(Best Practices For Forensic Mental Health Assessment) Eric Y. Drogin, Curtis L. Barrett-Evaluation For Guardianship (Best Practices For Forensic Mental Health Assessment) - Oxford University Press, U

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
2010
1
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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. ConservatorshipsUnited States. 2. Older peopleMental
healthUnited States. I. Barrett, Curtis L. II. Title.
KF481.5.D76 2009
346.73010 8dc22
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
vi
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 drivers 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
This page intentionally left blank
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.
ix
Contents
FOUNDATION
Chapter 1
The Legal Context
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
xi
FOUNDATION
The Legal Context
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
guardianthe 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
Foundation
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. 1718)
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 examinees 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 reformsparticularly in the latter half
of the 20th centurycommentators 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 courts attention. Some
states actually provide forms that an interested partythe petitionercan 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
petitioners name and address, the allegedly disabled persons 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 courtwhich is perhaps a specially designated
probate courtis convinced by the petition that there is
probable causeessentially, a reasonable basisto believe
that the allegedly disabled person may need a guardian, then it
chapter
Foundation
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,
personoften called the responalthough this standard is
dentis 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 individuals alleged
incapacities and will it improve, stay the same, or get worse?
2.
Cognitive Functioning. In what areas is the individuals 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

persons 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

individuals functioning? (pp. 1112)
The Legal Context 7
The hearing is conducted with both sides giving evidence before a

judge andin some statesa 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 judgeor jurywill 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.
chapter
Foundation
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. 3235)
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 INDIVIDUALS 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 courts
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 courts 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 GUARDIANS
REPORTING AND ACCOUNTING
The court will not be content to wait some 6 or 12 months before
learning whether its original hunch about the guardians ability to
serve as a supervisor and caregiver was accurate. The safety of the
disabled examinee has been the courts 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
chapter
10 Foundation
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 itor failing to respond
when a response is clearly warrantedengenders 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 actionsor inactionof 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 jurisprudenceand,

indeed, the full spectrum of legal proceedings addressing competencyis 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 examinees 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 literaturein addition to reproductions of relevant statutesthat
assists various parties and the public at large to understand guardianship and the ways in which the courts 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
counsels obligation to advocate for the examinees 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.
chapter
12 Foundation
ENCOURAGEMENT OF EFFORTS OF OTHER COMMUNITY

GROUPS AND AGENCIES THAT MONITOR THE INDIVIDUALS
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. 910).
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;
(c) can describe a rational plan for distributing that property; and
(d) can identify the natural objects of ones bounty, characterized
as the persons one would normally expect to inherit the possessions in question (Drogin, 2008).
New Hampshires 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 wards 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 individuals capacity to vote. (p. 1346)
Ohios electoral statutes, for example, direct each political subdivisions 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
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 persons 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
jurisdictions 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
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 drivers 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 persons 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 ones income and
resources, or medical inability to manage ones 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 Mexicos definition of functional
impairment is measured by a persons 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.
Delawares 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
wards 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).
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 Vermonta 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
evaluators 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 workeror 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 examinees 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)).
Kentuckys staffing modelin contrast to New Yorksis
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; shouldnt 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)).
Vermonts 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
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 taskdescribed laterof 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
examinees functional level, defined as the ability to provide for
personal needs and/or the ability with respect to property management, and also an examinees 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 examinees specific limitations may be. Particularly
refreshing is this schemes 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)).
Kentuckys 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 evaluationsto say nothing of the overworked district court judges who hear these cases within a broad mix of both
civil and criminal matters. Kentuckys distinction between full
and partial disability is client-focused and progressive.
VERMONT
In Vermonts 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
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 ones
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 ones 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 guardians
exercise of all the powers provided for by statute, and those persons who require only limited guardianship, such that they are
subject to a guardians exercise of some, but not all of the powers
provided for by statute (Vt. Stat. Ann. tit. 14, }3061(1)-(10)).
Vermonts total versus limited guardianship distinction
allows for the appropriate consideration of each individuals functional assets and liabilities; however, there is a lack of specified time
limits for what may be considered relevant evidencea circumstance that could exert either a positive or a negative effect on the
courts 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 examinees 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 includeamong othersthe 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 persons
condition, affairs and situation;
(e) Investigating and making a written report and
recommendations to the court, including the court
evaluators 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?
If the person alleged to be incapacitated cannot

come to the courthouse, would any meaningful
participation result from the persons 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 evaluators 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 persons 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 persons 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 persons 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 Yorks 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 evaluators 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
respondents disabilities, if any;
(b) Current evaluations of the respondents 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
respondents 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;
(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 respondents 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.
Kentuckys approach, like New Yorks, is highly detailed, but
more in terms of domains than specific behavioral requirements.
Requiring each reportas well as each evaluationto 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 respondents
disability, if any, and the level of the respondents
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)).
Vermonts 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
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
benefitsa 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.
Forensic Mental Health

Concepts
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
notiondisabled versus not disabledwithout 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,
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infected, loved at a distance, or deceived by spouse or

lover, or having a disease) of at least one months
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 examinees 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
Forensic Mental Health Concepts 33
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
testators 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
sinisteralbeit less clinically constructedissues 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 conditionbipolar disorder, manifested in some cases by alternation between manic episodes and
major depressive episodesas 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
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
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
chapter
36 Foundation
election dates. The waxing and waning of other mentioned diagnosessuch as substance abuse, hyperthyroidism, or bereavementmerit 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 persons 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.
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
examinees 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 persons history
as provided by self or others familiar with the persons 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
chapter
38 Foundation
of practice reasons, this sort of assessment should be given a wide

berth, even when the court would prefer to have the guardianship
examiners 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 patients 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 groupsincluding neuropsychologiststo 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 persons physical
ability to drive; (2) cognitive ability to understand not just driving
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 evaluators 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 Alzheimers disease
(AD) and Parkinsons 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

abuseor its longer term effectsmay 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
chapter
40 Foundation
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
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
examinees 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.
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
Alzheimers 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.
chapter
42 Foundation
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 Alzheimers 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.
Empirical Foundations
and Limits
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 ones affairs and perform everyday
tasks (pp. 339340).
Alzheimers 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
44 Foundation
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 Associations 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
practicesrelated 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 professionalsincluding, at times, attorneys, accountants, and even laypersonsto 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 845)
reported that they currently provided some type of psychological
service to older adults . . . 434 (51%) conducted assessments . . . the
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 clinicians 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
testsincluding such frequently employed measures as the Trail
Making Test, the Boston Naming Test, and components of the
Wechsler Adult Intelligence Scaleto 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
chapter
46 Foundation
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 concernsamong othersin 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,
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. 608609)
Concerning the last of these issues, Moye (2003) further
observed that limited orders are applied in less than 15% of casesa
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 regardfor 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).
chapter
APPLICATION
Preparation for the

Evaluation
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 evaluators 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 examinees
name. More important than the evaluators 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 issuessuch as the
specific nature of the examinees disability, the strengths and
51
52 Application
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 partys 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 evaluators 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 courts 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.
Preparation for the Evaluation 53
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

Counsels 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 evaluators 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 responsiveyet unswervingly professionalrapport with attorneys for all parties will often
do a great deal to facilitate the evaluation process.
The Evaluators 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 evaluators scientific opinions as opposed to counsels legal arguments. It
is appropriate to keep attorneys apprised of the progress or
chapter
54 Application
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 courts
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 handideally, a court ordercan
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 progressexaminations 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 Examinees Presence

The examinees abilityor lack thereofto set, remember, and
keep appointments is often a critical issue from the outset of the
guardianship evaluation. If the evaluators schedule is tight and the
examinees 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 examinees 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 examinees 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 evaluators 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 Alzheimers
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,
chapter
Examinees with
Alzheimers disease
may be affected by
sundowning, such that
their symptoms may be
exacerbated in the afternoon
and evening.
56 Application
transportation, and the examinees 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 EVALUATORS 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 examinees lack of orientation to place when
faced with an understandably unfamiliar setting.
THE ATTORNEYS OFFICE
On the positive side, it can be a refreshing benefit to allow counsel
to shoulder the burden of arranging for the examinees 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 attorneys opportunity to assert that this may have happened. These considerations apply to both attorney-requested and
court-ordered evaluations.
THE EXAMINEES 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 drivers license or a balanced checkbook, can
he produce it? The examinees 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
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 examinees 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 interfereor may be
interpreted in court as interferingwith 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 examinees 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
chapter
58 Application
examineesand 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 counsels involvement in the evaluation and
conducting the examination at counsels 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 attorneys 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 evaluators 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 examinees own
legal representative, at least initially, is often usefuland, on occasion, even necessaryto ensure the examinees willing and valid
participation in the forensic assessment process.
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 ones 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
recordinga 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 persons
presence during the task, even if the observer doesnt 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 petitionerstypically relatives or
close friends of the examineeare 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
60 Application
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 examinees participation.
Guardianship petitioners can also bring
needed medical documentation, confirm or deny some of the examinees 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 petitioners presence may be most problematic. These persons are much
less likely than attorneys to understand why certain types of questionsoften 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 questionswhat the doctors trying to ask is . . . or
doctor, he doesnt 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 familyand their unique potential contributions to the
guardianship evaluation. During the preparation stage, the evaluator can begin to determine the actual need for such information,
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 examinees 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 withor as an embedded part ofthe guardianship
chapter
62 Application
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 evaluators 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 courts 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 attorneys 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 evaluatoror perhaps counselto seek
the courts 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
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 examinees current will, as opposed to those who
stand to be disinherited.
OTHER SOURCES
These typically consist of institutionssuch 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 evaluators 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 tendencyprobably as a
byproduct of increased requests for
l Hospitals
production in criminal cases and civil
l Schools
entitlement disputesto dispose of
records after a few years.
chapter
64 Application
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
institutions 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
clinicians job easier but also to provide information that will better
inform the courts ultimate determination.
RELEASES
The examinees 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 examinees 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
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, examinees
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 Examiners 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
evaluationssuch as the relevant legal definition of disability in
this contextis 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
chapter
66 Application
BEST
PRACTICE
Be knowledgeable of statutory
and regulatory standards and
how they apply in your
particular jurisdiction.
American
Psychiatric
Associations
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
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 individuals
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
chapter
68 Application
or required by law . . . take reasonable steps

to protect the individuals 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 clients legal representative of
the nature of the anticipated forensic service before
proceeding, and if the clients 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 examinees 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
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)
examinations 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 consentor assentcomponent of the examination.
The notion that psychologists and psychiatrists should provide a
given person with either treatment or evaluationsbut not bothis
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,
chapter
70 Application
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 psychologists 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

BEWARE
necessary to serve as both the examinees 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
APAs 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
72 Application
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 evaluators 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 clinicians
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 certifiedthat is, only a
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.
chapter
Data Collection
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 examinees 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?
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76 Application
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 examinees 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 examinees 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
Data Collection 77
this arrangement developed and instituted? What are the examinees 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 examinees assets and future
financial prospects? How would he cope with various hypothetical
adjustments to either income or expenses?
SELF-CARE
What are the examinees 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 examinees 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 examinees 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 examinees 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
chapter
78 Application
be expected to benefit from the examinees 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
examinees 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 examinees 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 examinees current
place of residence? If not, where must the examinee go in order
to receive this care? How often? When was the examinees 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 examinees 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 drivers license? Can the examinee produce that
license and describe when and how it should be renewed? Can the
Data Collection 79
examinee identify and explain various signs, road markings, and

common rules of the road, as listed in the relevant jurisdictions
current drivers 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 ones nose, sticking out ones tongue, clapping ones
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 proceduresto the best of the examinees
ability to participateand conducted the bulk of the guardianship
examination, does the examinee recall the evaluators 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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80 Application
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.1416.
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. 1416), 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.
Data Collection 81
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 examinees
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 environmentand
conversational topicsby 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
chapter
82 Application
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.
Data Collection 83
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 foror has
been consigned toinadequate 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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84 Application
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
recordsobtainable
2. Nursing and Related
from different sources that occaCare
sionally are unaware even of each
others 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
examinees 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 judges 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
Data Collection 85
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 examinees outstanding
collegiate record or history of graduate professional training.
On occasionparticularly 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 examinees 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.
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 examinees 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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86 Application
another avenue for gaining a fresh perspective on the examinees

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
examinees psychiatric status. If the examinee was involved in a
determinate sentencing programsuch as those designed to
address anger management or sexual offender recidivismthen
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 membersincluding now-current candidates for
the role of guardianand 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
Data Collection 87
documentation, exploring the interactive human element of the

examinees life can lend a fresh and meaningful perspective on his
existence as a whole person. Friends and relativessome of whom
may have been an examinees direct caretakers in the pastcan
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 Associations 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).
chapter
88 Application
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
HalsteadReitan (Horton, 2008) or LuriaNebraska (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
sureswithin their situation3. Academic Testing
specific
limitsinclude
the
Cognitive Capacity Screening
Data Collection 89
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 examinees
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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90 Application
the Hamilton Depression Rating Scale (Furukawa, Toshi, Akechi,

Azuma, Okyama, & Higuchi, 2007), and the StateTrait 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 instrumentseach with their adherents and
detractorsthat 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
Data Collection 91
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 examinees 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 completingor disinclined to begin endorsingan objective measure comprising hundreds of separate written items. Other decisional
factors may include the examinees 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 finders
likely receptiveness to such techniques.
Forensic Testing
Some measures directly address specifically
forensic elements of an examinees status,
as opposed to identifying purely clinical
chapter
BEST
PRACTICE
Consider the appropriateness
of projective measures for a
specific case and be ready to
present the relevant research
to the fact finder.
92 Application
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. 6267). 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 examinees 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 diagnosedformally or
Data Collection 93
preliminarilywith Alzheimers 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 examinees 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 examinees
chapter
94 Application
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 examinees
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. 302305).
Data Collection 95
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, & OConnell, 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 subjects 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
chapter
96 Application
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 Alzheimers 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. 13291330).
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
TOOLTREATMENT
The MacArthur Competence Assessment ToolTreatment
(MacCat-T) is based on legal standards of competence such as
understanding reasoning, appreciation, and expressing a choice
Data Collection 97
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
Medical Doctors
Nurses
Social Workers
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 patients 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,
chapter
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
individuals test performance
against even age-adjusted
norms can be misleading if
the individuals 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 patients
functional status in terms of dependence,
asking evaluators to rate the examinees 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 teamsfor 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, cognitivebehavioral,
and client-centered). In some jurisdictions, persons allowed by
Data Collection 99
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 ones 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 examinees 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 examinees several disease processes may have the most salient effect on current cognitive
deficitsand the prognosis for recovery in light of various available
choices of treatmentthen 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 examinees 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
chapter
100 Application
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 examinees 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
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
102 Application
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
examinees 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
Interpretation 103
is anchored in more than clinical observations and allegations of

inconsistencies in the examinees responses to various inquiries.
Idiographic Evidence
Insight into the individual examinees personal, subjective experience should be reflected at every level of the guardianship evaluators interpretive approach. Guardianship evaluations ultimately
hinge on the examinees 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 examinees personal strengths and weaknesses.
Nomothetic Evidence
Nomothetic evidence is observable and factually based. The other
side of the idiographic coin involves anchoring the guardianship
evaluators 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 validand correspondingly less convincingwhen there are arguably valid differential diagnostic options and when the severity of the clinical
chapter
104 Application
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. 136137).
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
Interpretation 105
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.
chapter
106 Application
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 evaluators 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
Interpretation 107
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 evaluators 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 psychologistwith an
educational grounding in statistical analysiswho 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
forand limitations
Guidelines for Forensic Psychologists, the
ofassessment instruments
used with older adults.
Committee on Ethical Guidelines for
108 Application
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. 5759).
Although a step-by-step review of countering arguments is
beyond the scope of this book, guardianship evaluators should
remain sufficiently fluent in statistical theoryand sufficiently capable of explaining such notions to judges and juriesto support
their forensic assertions. As noted by Drogin (2000a):
Lawyers often find that their psychologist experts were indeed
educated in these principlestwenty 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. 312313)
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
Interpretation 109
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 evaluators 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 chapters 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 timeor
6
chapter
third-party cooperationfor 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 opinionor, 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
examinees situation changes subsequent to the proffer of a report
and courtroom testimonya common occurrencethen there
may be no way to determine just how critical the altered factor
may have been for the guardianship evaluators ultimate formulation. Should the examinee now be considered disabled when he
was not beforeor 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.
Report Writing and

Testimony
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
112 Application
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
Report Writing and Testimony 113
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 examinees abilityor lack thereofto 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 successa common phenomenon in guardianship evaluations.
Validity Statement
This device is gaining increased traction in forensic reports of all
types. Forensic clinicians are awarejust as readers are often unawarethat 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
chapter
114 Application
contacts and documentation affect the evaluators 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 evaluators 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 evaluators credentials, the specified legal
standard the report is designed to address, a separate list of documents reviewedlegal, medical, educational, and employment
and a separate list of attempted and achieved collateral contacts.
More generally, Heilbrun, Grisso, and Goldstein (2009) advised
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
reports narrative flow and may confuse or distract the reader with
extraneous information. On the other hand, providing too little
information may erode the readers confidence in the guardianship
report by creating the impression that the evaluators 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 clinicians 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
chapter
116 Application
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
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, andabsent
the occasional hearsay objectionit 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 evaluators 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
chapter
118 Application
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 examinees 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 assessmenthighlighted several
1. Relevance
Is the anticipated testimony of actual value to ones

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 diagnosesif any, given the functional

nature of most guardianship evaluationscomport 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 experts 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,
chapter
120 Application
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. 274279, 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 Brodskys
(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

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 lawyers 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 reportsand on the witness standthat, for
example, an examinee is disabled and in need of the appointment of a guardian, without counsel having to fear an evidencebased objection.
chapter
122 Application
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 chapterparticularly, those involving the description of interpretive logicwill 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.
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140 Tests and Specialized Tools
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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)
Tests and Specialized Tools 141
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, OConnor,
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)
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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.
145
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 individuals consent for another person to
engage in intervention that would otherwise constitute an
invasion of the individuals 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 examinees 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 examinees 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 Alzheimers disease.
testamentary capacity: the ability to execute a will in a competent
fashion, determined with reference to such factors as knowing the
extent of ones estate, knowing who would be expected to receive
ones estate, and being able to devise a rational plan of distribution.
undue influence: when a persons 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, 3839
financial capacity, 39
Academic testing, 89
Addictions testing, 9091
Adjudication, 7
Adult Functional Adaptive Behavior
Scale (AFABS), 93
Affective conditions testing, 8990
Age/aging, 4344
Aid to Capacity Evaluation (ACE), 94
Alzheimers disease
criteria, 4142
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),
3839, 92
American Bar Association Commission
on Law and Aging
clinicians experience/knowledge, 45
evidence analysis, 6
forensic opinion formation, 101,
104105
guardianship monitoring, 8
report organization, 111
American Psychiatric Association, 38
American Psychological Association
(APA)
examiners competency, 65
financial capacity, 39
forensic testing, 92
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
misuse/misapplications of data,
105106
record keeping, 71
report details, 115
test data reporting, 116, 117
test data/security, 72, 117
Appelbaum, P. S., 34, 38, 78
Are` an, P., 43
Armesto, J. C., 45, 46
Assent vs. consent, 6768
Assessment for disability, 2329
Assessment of Older Adults with
Diminished Capacity, 6667
Assessment practice research,
4647
Assumptions, expressing factual,
105106
Attorneys office, as examination site.
See also Counsel, 56
Authorization of examinations, 54
Automobile driving, 1617, 3739,
7879
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, 8283
Board certification, 7273
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, 8082
Cognitive testing, 8889
Coleman, N., 7, 51
Collateral information
availability of, 6163
need for, 61
strategies for obtaining, 6465
Collateral information sources
correctional, 86
educational, 8485
friends/relatives, 8687
legal and forensic, 86
medical care, 8384
military, 8586
occupational, 85
Communication problems, 81
Community Competency Scale (CCS),
92
Community group participation, 12
Competency, of examiner, 6567
Competency Interview Schedule (CIS),
95
Complaint investigation, 10
Comprehension problems, 81
Computerized assessment, 46
Confidentiality, 6869
Consent vs. assent, 6768
Conservator, 3
Conservatorship, 17
Cornwell, R. E., 4344
Counsel
as collateral information source, 62

presence of, 5859
role of, 5354
Counsels office. See Attorneys office,
as examination site
Court action/monitoring. See
Guardianship monitoring
Court orders, 64
Courthouse, as examination site, 5758
Courts, as collateral information source,
6162, 64
Cross-examination, 104105
Cummings, J. L., 46
DAFS (Direct Assessment of Functional
Status), 9293
Data, and opinion formation, 105107
Data collection
behavioral signs, 8283
cognitive signs, 8082
cognitive testing, 8889
collateral information sources, 8387
emotional signs, 82
forensic testing, 9198
general domains of inquiry, 7580
multidisciplinary consultation,
98100
personality testing, 8991
psychological testing, 8788
Dattilio, F. M., 7273
Davis, H. P., 4344
Decision Assessment Measure (DAM),
9596
Decision-Making Instrument for
Guardianship (DIG), 93
Del. Code Ann. tit. 29 }3901(a)(2), 18
Delaware, guardianship statutes, 18
Delusion/delusional disorder, 3132,
82, 90
Demographic information, 111
Department of Motor Vehicles (DMV),
16
Depp, C., 43
Direct Assessment of Functional Status
(DAFS), 9293
Disability, assessment for, 2329, 91
Disability identification, 2123
Disorientation, 8182
District of Columbia
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
Ethical issues
board certification, 7273
confidentiality, 6869
consent vs. assent, 6768
examiners competency, 6567
record keeping, 7172
test security, 72
Ethical Principles of Psychologists
and Code of Conduct (APA Ethics
Code)
competency, 66
confidentiality, 68
misuse/misapplications of data,
105106
record keeping, 71
report details, 115
test data reporting, 116, 117
test data/security, 72, 117
Ethnic group data, 44
Evaluation, preparation for. See also
Ethical issues
collateral issues, 6065
counsel, presence of, 5859
counsel, role of, 5354
examination scheduling, 5458
petitioners, presence of, 5960

referral, 5153
Evaluation vs. treatment, 6971
Evaluator characteristics, 4445
Evaluators 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, 7980
Examinee characteristics, 4344
Examinee interview, 7580
Examinees home, as examination site,
5657
Factual assumptions, expressing, 105106
Federal Rule of Evidence (FRE) 704, 121
Fillit, H. M., 46
Finances, 7677
Financial Capacity Instrument
(FCI), 96
Financial transactions, 17, 3941
Fleming, R. B., 4
Forensic assessment instruments (FAIs),
92
Forensic clinical interpretation. See
Interpretation
Forensic mental health concepts
financial transactions, 3941
independent living/medical care,
4142
marriage, 3637
testamentary capacity, 3133
voting rights, 3336
Forensic Psychologists. See Specialty
Guidelines for Forensic
Psychologists (SGFP)
Forensic testing, 9198
Foster, S. M., 4344
Friends/relatives, as collateral
information source, 63
Functional impairment, 17
Functional Independence Measure
(FIM), 94
Functional legal constructs
financial transactions, 17
independent living/medical care,
1718
152 Index
Functional legal constructs (Continued )
marriage, 1516
voting rights, 1314
Functioning, enhancement of, 6
Funding, for guardianship monitoring,
11
Gallagher-Thompson, D., 4445
Gavisk, M., 43
Goldstein, A. M., 101, 114115
Gomez, J., 108
Gordon, S. M., 33
Greenburg, S. A., 83
Greene, E., 43
Grisso, T., 92, 101, 114115
Grooming/hygiene, 83
Gross mismanagement, 17, 23
Guardianship, as legal process, 3
Guardianship evaluation comparisons
assessment for disability, 2329
conduct of evaluation, 1921
identification of disability, 2123
Guardianship evaluators, characteristics
of, 4445
Guardianship examinations
assessment practice research, 4647
computerized assessment, 46
evaluator characteristics, 4445
examinee characteristics, 4344
neuropsychological testing, 4546
Guardianship monitoring
community group participation, 12
complaint investigation, 10
court action, 7
ethical guidelines, 11
funding, 11
overview of practices, 8
periodic hearings, 1011
reporting enforcement, 910
reporting/accounting deadlines, 9
review procedures, 10
Standards of Practice, 12
status reports, 89
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., 34, 38, 78, 120
Hallucinations, 82
Harm, risk of, 6
Health Insurance Portability and
Accountability Act (HIPPA), 64
Hearing/hearing date, 57
Heilbrun, K., 83, 101, 114115, 118
Hidalgo, D., 108
Historical background, 35
Home. See Examinees 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,
107110
Identifying information, 75
Idiographic evidence, 103
Illinois, marriage rights in, 1516
In re Estate of Katherine F. Washburn,
13
In re Last Will and Testament of
Palecki, 29
Incapacity. See Mental incapacity
Independent living, 1718, 4142
Independent Living Scales (ILS), 96
Informed consent, 68, 113
Inquiry, general domains of, 7580
Intelligence testing, 88
Interpretation
cross-examination, 104105
data and opinion formation, 105107
hypotheses generation/evaluation,
107110
idiographic evidence, 103
nomothetic evidence, 103
scientific reasoning, 103104
testing, 102103
third-party information, 101102
ultimate legal question, 104
Interpretive logic, 117118
Interview, of examinee
behavioral response, 79
education, 76
examination circumstances, 7980
Index 153
finances, 7677
identifying information, 75
medical care, 78
orientation, 75
self-care, 77
social contact/leisure pursuits, 77
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),
9798
Kentucky
disability identification, 2122
Kisley, M. A., 4344
Ky. Rev. Stat. }387.510, 22
Ky. Rev. Stat. }387.540, 20, 26
Larsen v. Larsen, 1516
Legal constructs. See Functional legal
constructs
Legal procedures (basic)
adjudication, 7
hearing, 57
petition, 3
Leisure pursuits/social contact, 77
Lichtenstein, E. C., 51
Location, of examination, 5558
Lundberg, C., 38
MacArthur Competence Assessment
Tool-Treatment (MacCat-T), 96
Macklin, R. S., 43
MAI (Philadelphia Geriatric Center
Multilevel Assessment Inventory),
9394
Major depressive episode criteria, 3435
Mangraviti, J., 105
Manic episode criteria, 3334
Marriage, 1516, 3637

Matter of Gordy, 18
Medical care, 1718, 4142, 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, 3637
Millar, D. S., 47
Monitoring. See Guardianship
monitoring
Moye, J., 7, 45, 4647, 92, 93
Mueser, K. T., 32
Multidimensional Functional
Assessment Questionnaire
(MFAQ), 92
Multidisciplinary consultation, 98100
National College of Probate Judges
National Conference of Commissioners
on Uniform State Law, 45
National Guardianship Association, 12
National Highway Traffic Safety
Administration (NHTSA), 16
National Voter Registration Act (1993),
1314
Neuropsychological testing, 4546, 88
New Hampshire, testamentary capacity
in, 13
New Mexico, financial transactions in,
17
New York
N.H. Rev. Stat. Ann. }464-A:26-a(III),
13
N.H. Rev. Stat. Ann. }464-A:9(IV), 13
Niederehe, G., 4445
N.M. Code R. }45-5-101, 17
Nomothetic evidence, 103
Norman, S., 4445
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, 2526
Psychologists, consultation with, 9899

Psychosis, testing for, 90
Qualls, S. H., 4445
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, 105107
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, 1011
Personality testing, 8991
Petition/petitioners, 5, 5960, 62
Petrila, P., 93
Philadelphia Geriatric Center Multilevel
Assessment Inventory (MAI),
9394
Physical Self-Maintenance Scale
(PSMS), 98
Physician reporting, 1617
Picarello, K., 83
Ponsford, A., 38
Poythress, N. G., 93
Practice standards, 12
Preparation, for evaluation. See also
Ethical issues
collateral issues, 6065
counsel, presence of, 5859
counsel, role of, 5354
examination scheduling, 5458
petitioners, presence of, 5960
referral, 5153
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, 8788
Reasonable basis, 5
Record keeping, 7172
Record Keeping Guidelines (RKG), 71
Referral, 5153
Regan, W. M., 33
Rehabilitation therapists, consultation
with, 100
Relatives/friends, as collateral
Renzaglia, A., 47
Report writing/testimony
interpretive logic, 117118
report details, 115116
report organization, 111115
test data, 116117
testimonial issues, 118121
ultimate legal issue, 121122
Reporting enforcement, 910
Research, on assessment practice, 4647
Respondent, 6
Review procedures, 10
Robinson, C. J., 4
Roman Empire, 4
Scheduling examinations
authorization, 54
examinees presence, 5455
location, 5558
timing, 55
Scientific reasoning, 103104
Segal, D., 4445
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, 99100
Specialty Guidelines for Forensic
Psychologists (SGFP)
competency, 66
confidentiality, 69
hypotheses generation/evaluation,
107108
misuse/misapplications of data, 106
Index 155
record keeping, 71
report details, 115116
test data reporting, 117
test data/security, 72
Staffing models (guardianship
evaluation), 1921
Standards of Practice (National
Guardianship Association), 12
Status reports, 89
Statutory scheme comparisons
identification of disability, 2123
Substance abuse criteria, 3940
Substance dependence criteria,
4041
Substituted decision making, 3
Test security, 72
Testamentary capacity, 3133,
7778
Testimony. See Report writing/
testimony
Testing, 102103
Third-party information, 101102

Treatment providers, as collateral
Treatment vs. evaluation, 6971
Ultimate legal question, 104, 121122
Undue influence, 3233
Uniform Guardianship and Protective
Proceedings Act, 5
Validity statement, 113114
Vermont
Viitanen, M., 38
Voting/voting rights, 1314, 3336,
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
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 Associations
Committee on Professional Practice and Standards, a former Chair
of the APAs Committee on Legal Issues, a former Chair of the APAs
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 ABAs Life &
Physical Sciences Division, and a former Chair of the ABAs
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

Associations 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. Drogins 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. Barretts 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.

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EVALUATION FOR

BEST PRACTICES IN FORENSIC MENTAL HEALTH ASSESSMENT

Series Advisory Board

Titles in the Series

Copyright 2010 by Oxford University Press, Inc.

About Best Practices in Forensic Mental

About Best Practices in Forensic Mental Health Assessment

About Best Practices in Forensic Mental Health Assessment vii

book reviews appropriate methodology that experts should consider

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The Legal Context

Forensic Mental Health Concepts

Empirical Foundations and Limits 43

Preparation for the Evaluation

Report Writing and Testimony

Tests and Specialized Tools

Key Terms 147

About the Authors 157

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The Legal Context

of decision-making over the personal affairs of the ward, such as

Guardianship is probably the most ancient aspect of mental

By the time of the 16th century, many of the modern trappings

The Legal Context 5

the revised Uniform Guardianship and Protective Proceedings Act

Basic Legal Procedure In Guardianship

assigns the case to a prosecutor and

Cognitive Functioning. In what areas is the individuals decision-making and

Everyday Functioning. What can the individual do and not do in terms of

Consistency of Choices With Values, Patterns, and Preferences. Are the

Risk of Harm and Level of Supervision Needed. What is the level of

Means to Enhance Functioning. What treatments might enhance the

The Legal Context 7

The hearing is conducted with both sides giving evidence before a

Overview of Guardianship Monitoring Practices

Steps to Enhance Guardianship Monitoring

The Legal Context 9

The requirement of a status report serves a dual purpose. On the

The Legal Context 11

course of time. A central tenet of guardianship jurisprudenceand,

ENCOURAGEMENT OF EFFORTS OF OTHER COMMUNITY

Functional Legal Constructs

The Legal Context 13

the capacity to execute

Although the right to vote is perhaps the

a will, and if so, whether

Voter Registration Act of 1993 provides that the name of a

The Legal Context 15

In one commonly cited case, a Maine federal district court in

Acknowledging the standard

(AAMVA) recently began a project, in cooperation from the

The Legal Context 17

done by mail, and significant time can elapse between reporting

In Pennsylvania, for example, the Medical Advisory Board is

Independent Living and Medical Care

lives (Batavia, 2003, p. 348). Such progress does not obscure

The Legal Context 19

Comparison of State Statutory Schemes

Who Conducts the Guardianship Evaluation?

State statutory schemes for

psychologist, and a social workeror in this third instance, an