Expert View Even Experienced Lawyers Make These Mistakes

LibraryAlzheimer's and the Practice of Law: Counseling Clients with Dementia and Their Families (ABA) (2013 Ed.)

Expert View Even Experienced Lawyers Make These Mistakes

Dr. Sanford Finkel is both a clinical professor of psychiatry at the University of Chicago Medical School and an active clinician. He has been retained as an expert consultant who has reviewed and testified in a wide variety of court cases involving contested wills, testamentary capacity, and undue influence.

Q: What mistakes do attorneys make when trying to determine

capacity?

A: First of all, lawyers must realize that, with Alzheimer's disease, a person who loses his cognitive capacity and functional abilities doesn't always lose his social abilities. In a superficial conversation, the person can respond and, on the surface, connect. But if you ask him detailed questions, he may say, "My daughter will answer that." He will defer or deflect the question. Or he may answer your question with a question. In other words, he will give you something with a little piece of your question—two words maybe—or he will answer a question you haven't asked.

People may stay alert and remain pleasant until very late in their illness. Some lawyers (as well as others) may be very ready to believe anyone who is socially pleasant. Lawyers like people who are alert and not difficult. People stay alert until very late in the illness.

Lawyers often ask yes or no questions. When dealing with a controversial will, the defense may arrange for videos in an attempt to prove that a person has capacity. I remember one situation where the testatrix was leaving her assets to charity. The lawyer brought her husband to the nursing home to film the signing. She asked the testatrix, "You do want to leave your money to this person, right?" The testatrix replied, "Yes." The next question from the attorney was, "You don't want to leave your money to these people here, do you?" The testatrix answered, "No." The lawyer asked, "It is July 8, 2007, isn't it?" The testatrix answered, "Yes."

The...

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