Decisional Capacity Evaluations
For attorneys and families when cognitive decline, neurological illness, or psychiatric symptoms raise questions about an important decision.
Capacity Is Decision-Specific
Capacity is not a single yes-or-no judgment about a person. Someone may be able to choose a health care agent but not manage a complex investment, or sign a simple will but not negotiate a contract. Capacity can also change over time, especially with fluctuating medical or psychiatric conditions.
A useful evaluation starts with the exact decision at issue and the legal standard that applies to it, then measures the abilities that decision requires. That is what makes the opinion useful in a legal file and defensible if it is challenged.
Decisions Evaluated
Wills and estate planning
Whether a person understands the act of making a will, the general nature and extent of their property, and who would ordinarily be expected to inherit, and can hold those facts together long enough to make a reasoned plan. Often requested before signing, when an attorney expects a later challenge.
Financial decisions and contracts
Whether a person can understand a specific transaction, such as a sale of property, a large gift, a loan, or a change to account ownership, appreciate its consequences, and reason about it. Includes questions about vulnerability to financial exploitation.
Powers of attorney
Whether a person understands what authority they are giving, to whom, and what it means for their own control over decisions, at the time they sign.
Medical treatment consent
Whether a person can understand information about a proposed treatment, appreciate how it applies to them, reason about the options, and communicate a choice. Requested by physicians, hospitals, and families when a patient refuses or cannot clearly consent.
Guardianship and less restrictive alternatives
Which decisions a person can still make and which they cannot. The answer helps the court and the family decide whether a full guardianship is needed or whether a limited guardianship, supported decision-making agreement, or power of attorney would be enough.
Retrospective capacity
Whether a person had capacity at a past date, typically when a will, deed, or contract is challenged after the person has died or declined. Based on medical records, witness accounts, and the documents themselves.
When These Questions Come Up
Referrals usually follow a change someone has noticed: missed bills, repeated questions, a new and influential acquaintance, a sudden change to a long-standing estate plan, or a hospitalization. Conditions that commonly raise capacity questions include:
- Alzheimer's disease and other dementias
- Mild cognitive impairment
- Stroke and other neurological illness
- Traumatic brain injury
- Parkinson's disease
- Serious mental illness, including psychotic and bipolar disorders
- Severe depression
- Intellectual disability
- Delirium or fluctuating cognition during medical illness
The evaluation separates the diagnosis from the decision. The question is not whether the person has a condition, but whether the condition prevents them from making this particular choice.
For Attorneys
A contemporaneous evaluation, completed close to the date a will, trust, or power of attorney is signed, is often the strongest protection against a later challenge. Retrospective evaluations are available for contested matters. Reports name the legal standard addressed, document the methodology and instruments used, and tie each opinion to the data that supports it. Referrals are accepted from either side, and Dr. Tedder does not tailor opinions to the retaining party.
For Families
Families usually reach out when they are worried about a parent or relative and are not sure what to do next. An evaluation can show which decisions the person can still make for themselves. That often points toward an option less restrictive than guardianship, such as a power of attorney or supported decision-making, while the person can still take part in choosing it.
The person being evaluated has to agree to take part unless a court orders the evaluation. It is often best to involve an elder law or estate attorney early so the evaluation answers the question the legal process will actually ask.
The Process
01. Clarify the decision
A call with the referring attorney or family to identify the exact decision at issue and the legal standard that applies to it. Capacity is assessed for a specific decision, not in general.
02. Review records
Medical, neurological, and psychiatric records, prior cognitive testing, and the relevant legal or financial documents.
03. Evaluate
Interview with the person, cognitive and neuropsychological testing as indicated, structured capacity instruments, and collateral interviews with family, physicians, or others who know the person's day-to-day functioning.
04. Report and testimony
A written report that answers the specific capacity question, explains the basis for the opinion, and states its limits. Testimony is available for deposition, hearing, or trial.
Instruments are selected for the decision at issue and may include the MacCAT-T, cognitive screening measures such as the MoCA, and fuller neuropsychological testing where the picture is complex. Evaluations can be completed in person at the Austin office or by telehealth where the referral question allows it.
Frequently Asked Questions
Does a dementia diagnosis mean a person lacks capacity?
No. A diagnosis does not answer the capacity question by itself. Many people with early dementia can still make some decisions, such as a simple will or a choice about medical care, while being unable to manage a complex financial transaction. Capacity depends on the specific decision and on the person's actual abilities at the time.
Who decides whether someone has capacity?
In legal matters, the court decides. In medical settings, the treating physician decides about consent for treatment. A psychological evaluation provides the clinical evidence those decisions rest on. Dr. Tedder offers an opinion about the person's abilities as they relate to the applicable standard; he does not make the legal determination.
Can a family member request a capacity evaluation?
Yes, but the person being evaluated must agree to participate unless the evaluation is ordered by a court. Families often start by speaking with an elder law or estate attorney, who can request the evaluation as part of the legal plan. Dr. Tedder is retained to give an independent opinion, not to support a particular outcome for any party.
Can capacity be evaluated after someone has died?
Yes. A retrospective evaluation reviews medical records, prior testing, witness accounts, and the documents in question to form an opinion about the person's capacity at the relevant date. These evaluations are common in will and trust contests.
Is a capacity evaluation the same as the physician's certificate required for guardianship?
No. A Texas guardianship application relies on a certificate of medical examination from a physician. A psychological evaluation can supplement it with detailed testing of which abilities are preserved, which can support a limited guardianship or an alternative to guardianship. Where intellectual disability is at issue, a licensed psychologist can provide the required determination.
How much does a decisional capacity evaluation cost?
Decisional capacity evaluations typically range from $3,500 to $5,000, depending on the decision at issue, records volume, and whether testing and collateral interviews are needed. Testimony is billed separately. All forensic work is private pay.
For other forensic evaluations, fees, and turnaround, see Forensic services. For cognitive testing outside a legal matter, see Neuropsychological assessment.
Discuss a Capacity Question
Contact us with the decision at issue, any deadlines, and the records available. We will tell you whether an evaluation is likely to answer the question and what it would involve.
Request a Consultation