. tit. 14, }3067.

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Key Terms beyond a reasonable doubt: the highest standard of legal proof, requiring a finding that the information provided is overwhelmingly more likely to indicate one finding as opposed to another. clear and convincing evidence: a middling standard of legal proof, requiring a finding that the information provided is substantially more likely to indicate one finding as opposed to another. conservator: a party legally appointed to manage the financial affairs of a person with a disability. conservatorship: the legal appointment of a party responsible for managing the financial affairs of a person with a disability. cross-examination: testimony provided in response to questioning by the attorney who did not call the witness; more likely to take on an adversarial tone. direct examination: testimony provided in response to questioning by the attorney who called the witness; more likely to be conducted in a supportive tone. forensic assessment instruments: structured quantitative interview tools designed for focused assessment of the functional legal abilities of direct relevance to legal questions. forensically relevant instruments: psychological tests or instruments that assist in evaluating characteristics or conditions that, although not the focus of legal inquiry, might be considered in a forensic evaluation. guardian: a party legally appointed to manage the personal care of a person with a disability. guardianship: the legal appointment of a party responsible for managing the personal care of a person with a disability. idiographic: data obtained through the investigation of one individual, usually the individual under consideration. informed consent: an individual’s consent for another person to engage in intervention that would otherwise constitute an invasion of the individual’s privacy, after the individual has been 147

148 Key Terms

fully informed of the nature and consequences of the proposed action, is competent to consent, and consents voluntarily. Informed consent is not necessary on court-ordered or statutorily mandated evaluations in criminal or delinquency cases, or when authorized by legal counsel for the individual. nomothetic: data obtained through the investigation of groups. null hypothesis: the hypothesis that assumes there is no effect of whatever variable is under consideration. One can never prove that there is no effect, but one can disprove that there is no effect. objective measures: psychological tests or measures that present unambiguous stimuli to divine the examinee’s personality characteristics or functional abilities. petitioner: a party alleging that a person has a disability requiring management of personal care or financial resources. preponderance of the evidence: the lowest standard of legal proof, requiring a finding that the information provided is more likely to indicate one finding as opposed to another. projective measures: psychological tests or instruments that present ambiguous stimuli to divine an examinee’s personality characteristics. respondent: a person alleged in court to have a disability requiring management of personal care or financial resources. sundowning: a broadly described phenomenon typically attributed to patients aged over 60 years that involves an exacerbation of behavioral symptoms in the afternoon and evening for persons with Alzheimer’s disease. testamentary capacity: the ability to execute a will in a competent fashion, determined with reference to such factors as knowing the extent of one’s estate, knowing who would be expected to receive one’s estate, and being able to devise a rational plan of distribution. undue influence: when a person’s attempt to execute a will is compromised by external pressures such as coercion, harassment, or other interpersonal manipulation. ultimate issue opinion: an opinion offered by an expert witness directly addressing the legal determination to be made by the court.

Index

42 U.S.C. }1977(gg), 14 750 Ill. Comp. Stat. Ann. 5.301, 26 AAPL Guidelines (Ethical Guidelines for the Practice of Forensic Psychiatry) competency, 66, 67 confidentiality, 69 identification of standard, 65 informed consent, 68 treatment vs. evaluation, 70 ABA/APA Working Group automobile driving, 38–39 financial capacity, 39 Academic testing, 89 Addictions testing, 90–91 Adjudication, 7 Adult Functional Adaptive Behavior Scale (AFABS), 93 Affective conditions testing, 89–90 Age/aging, 43–44 Aid to Capacity Evaluation (ACE), 94 Alzheimer’s disease criteria, 41–42 and dementia, 43 sundowning, 55 American Academy of Psychiatry and the Law (AAPL). See AAPL Guidelines (Ethical Guidelines for the Practice of Forensic Psychiatry) American Association of Motor Vehicle Administrators (AAMVA), 16 American Bar Association (ABA), 38–39, 92 American Bar Association Commission on Law and Aging clinician’s experience/knowledge, 45 evidence analysis, 6 forensic opinion formation, 101, 104–105 guardianship monitoring, 8 report organization, 111 American Psychiatric Association, 38 American Psychological Association (APA) automobile driving, 38–39 evidence analysis, 6

examiner’s competency, 65 financial capacity, 39 forensic testing, 92 guardianship monitoring, 8 Guidelines for Psychological Practice with Older Adults, 45, 87 Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline, 44, 87 Americans with Disabilities Act (1990), 15 Anderer, S. J., 51 APA Ethics Code (Ethical Principles of Psychologists and Code of Conduct) competency, 66 confidentiality, 68 identification of standard, 65 informed consent, 67 misuse/misapplications of data, 105–106 record keeping, 71 report details, 115 test data reporting, 116, 117 test data/security, 72, 117 treatment vs. evaluation, 70 Appelbaum, P. S., 3–4, 38, 78 Are` an, P., 43 Armesto, J. C., 45, 46 Assent vs. consent, 67–68 Assessment for disability, 23–29 Assessment of Older Adults with Diminished Capacity, 66–67 Assessment practice research, 46–47 Assumptions, expressing factual, 105–106 Attorney’s office, as examination site. See also Counsel, 56 Authorization of examinations, 54 Automobile driving, 16–17, 37–39, 78–79 Azar, A. R., 45 Babitsky, S., 105 Balluerka, N., 108 Barthel Index (BI), 97

149

150 Index Behavioral observations, 113 Behavioral response, 79 Behavioral signs, 82–83 Board certification, 72–73 Boardman v. Woodman, 13 Brodsky, S. L., 118, 120 Buchanan, A., 122 Bundy, A., 38 Calculation problems, 81 Capacity Assessment Tool (CAT), 95 Capacity to Consent to Treatment Interview (CCTI), 95 CCS (Community Competency Scale), 92 Choices, consistency of, 6 CIS (Competency Interview Schedule), 95 Clemson, L., 38 Cognitive functioning, 6 Cognitive signs, 80–82 Cognitive testing, 88–89 Coleman, N., 7, 51 Collateral information availability of, 61–63 need for, 61 strategies for obtaining, 64–65 Collateral information sources correctional, 86 educational, 84–85 friends/relatives, 86–87 legal and forensic, 86 medical care, 83–84 military, 85–86 occupational, 85 Communication problems, 81 Community Competency Scale (CCS), 92 Community group participation, 12 Competency, of examiner, 65–67 Competency Interview Schedule (CIS), 95 Complaint investigation, 10 Comprehension problems, 81 Computerized assessment, 46 Confidentiality, 68–69 Consent vs. assent, 67–68 Conservator, 3 Conservatorship, 17 Cornwell, R. E., 43–44 Counsel

as collateral information source, 62 presence of, 58–59 role of, 53–54 Counsel’s office. See Attorney’s office, as examination site Court action/monitoring. See Guardianship monitoring Court orders, 64 Courthouse, as examination site, 57–58 Courts, as collateral information source, 61–62, 64 Cross-examination, 104–105 Cummings, J. L., 46 DAFS (Direct Assessment of Functional Status), 92–93 Data, and opinion formation, 105–107 Data collection behavioral signs, 82–83 cognitive signs, 80–82 cognitive testing, 88–89 collateral information sources, 83–87 emotional signs, 82 forensic testing, 91–98 general domains of inquiry, 75–80 multidisciplinary consultation, 98–100 personality testing, 89–91 psychological testing, 87–88 Dattilio, F. M., 72–73 Davis, H. P., 43–44 Decision Assessment Measure (DAM), 95–96 Decision-Making Instrument for Guardianship (DIG), 93 Del. Code Ann. tit. 29 }3901(a)(2), 18 Delaware, guardianship statutes, 18 Delusion/delusional disorder, 31–32, 82, 90 Demographic information, 111 Department of Motor Vehicles (DMV), 16 Depp, C., 43 Direct Assessment of Functional Status (DAFS), 92–93 Disability, assessment for, 23–29, 91 Disability identification, 21–23 Disorientation, 81–82 District of Columbia automobile driving, 16 voting rights, 14

Index 151 Doctors, consultation with, 99 Doe v. Rowe, 14, 15, 33 Doniger, G. M., 46 Driving. See Automobile driving Drogin, E. Y., 108, 118 Edelstein, B., 7, 46 Education, 76 Emotional signs, 82 English law, 4 EPCCE (Everyday Problems Test for Cognitive Challenged Elderly), 94 Equal Protection clause, 15 Ethical guidelines, 11 Ethical Guidelines for the Practice of Forensic Psychiatry (AAPL Guidelines) competency, 66, 67 confidentiality, 69 identification of standard, 65 informed consent, 68 treatment vs. evaluation, 70 Ethical issues board certification, 72–73 confidentiality, 68–69 consent vs. assent, 67–68 examiner’s competency, 65–67 record keeping, 71–72 test security, 72 treatment vs. evaluation, 69–71 Ethical Principles of Psychologists and Code of Conduct (APA Ethics Code) competency, 66 confidentiality, 68 identification of standard, 65 informed consent, 67 misuse/misapplications of data, 105–106 record keeping, 71 report details, 115 test data reporting, 116, 117 test data/security, 72, 117 treatment vs. evaluation, 70 Ethnic group data, 44 Evaluation, preparation for. See also Ethical issues collateral issues, 60–65 counsel, presence of, 58–59 counsel, role of, 53–54 examination scheduling, 54–58

petitioners, presence of, 59–60 referral, 51–53 Evaluation vs. treatment, 69–71 Evaluator characteristics, 44–45 Evaluator’s office, as examination site, 56 Everyday activities/functioning, 6 Everyday Problems Test for Cognitive Challenged Elderly (EPCCE), 94 Evidence standard, 7 Ewing, C. P., 121 Examination circumstances, 79–80 Examinee characteristics, 43–44 Examinee interview, 75–80 Examinee’s home, as examination site, 56–57 Factual assumptions, expressing, 105–106 Federal Rule of Evidence (FRE) 704, 121 Fillit, H. M., 46 Finances, 76–77 Financial Capacity Instrument (FCI), 96 Financial transactions, 17, 39–41 Fleming, R. B., 4 Forensic assessment instruments (FAIs), 92 Forensic clinical interpretation. See Interpretation Forensic mental health concepts automobile driving, 37–39 financial transactions, 39–41 independent living/medical care, 41–42 marriage, 36–37 testamentary capacity, 31–33 voting rights, 33–36 Forensic Psychologists. See Specialty Guidelines for Forensic Psychologists (SGFP) Forensic testing, 91–98 Foster, S. M., 43–44 Friends/relatives, as collateral information source, 63 Functional impairment, 17 Functional Independence Measure (FIM), 94 Functional legal constructs automobile driving, 16–17 financial transactions, 17 independent living/medical care, 17–18

152 Index Functional legal constructs (Continued ) marriage, 15–16 testamentary capacity, 12–13 voting rights, 13–14 Functioning, enhancement of, 6 Funding, for guardianship monitoring, 11 Gallagher-Thompson, D., 44–45 Gavisk, M., 43 Goldstein, A. M., 101, 114–115 Gomez, J., 108 Gordon, S. M., 33 Greenburg, S. A., 83 Greene, E., 43 Grisso, T., 92, 101, 114–115 Grooming/hygiene, 83 Gross mismanagement, 17, 23 Guardianship, as legal process, 3 Guardianship evaluation comparisons assessment for disability, 23–29 conduct of evaluation, 19–21 identification of disability, 21–23 Guardianship evaluators, characteristics of, 44–45 Guardianship examinations assessment practice research, 46–47 computerized assessment, 46 evaluator characteristics, 44–45 examinee characteristics, 43–44 neuropsychological testing, 45–46 Guardianship monitoring community group participation, 12 complaint investigation, 10 court action, 7 ethical guidelines, 11 funding, 11 overview of practices, 8 periodic hearings, 10–11 reporting enforcement, 9–10 reporting/accounting deadlines, 9 review procedures, 10 Standards of Practice, 12 status reports, 8–9 written plan, 9 Guidelines for Psychological Practice with Older Adults (APA), 45, 87 Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline (APA), 44, 65, 87

Gurrera, R. J., 45 Gutheil, T. G., 3–4, 38, 78, 120 Hallucinations, 82 Harm, risk of, 6 Health Insurance Portability and Accountability Act (HIPPA), 64 Hearing/hearing date, 5–7 Heilbrun, K., 83, 101, 114–115, 118 Hidalgo, D., 108 Historical background, 3–5 Home. See Examinee’s home, as examination site Hopemont Capacity Assessment Interview (HCAI), 96 Hospital, as examination site, 57 Hurme, S. B., 7, 8 Hygiene/grooming, 83 Hypotheses generation/evaluation, 107–110 Identifying information, 75 Idiographic evidence, 103 Illinois, marriage rights in, 15–16 In re Estate of Katherine F. Washburn, 13 In re Last Will and Testament of Palecki, 29 Incapacity. See Mental incapacity Independent living, 17–18, 41–42 Independent Living Scales (ILS), 96 Informed consent, 68, 113 Inquiry, general domains of, 75–80 Intelligence testing, 88 Interpretation cross-examination, 104–105 data and opinion formation, 105–107 hypotheses generation/evaluation, 107–110 idiographic evidence, 103 nomothetic evidence, 103 scientific reasoning, 103–104 testing, 102–103 third-party information, 101–102 ultimate legal question, 104 Interpretive logic, 117–118 Interview, of examinee automobile driving, 78–79 behavioral response, 79 education, 76 examination circumstances, 79–80

Index 153 finances, 76–77 identifying information, 75 medical care, 78 orientation, 75 self-care, 77 social contact/leisure pursuits, 77 testamentary capacity, 77–78 voting, 79 Jeste, D., 43 Johansson, K., 38 Jolly, N., 38 Judicial Determination of Capacity of Older Adults in Guardianship Proceedings, 67 Karel, M. J., 44, 45 Karlawish, J. H., 14 Karp, N., 8 Kay, L., 38 Kenny Self-Care Evaluation (KSCE), 97–98 Kentucky assessment for disability, 26–28 conduct of evaluation, 19–20 disability identification, 21–22 Kisley, M. A., 43–44 Ky. Rev. Stat. }387.510, 22 Ky. Rev. Stat. }387.540, 20, 26 Larsen v. Larsen, 15–16 Legal constructs. See Functional legal constructs Legal procedures (basic) adjudication, 7 hearing, 5–7 petition, 3 Leisure pursuits/social contact, 77 Lichtenstein, E. C., 51 Location, of examination, 55–58 Lundberg, C., 38 MacArthur Competence Assessment Tool-Treatment (MacCat-T), 96 Macklin, R. S., 43 MAI (Philadelphia Geriatric Center Multilevel Assessment Inventory), 93–94 Major depressive episode criteria, 34–35 Mangraviti, J., 105 Manic episode criteria, 33–34

Marriage, 15–16, 36–37 Matter of Gordy, 18 Medical care, 17–18, 41–42, 78 Medical condition, 6 Medical doctors, consultation with, 99 Medical inability, 17 Melton, G. B., 93 Memory loss, short-term, 80 Mental flexibility, 81 Mental health concepts. See Forensic mental health concepts Mental incapacity, 18 Mental retardation diagnosis, 36–37 Millar, D. S., 47 Monitoring. See Guardianship monitoring Moye, J., 7, 45, 46–47, 92, 93 Mueser, K. T., 32 Multidimensional Functional Assessment Questionnaire (MFAQ), 92 Multidisciplinary consultation, 98–100 National College of Probate Judges evidence analysis, 6 guardianship monitoring, 8 National Conference of Commissioners on Uniform State Law, 4–5 National Guardianship Association, 12 National Highway Traffic Safety Administration (NHTSA), 16 National Voter Registration Act (1993), 13–14 Neuropsychological testing, 45–46, 88 New Hampshire, testamentary capacity in, 13 New Mexico, financial transactions in, 17 New York assessment for disability, 23–26 conduct of evaluation, 19 disability identification, 21 N.H. Rev. Stat. Ann. }464-A:26-a(III), 13 N.H. Rev. Stat. Ann. }464-A:9(IV), 13 Niederehe, G., 44–45 N.M. Code R. }45-5-101, 17 Nomothetic evidence, 103 Norman, S., 44–45 Null hypothesis testing model, 108 Nurses, consultation with, 99

154 Index Nursing home, as examination site, 57 N.Y. Ment. Hyg. Law }81.03, 21 N.Y. Ment. Hyg. Law }81.09, 19, 25–26

Psychologists, consultation with, 98–99 Psychosis, testing for, 90 Qualls, S. H., 44–45

Objective measures, 91 Occupational therapists, consultation with, 100 Ohio, voting rights in, 14 Ohio Rev. Code Ann. }3503.18, 14 Ohio Rev. Code Ann. }5122.301, 14 Ohio Rev. Code Ann. }5123.62(W), 14 Opinions, using data to form, 105–107 Orientation, 75 Otto, R. K., 83 Pa. Code }83.5, 37 Pape v. Byrd, 582 N.E.2d 164 (Ill. 1991), 16 Parry, J. W., 7, 51 Pennsylvania, automobile driving in, 17, 37 Periodic hearings, 10–11 Personality testing, 89–91 Petition/petitioners, 5, 59–60, 62 Petrila, P., 93 Philadelphia Geriatric Center Multilevel Assessment Inventory (MAI), 93–94 Physical Self-Maintenance Scale (PSMS), 98 Physician reporting, 16–17 Picarello, K., 83 Ponsford, A., 38 Poythress, N. G., 93 Practice standards, 12 Preparation, for evaluation. See also Ethical issues collateral issues, 60–65 counsel, presence of, 58–59 counsel, role of, 53–54 examination scheduling, 54–58 petitioners, presence of, 59–60 referral, 51–53 Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (Principles of Medical Ethics), 66 Probable cause, 5 Probate court, 5 Projective measures, 91 Psychological testing, 87–88

Reasonable basis, 5 Record keeping, 71–72 Record Keeping Guidelines (RKG), 71 Referral, 51–53 Regan, W. M., 33 Rehabilitation therapists, consultation with, 100 Relatives/friends, as collateral information source, 63 Renzaglia, A., 47 Report writing/testimony interpretive logic, 117–118 report details, 115–116 report organization, 111–115 test data, 116–117 testimonial issues, 118–121 ultimate legal issue, 121–122 Reporting enforcement, 9–10 Research, on assessment practice, 46–47 Respondent, 6 Review procedures, 10 Robinson, C. J., 4 Roman Empire, 4 Scheduling examinations authorization, 54 examinee’s presence, 54–55 location, 55–58 timing, 55 Scientific reasoning, 103–104 Segal, D., 44–45 Self-care, 77 Short-term memory loss, 80 Simon, E. S., 46 Slobogin, C., 83, 93 Social contact/leisure pursuits, 77 Social workers, consultation with, 99–100 Specialty Guidelines for Forensic Psychologists (SGFP) competency, 66 confidentiality, 69 hypotheses generation/evaluation, 107–108 identification of standard, 65 informed consent, 68 misuse/misapplications of data, 106

Index 155 record keeping, 71 report details, 115–116 test data reporting, 117 test data/security, 72 treatment vs. evaluation, 70 Staffing models (guardianship evaluation), 19–21 Standards of Practice (National Guardianship Association), 12 Status reports, 8–9 Statutory scheme comparisons assessment for disability, 23–29 conduct of evaluation, 19–21 identification of disability, 21–23 Substance abuse criteria, 39–40 Substance dependence criteria, 40–41 Substituted decision making, 3 Test security, 72 Testamentary capacity, 31–33, 77–78 Testimony. See Report writing/ testimony Testing, 102–103

Third-party information, 101–102 Treatment providers, as collateral information source, 62–63 Treatment vs. evaluation, 69–71 Ultimate legal question, 104, 121–122 Undue influence, 32–33 Uniform Guardianship and Protective Proceedings Act, 5 Validity statement, 113–114 Vermont assessment for disability, 28–9 conduct of evaluation, 20–21 disability identification, 22–23 Viitanen, M., 38 Voting/voting rights, 13–14, 33–36, 79 Vt. Stat. Ann. tit. 14,}3061, 20, 23 Vt. Stat. Ann. tit. 14,}3067, 28 Warren, J., 83 Wechsler Adult Intelligence Scale, 88 Wood, E., 7, 8 Wood, S., 7, 46

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About the Authors

Eric Y. Drogin, JD, PhD, ABPP, is a Fellow of the American Academy of Forensic Psychology, a Diplomate and former President of the American Board of Forensic Psychology, and a Diplomate of the American Board of Professional Psychology. Dr. Drogin is a former Chair of the American Psychological Association’s Committee on Professional Practice and Standards, a former Chair of the APA’s Committee on Legal Issues, a former Chair of the APA’s Joint Task Force with the American Bar Association, and a former President of the New Hampshire Psychological Association. He serves on the faculties of the Harvard Medical School (as a member of the Program in Psychiatry and the Law, and on the staff of the Forensic Psychiatry Service, in the Department of Psychiatry at Beth Israel Deaconess Medical Center), the Harvard Longwood Psychiatry Residency Training Program, and the University of Louisville School of Medicine. Dr. Drogin received his Doctor of Philosophy (PhD) degree in Clinical Psychology from Hahnemann University. Dr. Drogin is a Fellow of the American Bar Foundation. His current American Bar Association roles include Chair of the Committee on the Rights and Responsibilities of Scientists, Vice Chair of the Section of Science & Technology Law, and Commissioner of the Commission on Mental and Physical Disability Law. Dr. Drogin is a former Chair of the ABA’s Life & Physical Sciences Division, and a former Chair of the ABA’s Behavioral Sciences Committee. He serves on the adjunct faculty of the Franklin Pierce Law Center, participates as an Instructor in the Harvard Law School Trial Advocacy Workshop, and teaches for the University of Wales (Prifysgol Aberystwyth) as an Honorary Professor of Law. Dr. Drogin received his Juris Doctor (JD) degree from the Villanova University School of Law. Currently serving as Editor in Chief of the Journal of Psychiatry and Law, Dr. Drogin has authored or coauthored more than 150 157

158 About the Authors

legal and scientific publications to date, including the American Bar Association’s Criminal Law Handbook on Psychiatric and Psychological Evidence and Testimony (2000), Civil Law Handbook on Psychiatric and Psychological Evidence and Testimony (2001), Mental Disability Law, Evidence, and Testimony (2007), and Science for Lawyers (2008). He has lectured extensively throughout the United States and in England, Ireland, Wales, Canada, Australia, and Malaysia, and regularly presents continuing education seminars for attorneys and mental health professionals on such topics as forensic assessment, ethics, and professional development. Dr. Drogin’s multidisciplinary practice encompasses mental health law, expert witness testimony, and trial consultation. Curtis L. Barrett, PhD, ABPP, is a Fellow of the American Psychological Association, a Fellow of the American Academy of Forensic Psychology, and a Founding Fellow of the Academy of Cognitive Therapy. He serves on the faculty of the University of Louisville School of Medicine as a Professor Emeritus of Psychiatry and Behavioral Sciences. Dr. Barrett received his dual Bachelor of Arts (BA) degree in Naval Science and Psychology from Purdue University, and both his Master of Arts (MA) degree in Experimental Psychology and his Doctor of Philosophy (PhD) degree in Clinical Psychology from the University of Louisville. Dr. Barrett’s various board certifications include the American Board of Professional Psychology (Forensic Psychology), the American Psychological Association College of Professional Psychology (Substance Use Disorders), the American Compulsive Gambling Certification Board (Compulsive Gambling), and the National Council on Problem Gambling (Compulsive Gambling). Dr. Barrett is the author of the book Winners! The Story of Alcohol and Drug-Abuse Programs in the Horse Racing Industry and has authored or coauthored more than 100 book chapters, articles, brochures, and manuals on a broad range of topics in forensic psychology and the addictions. He serves on or advises several professional boards and is the recipient of numerous academic and industry honors, including the Association of Racing Commissioners International William H. May Award for Distinguished Service, the Jockey Guild Appreciation Award, and

About the Authors 159

service awards from the American Board of Professional Psychology, the American Board of Forensic Psychology, and the American Horse Racing Federation. Dr. Barrett maintains a national consulting practice that focuses on organizational and programmatic approaches to the evaluation and treatment of addictive and other behavioral disorders. He is also a frequent lecturer at national and international conferences, examples of which include American Psychological Association Annual Convention, the American Bar Association Annual Meeting, the International Conference on Gambling and Risk Taking, the National Conference on Problem Gambling, and the Race Track Chaplains of America Annual Training Conference.