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June 3, 2024

Unraveling the Mental Factors Courts Consider in Dementia Cases

I frequently get calls from families worried about a loved one with dementia making bad decisions. You can’t count on doctor’s letters alone. To set aside a transaction, this is what you need to prove:

California Probate Code Section 811 – Evidence supporting determination of unsound mind or lack of capacity to make decisions

(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, make a conveyance, marry, make medical decisions, execute wills, or execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit(s) and the decision or acts in question:

(1) Alertness and attention, including, but not limited to:

(A) Level of arousal or consciousness

(B) Orientation to time, place, person, and situation

(C) Ability to attend and concentrate

(2) Information processing, including, but not limited to:

(A) Short- and long-term memory, including immediate recall

(B) Ability to understand or communicate with others, verbally or otherwise

(C) Recognition of familiar objects and persons

(D) Ability to understand and appreciate quantities

(E) Ability to reason using abstract concepts

(F) Ability to plan, organize, and carry out actions in one’s own rational self-interest

(G) Ability to reason logically

(3) Thought processes. Deficits may be demonstrated by:

(A) Severely disorganized thinking

(B) Hallucinations

(C) Delusions

(D) Uncontrollable, repetitive, or intrusive thoughts

(4) Ability to modulate mood and affect. Deficits may be demonstrated by a pervasive, persistent or recurrent inappropriate state such as euphoria, anger, anxiety, fear, panic, depression, hopelessness, despair, helplessness, apathy or indifference.

(b) A deficit in the above mental functions may be considered only if the deficit, alone or combined with other deficits, significantly impairs the person’s ability to understand and appreciate the consequences of their actions regarding the type of act or decision in question.

(c) In determining if a person suffers from a mental deficit so substantial that they lack capacity to perform a certain act, the court may consider the frequency, severity, and duration of periods of impairment.

(d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks capacity to perform a certain act.

(e) This part applies only to the evidence presented to, and findings made by, a court determining a person’s capacity to perform a certain act or make a decision, including, but not limited to, making medical decisions. Nothing in this part shall affect the decision-making process set forth in Section 1418.8 of the Health and Safety Code, nor increase or decrease documentation burdens on, or potential liability of, health care providers who determine a patient’s capacity to make a medical decision outside the judicial context.

It isn’t easy, especially since so many people with dementia hide it so well. If you are worried, these are the things you should document (perhaps in a journal):

-Deficits in alertness, attention, and orientation

-Issues with information processing and memory

-Distorted thought processes like hallucinations or delusions

-Inability to moderate mood and emotions appropriately

Protecting a loved one with dementia isn’t easy, but I can help.

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Unraveling the Mental Factors Courts Consider in Dementia Cases

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Geisler Patterson Law


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