The Folstein Mini-Mental State Exam: Just How Useful is it for Assessing Capacity, California Trusts & Estates Quarterly, Issue 1, Volume 24, 2018

By Lisa M. Gibbs, M.D., Christopher Carico, Esq. and Lilian H. Walden, Esq.

Reprinted with permission of the State Bar of California, Trusts and Estates Section, from Volume 24, Issue 1, (2018) of the California Trusts and Estates Quarterly.

INTRODUCTION

Despite a lack of mental health training, trust and estate attorneys often have to assess the cognitive capacity of clients and potential clients. Making an initial assessment is sometimes unavoidable. Before any will or trust is drafted, gift is made, or financial elder abuse litigation is started, the thoughtful attorney must answer two threshold questions: Does the client have the capacity to make this decision? Is the client making the purported decision voluntarily or as a result of undue influence?

Where capacity is unclear and money is no object, the experienced attorney will request a neurocognitive assessment and written report from a mental health professional, frequently a psychiatrist, neurologist, geriatrician, or neuropsychologist, to determine the degree of the client’s impairment and level of capacity. But comprehensive neurocognitive assessments are expensive and can make the entire estate planning project unaffordable for some clients and potential clients. The client who comes to the attorney for a “simple” trust amendment may balk when told he or she will need a comprehensive neurocognitive assessment costing several thousand dollars. In such cases, can or should the attorney rely on his or her own ability to assess capacity using inter-personal interview techniques honed over years of practice? Are there situations where the attorney should consider administering cognitive screening tools, like the Mini-Mental State Exam? How reliable is the score from the most recent Mini-Mental State Exam administered during the client’s 15-minute appointment with his or her primary care physician for assessing capacity? With an aging population, these questions are not likely to go away soon.

This article explores some of the benefits and limits of cognitive screening tools for determining testamentary capacity and susceptibility to undue influence. Its primary focus is the Folstein Mini-Mental State Exam (MMSE), not because it is the only cognitive screening tool, but because it is the most widely used. The MMSE tests a broad range of cognitive functions but omits certain mental processes that are often critical for determining testamentary capacity. Since the MMSE score may be the only cognitive assessment found in the client’s medical records, a basic understanding of the tool and particularly the cognitive processes that it does and does not cover is important for both the planner and the litigator. This article breaks down testamentary capacity into its cognitive components and then identifies those mental processes essential for testamentary capacity not assessed by the MMSE. The article concludes with a discussion of other cognitive screening tools that may be helpful in conjunction with, or as a replacement to, the MMSE to assist the clinician or practitioner in assessing capacity.

I. BACKGROUND

A. Trust and Estate Attorneys Cannot Avoid Assessing Cognitive Capacity

Trust and estate attorneys often need to make an initial assessment of a client or potential client’s capacity while having no formal training in assessing capacity. Capacity evaluations are not part of any law school’s regular curriculum, although many law schools now offer elder law courses. Current statistics estimate that approximately 15% of the U.S. population is over age 65.¹ Twenty-five percent to 40% (depending on the studies) ofthose elders have some form of cognitive impairment, whether it is mild cognitive impairment, mild dementia, moderate dementia, or severe dementia.² (While Diagnostic and Statistical Manual of Mental Disorders 5^th edition (DSM-5) replaced the term “dementia” with the term “major neurocognitive disorder,” and the term “mild cognitive impairment” with the term “mild neurocognitive disorder,” this article will continue to use the earlier terms dementia and mild cognitive impairment due to their widespread familiarity.³) Given these statistics, a fair number of elderly clients are going to have some form of cognitive impairment when consulting their attorney for legal advice relating to the creation or change of their estate plan.

B. While Attorneys Are Not Liable for Malpractice for Incorrectly Assessing a Client’s Testamentary Capacity, Attorneys May Face Financial and Ethical Problems for Contracting with a Party who Lacks Capacity

Under current law, an attorney who fails to assess a client’s testamentary capacity accurately is not liable for malpractice to the beneficiaries negatively affected by the invalidity of the testamentary instrument.⁴ California courts have reasoned that placing such a burden on the attorney would interfere with the attorney’s ethical duties to carry out the intentions of his client, create an undue burden on the attorney, cause a chilling effect on the preparation of testamentary instruments for impaired clients, and turn the presumption of a testator’s capacity on its head.⁵

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Nonetheless, an attorney charging substantial fees to a client who ultimately is determined to lack capacity could face financial and ethical problems with the State Bar, including repayment of fees and discipline for failing to perform services competently if the incapacity was easily discoverable through basic questioning of the client.⁶ In more egregious cases where the fees are unconscionable in proportion to the services rendered and the attorney never bothered to meet the client face to face, claims of financial elder abuse against counsel would seem available. As a practical matter, in a will or trust contest, no drafting attorney with any regard for his or her reputation wants to testify at trial that he or she did almost nothing to determine the client’s capacity before taking the fee and performing services for the client.

C. Probate Litigators Are Often Faced with Assessing Capacity Both for Practical and Legal Reasons

Before taking a case, probate litigators often have to assess whether there are good faith claims that the elder may have lacked capacity or been susceptible to undue influence at the time of execution of the donative instrument. The attorney’s ballpark assessment is usually made in hindsight, typically several months after the elder has passed away. The retention of a forensic psychiatrist as a consultant or expert witness generally happens later in the process, once the medical records of the decedent are produced under subpoena and available for review. When financial elder abuse has gone on for a number of years, a threshold question for the elder abuse litigator is whether the statute of limitations was tolled due to the elder’s lack of legal capacity.⁷ If the elder is still living and seeks recovery of his or her assets directly and not through a conservator, agent, or trustee, the litigator will need to determine whether the elderly client has the present capacity to contract. The test for capacity is always decision and situation-specific. When it comes to hiring counsel, the test is not whether the client has capacity to transact all forms of business or execute all contracts, but whether the client has the cognitive capacity at the present time to execute the contract before the client and to understand the legal rights associated with that contract.⁸

D. Attorneys Need Awareness of a Client’s Cognitive Function for More than Just Determining Capacity

For estate planning attorneys and litigators, the issue of cognitive impairment does not stop with assessing capacity. Clients with mild cognitive impairment will often meet the requirements for testamentary capacity but nonetheless be highly susceptible to fraud and undue influence. Cognition is an active area of study, especially as it relates to financial fraud. Studies suggest that a sizeable portion of elderly individuals without a diagnosis of dementia or cognitive impairment may suffer from a decline in the prefrontal processes that impacts their ability to assess risk and reward and maintain healthy doubt or skepticism.⁹ This, in turn, makes them more susceptible to fraud and undue influence in their decision-making, which is especially concerning given that some research suggests that after age 60, financial literacy scores may decline by about one percent with each passing year.¹⁰

II. ASSESSING TESTAMENTARY CAPACITY

A. The Legal Standard for Testamentary Capacity

Under California law, a person has the capacity to make a will or execute simple trust amendments if the person can understand the nature of the testamentary act, understand and recollect the nature and situation of his or her property, and remember and understand his or her relationship to living descendants, spouse, parents, and other persons whose interests are affected by the will.¹¹ The testator also must be free from paranoia, hallucinations, or delusions (or other mental disorders) that would cause the testator to leave his or her assets in a way which, but for the paranoia, hallucinations, or delusions, he or she would not have done. The fact that the testator may suffer from schizophrenia or bipolar disorder with psychotic features is not dispositive. The test is whether the paranoia, delusions, or hallucinations caused a different will to be drafted than the testator would have intended in their absence, and the testator’s diagnosis is not the controlling factor.¹²

Recent case law holds that the standard under Probate Code section 6100.5 applies not only to wills, but also to simple trust amendments.¹³ When the testamentary instrument is more complex than a will or simple trust amendment, the sliding-scale for capacity in Probate Code section 812 applies.¹⁴ More complex testamentary dispositions measured under the section 812 sliding-scale approach require the equivalent of a capacity to contract, meaning “the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant . . . (a) [t]he rights, duties, and responsibilities created by, or affected by the decision; (b) [t]he probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision; and (c) [t]he significant risks, benefits, and reasonable alternatives involved in the decision.”¹⁵ Probate Code section 812 expressly provides that, in the context of testamentary capacity, the section 812 analysis is subordinate to the analysis under section 6100.5; however, there is a body of authority that testamentary capacity may be evaluated under either section with the two approaches being substantially similar although expressed differently.¹⁶ The tests under section 6100.5 and section 812 are both situation-specific, dependent on the complexity of the testator/settlor’s dispositive plan and the complexity of the testator/settlor’s personal circumstances.

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When the legal elements of testamentary capacity under section 812 are put side by side with those under section 6100.5, the required cognitive skills under the two sections are remarkably similar:

As one article in the Journal of Forensic and Legal Medicine puts it:

The threshold for testamentary capacity relates to the complexity of the situation. For example, in the straight-forward circumstances of a widowed man with an estate that includes only his own home and minimal savings, and who has one son who has been his main [care provider] for many years, the threshold of mental capacity to make a valid will would be relatively low. In contrast, a person who owns several properties and businesses, was previously divorced and then remarried and has several children with both partners, with serious relationship difficulties between siblings, the threshold mental capacity required to negotiate this more complex situation and produce a valid will is deemed to be higher than in more straightforward circumstances. In summary, practitioners must provide considered opinion as to whether the testator has task-specific capacity to execute a valid will within his unique set of situation-specific circumstances.¹⁷

B. Mental Function Components of Testamentary Capacity

The interplay of mental functions involved in exercising testamentary capacity is complex and not easily divisible. The testamentary act requires both basic and higher level cognitive functions. The higher level functions, frequently referred to as “executive functions,” such as planning, reasoning, and problem solving, simultaneously use more basic functions like working memory, attention, and inhibition to achieve the desired goal.¹⁸ Depending on the client’s specific situation, the mental processes generally required for a testator to have testamentary capacity include the following:

1. Long-term and short-term semantic memory (i.e., general facts, meanings, concepts, and knowledge about the external world acquired by the testator). General knowledge, stored in memory, allows the testator to understand the meaning and effect of the testamentary act (i.e., it disposes of the testator’s assets on death, can be changed by the testator before death, and appoints an executor to make the distributions), the ability to recognize and identify his or her family members and loved ones, and the extent of his or her assets.
2. Long-term and short-term autobiographical or episodic memory (i.e., memory of specific events in time, along with associated emotions and other contextual knowledge). Memory of important moments and personal events, including the associated emotions, enable the testator to remember his or her important relationships, the testator’s closeness to particular individuals or conflicts with other individuals, any previous gifts or estate plans done by the testator, his or her prior beliefs/values, and the people who will be affected by the testator’s decision.
3. The ability to retain and manipulate information rationally in a manner that allows the testator to make comparisons, weigh alternatives and make judgments about which possible dispositions should be given the most weight. These skills permit the testator to rationally determine which beneficiaries deserve more and, in turn, prioritize their relative distributions.
4. Empathy and abstract reasoning to understand how the testator’s decisions are likely to be experienced or felt by those to whom the testator is closest.
5. The ability to reason abstractly and communicate a clear and consistent rationale for any dramatic changes or significant deviations from prior wills or previously expressed wishes regarding the estate. This ability to reason and to communicate is important to establish that the testator’s decision on distributions is not controlled by hallucinations or delusions.
6. The ability to understand and appreciate quantities. This skill could enable the testator to understand and appreciate the dollar value of specific gifts and residuary gifts.

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C. No Single Neurological Test for Determining Testamentary Capacity

Presently, there is no single cognitive screening tool or test for testamentary capacity that can be applied universally by health care professionals. The most widely utilized tool, the Mini-Mental State Exam, cannot alone determine capacity or even dementia without other considerations. Although there is a significant correlation between those scoring very well on the MMSE as having testamentary capacity and those scoring very poorly as not having testamentary capacity, there is a large middle range of scores where two individuals may have identical scores but one clearly has testamentary capacity and the other does not. As discussed in more detail below, the MMSE does not test certain key cognitive functions nor does it differentiate between impairment that is largely permanent, like dementia, and impairment that is transitory, like delirium or depression, both of which can significantly impact the MMSE score.

D. Gold Standard for Determining Testamentary Capacity May Not be Necessary or Affordable in Certain Situations

Where money is no object, the gold standard for determining testamentary capacity is two part: (a) a thorough in-person interview by an experienced mental health professional (typically a geriatric psychiatrist or psychologist); and (b) a complete battery of tests covering the specific cognitive functions that need to be utilized by the elder to make the testamentary decision under the elder’s particular circumstances. Unfortunately, the cost of the comprehensive review by the geriatric psychiatrist or other medical expert coupled with the battery of neurological tests may be more than the cost of the legal work for a simple will or living trust, making the entire project unaffordable to the client.

Fortunately, in the majority of cases, after review of the client’s existing assets, estate plan, and financial records, and an in-person interview with the client (without others in the room) in which the attorney can ask probing questions, the client’s testamentary capacity may be quite evident.¹⁹ In such a case, neuropsychological testing may be unnecessary and may add little benefit. If the client is able to explain in general terms why he or she is in the attorney’s office, his or her current estate plan in effect before the attorney makes any changes, the nature of his or her assets (which should be corroborated by outside sources or persons to check accuracy), a reliable history of his or her important relationships to friends and family members, and information on anyone who is requesting that he or she make the changes, he or she has passed the functional test for capacity. An analogy would be a situation where a neuropsychologist is asked to determine whether an individual is able to parallel park a car. A neuropsychologist doing such an evaluation could administer a battery of tests, including tests of attention and visuospatial abilities, but simply asking the individual to park his or her car would provide the information necessary in making such a determination and would have superior validity.²⁰

E. Folstein Mini-Mental State Exam is the Most Commonly Used Screening Tool for Assessing Cognitive Impairment; It Does Not Determine Capacity

The Mini-Mental State Exam, also known as the MMSE or the Folstein test, is the most widely used neurocognitive screening tool for cognitive impairment. It is an 11-question, 30-point questionnaire that is relatively easy to administer, requiring little to no specific training. It takes approximately 10 minutes to complete. There are published norms for results by age and education. Below is a table from one study showing the median score by age and level of education.²¹

Originally developed in 1975 by Marshal F. Folstein, Susan Folstein, and Paul McHugh to determine an initial baseline for a patient from which to assess future changes in cognitive function (i.e., is the patient doing better or worse), the MMSE has now become a mainstay as an initial screening for determining neurocognitive impairment (i.e., dementia). The MMSE is not diagnostic of dementia and does not distinguish well between different neurocognitive disorders: however, it remains useful as a quick assessment of cognitive function and a benchmark to document subsequent decline. Specific scores on the MMSE are commonly associated with differing degrees of impairment.²² Even the commonly used cut-off score of 24 must be evaluated in the context of the patient’s education level and language. For instance, a score of 27/30 for a highly-educated person may indicate a cognitive problem, while a score of 23/30 for an elderly person with a grade school education may be normal. The MMSE does not test for most aspects of executive function, including judgment and insight, factors that are typically critical to exercising testamentary capacity and resisting undue influence. The MMSE scores are most useful in context with other information, such as self-reported memory problems, decreases in functional ability, and family and caregiver reports.

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F. What Cognitive Functions does the MMSE Measure?

The MMSE can be broken into two parts; the first, which requires verbal responses, tests orientation, memory and attention; and the second part, which tests the ability of the patient to name, follow verbal and written commands, write a spontaneous sentence and copy a polygon.²³

The MMSE grades the following seven categories of cognitive function up to a maximum of 30 points:

1. Orientation to time and place (10 points)
2. Registration of three words (3 points)
3. Attention and Calculation (5 points) — subtracting 7 serially from 100 five times, spelling “world” forwards and backwards
4. Recall of three words (3 points) — usually “apple,” “table” and “penny”
5. Language (8 points)
6. Visual construction (1 point) — drawing a pentagon²⁴

1. Orientation to Time and Place

The MMSE has two questions that test a patient’s orientation to time and place for a total of 10 points.²⁵ The first question asks the patient to state the year, season, date, day of the week, and month. The second question asks the patient to identify where they are (the state, county, town, and specific location). These two questions taken together clearly test the patient’s alertness and attention, specifically their orientation to time, place, person, and situation, their level of consciousness, and their ability to concentrate. These questions also test the patient’s information processing, specifically their short-term memory and their ability to understand and communicate with others.

2. Registration of Three Words

The third question on the MMSE asks the patient to repeat three unrelated objects named by the examiner. This question tests the patient’s alertness and attention, specifically their ability to concentrate, their information processing, specifically their short-term memory, and their ability to understand and communicate with others.

3. Attention and Calculation

The fourth question on the MMSE is either a math calculation, asking the patient to count backward from 100 by sevens or in the alternative, a spelling test, asking the patient to spell the word “world” backwards. These questions test the patient’s alertness and attention, and their information processing, specifically their working memory. The serial seven question, if used, tests the patient’s working memory and ability to follow instructions.

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4. Recall of Three Words

The fifth question asks the patient to recall the three words they were given in question three. This question tests the patient’s alertness and attention, information processing, specifically their short-term memory, and their ability to understand and communicate with others.

5. Language

Questions six through 10 test the patient’s language skills by asking them to name two simple objects, repeat a common phrase, follow simple oral instructions, follow simple written instructions, and make up a simple sentence. These questions check the patient’s alertness and attention, their ability to process information audibly and visually, and their recognition of familiar objects.

6. Visual Construction

The question dealing with visual construction asks the patient to draw two intersecting pentagons. The visual construction question tests the patient’s alertness, attention, and information processing related to visuospatial skills.

G. Non-Cognitive Factors that May Affect the MMSE Score

The administrator of the MMSE and other cognitive tests must be sensitive to non-cognitive impairments that may cause a falsely positive test. These may include visual impairments, such as cataracts, macular degeneration, and glaucoma. When asked to read a sentence, write a sentence, or copy pentagons, the visually-impaired patient may fail even if there is no cognitive impairment. Hearing problems pose similar risks for false positives for those specific instructions and questions in the MMSE given orally. Some older adults may not voluntarily admit to hearing problems, opting to do the best they can under the circumstances. Many older adults take multiple medications, including those that may cause fatigue or sedation. Care must be taken to ensure that the MMSE is being given at the optimal time of day and that the examinee is well rested and comfortable. Prior to administering the screen, the examiner should ask about hearing, vision, and other issues affecting comfort and ability to concentrate.

When the MMSE or other cognitive screening tool is administered multiple times over a relatively short period of time, the scores for less impaired older adults may increase over time from the learning effect of memorizing answers to parts of the test, particularly as it relates to recall. Test scores may also be artificially elevated if the tester re-asks a question, gives a hint, or provides a physical clue (such as head shaking) to assist the test-taker.

H. What Mental Functions Critical for Finding Testamentary Capacity Does the MMSE Fail to Test for?

While the MMSE addresses some of the functions essential for testamentary capacity under Probate Code section 6100.5 and Probate Code section 811, it does not address all of them. Specifically, the authors have found that the MMSE is strongly weighted toward short-term memory and language and does not test for the following functions potentially critical for testamentary capacity: (a) long term, episodic memory; (b) the ability to retain and manipulate information, including the ability to reason using abstract concepts and weigh competing alternatives; (c) empathy and the ability to assess motives of others; (d) the ability to plan, organize, exercise judgment, and carry out actions in one’s own rational self-interest; (e) thought processes including disorganized thinking, hallucinations, and delusions, and uncontrollable, repetitive, or intrusive thoughts, unless severe enough to interfere with one’s ability to attend to the MMSE; and (f) an inability to control mood and affect (including, for instance, depression and apathy).

Without long term episodic and autobiographical memory, the testator may be unable to remember his or her important relationships and closeness to particular individuals, possible conflicts with other individuals, any previous gifts to those individuals in lieu of testamentary dispositions, and the identity of those affected by his or her testamentary decision. Without the ability to control emotions, reason abstractly and weigh alternatives, the testator may be incapable of determining who is more deserving of the testamentary gifts when resources are limited, and how to prioritize and structure the various gifts to meet competing claims. Without empathy, the testator may fail to appreciate the emotional effect of the intended testamentary gifts or disinheritance on loved ones. If the testator is unable to reason abstractly and communicate a clear rationale for any dramatic or significant deviations from his or her prior estate plan, the intended change may be the byproduct of delusions, hallucinations, some other neurocognitive disorder, or undue influence.

I. Reliance on the MMSE Score Alone to Assess Capacity is Misplaced

Reliance on the MMSE, or any formal screening tool, by itself to determine capacity is inadequate. Many of the mental processes required for testamentary capacity, including reasoning and judgment, may be impaired in the testator before memory and language problems become evident or would be identified by a tool such as the MMSE.²⁶ The MMSE is not designed to detect mild cognitive impairment and is not as sensitive for mild or early dementia processes. ²⁷ It does not test executive function, which is particularly problematic for disorders that attack primarily the frontal lobes, like Frontotemporal Dementia (FTD), where most executive function (i.e., reasoning and judgment) is thought to emanate.²⁸ Behavioral variant FTD, one subtype, usually first presents as a decline in social skills (governed largely by judgment and behavior), coupled with emotional apathy (including a lack of concern for loved ones, cruelty and rudeness, and inappropriate social behaviors), as opposed to memory loss that is often the first presentation of Alzheimer’s. It is not uncommon for individuals with FTD to be able to score high on the MMSE, but be unable to plan, organize, reason abstractly, or appreciate the consequences their judgments and decisions on themselves and others.²⁹

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J. Case Study on Limitations of MMSE to Assess Capacity

The following actual case from co-author Dr. Gibbs’s practice demonstrates the limits of the MMSE in assessing capacity:

A concerned family member contacted Adult Protective Services (APS) suspecting that Ms. X was the victim of financial abuse. Ms. X lived in a five-bedroom home in a suburban neighborhood. When APS workers visited, they noticed that Ms. X was living only in a portion of her downstairs area, adjacent to the kitchen, leaving the entire upstairs and most of the remaining downstairs uninhabited. Her bed was there, unmade, and in fact, the area was filthy, and disorganized. Observation of her kitchen showed evidence of mold and rodents. Ms. X had stacks and piles of mail and papers strewn over table and counters. During the visit the telephone rang regularly with calls from persons who were soliciting money. A psychologist accompanied the APS worker and administered the MMSE. Ms. X was agreeable but very apathetic, lacking an emotional response to the seriousness of her situation. She scored 30/30. She was asked to read a paragraph of a story with multiple details and was able to accurately answer all questions pertaining to this. Her memory was intact. However, when asked about why she had given tens of thousands of dollars to solicitors, she was unable to convey an appreciation for the loss of funds, or reasoning behind these decisions. She was also unable to find her bank statements or financial records to demonstrate her understanding of the situation. Ms. X clearly lacked the judgment and insight into the negative consequences of giving money to whomever asked, and the ability to plan, organize or manage normal activities for daily life. Ms. X suffered from a form of frontotemporal dementia.

K. What Tests are Recommended to Supplement or Replace the MMSE to Test for Testamentary Capacity and Susceptibility to Undue Influence?

Interview questions asked by an experienced clinician can more than adequately test for the cognitive deficits in reasoning and problem solving that the MMSE frequently misses. To gauge executive functions, clinicians using the MMSE often combine it with the clock-drawing test (CDT), in which the patient is given a piece of paper with a circle on it and asked to draw a clock showing the time of 10 minutes after 11.³⁰ It can usually be completed in a couple of minutes. The CDT frequently identifies executive function problems like planning and organizing by virtue of the requirement to organize the elements of the clock on an empty circle and use working memory to insert the time.³¹ The CDT is particularly helpful if the MMSE score is normal because it can help detect executive dysfunction. In impaired persons, multiple types of mistakes may be evident. For those with earlier impairment, or mild dementia, the hands of the clock may be drawn so that one hand points to the ’10’ and the other to the ’11’, rather than placing the short hand pointing to the ’11’ and the long hand to the ‘2’. The drawing is very concrete based on what is heard, rather than a conceptualization of ’11:10.’ Other common problems are the inability to fit the numbers ‘1-12’ evenly around the clock. Patients suffering from a stroke may draw all of the numbers on one side of the circle because they do not recognize the contralateral side (hemineglect) of the circle. Patients with severe dementia may place the numbers in rows, for example.

Two other tests, the Executive Interview Test (EXIT-25) and the Frontal Assessment Battery (FAB) are also frequently used for assessing executive dysfunction.³² The FAB involves a series of six questions and takes less than 10 minutes to administer.³³ The EXIT-25 includes 25 items assessing preservation, intrusions, apathy, disinhibition, utilization and imitation behaviors, concentration, motor impersistence and frontal release signs and takes approximately 10 to 15 minutes to perform.³⁴

Where the goal is to administer a single broad-based neurocognitive screening tool that tests for most types of impairment (like the MMSE), but also tests more extensively for executive dysfunction, the Montreal Cognitive Assessment (MoCA) is considered superior to the MMSE. Areas in the MoCA which test for executive function include trail making, phonemic fluency, and verbal abstraction. The MoCA takes longer than the MMSE, on average 15 minutes.³⁵ While the MoCA is subject to copyright, like the MMSE, it is accessible online at the MoCA website for clinical and educational use by universities and health professionals.³⁶

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Another screening tool being utilized more frequently is the St. Louis University Mental Status (SLUMS) Exam. This is a 30-item test which places less emphasis on orientation (3 points versus 10 points on the MMSE) and includes two items which test executive function, including animal naming and the clock drawing tasks.

With minimal training, professionals from many areas can learn to utilize these tools. Each of the MMSE, MoCA, and SLUMS is translated into multiple languages.

III. CONCLUSION

Cognitive screening tools, like the MMSE, are helpful in identifying clients with cognitive impairment. By themselves, however, they are not diagnostic and do not assess capacity to make a particular decision, such as testamentary capacity. While the MMSE tests a broad range of cognitive functions and is effective at detecting more significant impairment, it does not test for executive dysfunction and is not particularly effective at identifying mild cognitive impairment. Skills critical for testamentary decision-making, like the testator’s ability to manipulate information rationally or the testator’s empathy and ability to reason abstractly, are not tested. The MMSE is a tool which must be used in conjunction with other information obtained through interviews and observation.

Experienced clinicians who continue to use the MMSE often use other screening tools, like the CDT, EXIT-25 and FAB, to assess executive functions. Other clinicians have moved toward use of the MoCA or SLUMS which are broad-based screening tools like the MMSE that also test certain areas of executive function. Executive function is critical for complex higher order decision making, and its dysfunction often precedes more obvious impairments in memory. Irrespective of what cognitive test or screening tool is used, the gold standard for assessing testamentary capacity and susceptibility to undue influence is the experienced clinician’s in-depth interview of the testator.

While the authors do not recommend that attorneys administer cognitive screening tools to clients as a matter of practice, attorneys frequently dealing with issues of a current client’s capacity would benefit from being trained to administer simple cognitive screening tools like the MMSE or MoCA. Even if he or she never administers a single test, the training would help the attorney understand how scores can be influenced by the tester and other external non-cognitive factors. In addition, understanding these screening tools will aid in the review of client’s health records and help determine if expert opinion is indicated.³⁷

Where the client is impaired and the attorney suspects that the client is being coerced into changing his or her estate plan, a low MMSE, MoCA, or SLUMS score on an attorney-administered test may provide the attorney with a graceful excuse for declining the engagement while at the same time better documenting the potential abuse. The attorney may not release the client’s score or interview notes without the client’s consent, but the attorney’s notes and MMSE results would be discoverable post-death by family members claiming through the deceased testator.³⁸ Since the abuser is unlikely to encourage or assist the impaired client in visiting a mental health professional for more thorough cognitive testing, the attorney-administered screening tool may be the only cognitive test result available to heirs to help establish the client’s lack of capacity or susceptibility to undue influence. In those situations where the attorney (for a fee) drafts a testamentary instrument making a substantial change to dispositive provisions of the estate plan, an attorney-administered MMSE may have only marginal evidentiary benefit. The MMSE does not test for most executive dysfunction and the attorney is financially-interested in “helping” the client obtain a higher score. In that same situation, a “second” opinion from a credible, independent health professional consisting of both a comprehensive interview and test results from several cognitive screening tools would carry considerably more evidentiary weight.

With or without the benefit of testing, the attorney’s most important skill when interviewing the client will continue to be asking the right questions, those that will enable the attorney to witness first-hand the testator’s ability to express his or her understanding of: (a) his or her assets; (b) his or her testamentary wishes; (c) the people affected by the testamentary decision; (d) how those loved ones will be affected; and (e) the underlying reasons for making any significant changes to the existing estate plan. Where available, scores on screening tools like the MMSE or MoCA, administered by and obtained from a disinterested health care professional, may be used to augment the attorney’s assessment. If the attorney or clinician determines from the testator’s responses to questions during the interview that the client/patient has intact reasoning and memory, and ifthe client/ patient scores well on applicable screening test(s), the attorney or clinician will in all likelihood be able to express an opinion that the testator has testamentary capacity. If patient does poorly in the answering questions during the interview, but scores well on the MMSE, the attorney or clinician may refer the patient for other cognitive testing in hopes of identifying the source of the cognitive dysfunction for treatment purposes. If, however, the testator’s appreciation for decision-making capacity is lacking, the score on any screening test is irrelevant. If the dysfunction cannot be corrected by treatment or passage of time (as in the case of temporary delirium), the clinician is likely to conclude that the testator lacks testamentary capacity, notwithstanding a high MMSE score.

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* Center of Excellence on Elder Abuse and Neglect, University of California at Irvine

** Carico Macdonald Kil & Benz LLP, El Segundo, California

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Notes:

^1. Federal Interagency Forum on Aging-Related Statistics, Older Americans: Key Indicators of Well-Being (2016). Available at: [as of January 10, 2018].

^2. Over age 65, 11.2% to 13.9% of elders have moderate to severe cognitive impairment. (Committee on the Public Health Dimensions of Cognitive Aging; Board on Health Sciences Policy; Institute of Medicine, Cognitive Aging: Progress in Understanding and Opportunities for Action (2015), available at [as of January 10, 2018]) 15% to 20% may have less severe mild cognitive impairment. (Mild Cognitive Impairment available at [as of January 10, 2018].). Mild cognitive impairment (MCI) being the gray zone between normal aging and early dementia.

^3. According to the American Psychiatric Association (APA), who publishes DSM-5, it still is permissible to use the term dementia. Am. Psych. Ass/n. (2013) Highlights of Changes from DSM-IV-TR to DSM-5 at pp.16-17. Available at [as of February 5, 2018].)

^4. Boranian v. Clark (2004) 123 Cal.App.4th 1012, 1020; Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal. App.4th 1287, 1307 (“Moore”).

^5. Moore at 1299-1300.

^6. San Diego Bar Ass’n Ethics Opinion 1990-3 provides “[a] lawyer must be satisfied that the client is competent to make a will and is not acting as a result of fraud or undue influence.” The opinion explains how the attorney should proceed: “Once the issue is raised in the attorney’s mind, it must be resolved. The attorney should schedule an extended interview with the client without any interested parties present and keep a detailed and complete record of that interview. If the lawyer is not satisfied that the client has sufficient capacity and is free of undue influence and fraud, no will should be prepared.”

^7. Code of Civ. Proc., section 352.

^8. Walton v. Bank of California (1963) 218 Cal.App.2d 527, 541; Stratton v. Grant (1956) 139 Cal.App.2d 814, 817; Estate of McConkey (1939) 33 Cal.App.2d 554, 563; Carr v. Sacramento Clay Products Co., (1917) 35 Cal.App 439, 442.

^9. Recent research has shown that even elders who are psychiatrically and neurologically healthy can still have decision making impairments. Denburg, et al., The Oribitofrontal Cortex, Real-World Decision Making, and Normal Aging (2007) Ann. N.Y. Acad. 1121:480-498. Older adults “are more vulnerable to the ‘truth effect’ (the tendency to believe repeated information more than new information) because [they] have relatively poor context or source memory, but relatively intact familiarity of repeated claims.” Id. This vulnerability increases elderly individuals’ susceptibility to undue influence, especially if they are residing with their influencer or subject to their deception on a daily basis. Without the ability to think abstractly, assess motives, and retain skepticism, the client’s ability to discern deception or coercion may be limited. This particular study involved a cross section of community-dwelling participants, where about 40% had difficulty with laboratory simulations of decision making.

^10. Gamble et al., How Does Aging Affect Financial Decision Making?, Center for Retirement Research at Boston College (2015), 15-1 (available at ) [as of February 5, 2018]).

^11. Prob. Code, section 6100.5, subd. (a)(1).

^12. Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, 1677.

^13. Andersen v. Hunt (2011) 196 Cal.App.4th 722, 731.

^14. Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1353-54.

^15. Prob. Code, section 812; Lintz v. Lintz (2014) 222 Cal.App.4th 1346.

^16. See Andersen v Hunt (2011) 196 Cal.App.4th 722; Tuttle v. Bessey (1955) 137 Cal.App.2d 725, 727 (holding that “the rules governing capacity to execute a deed are in general the same as those governing testamentary capacity”); see also Mental Capacity Act 2005 (available at [as of January 10, 2018]) that came into effect in England and Wales in 2007 with criteria almost identical to Probate Code sections 811 through 813. The Code of Practice that accompanied states at paragraph 4.33: “The Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them . . . judges can adopt the new definition if they think it is appropriate.”

^17. Kennedy, Testamentary capacity: A practical guide to assessment of ability to make a valid will (2012) Journal of Forensic and Legal Medicine, Volume 19(4): 191-95, p.192.

^18. Generally, executive functions include high-level cognitive abilities that allow people to successfully respond to new situations by regulating the activities of other more basic functions, such as memory, attention, and motor skills. Executive functions, also referred to as frontal functions, are required for the implementation of goal-directed behavior and for the construction and execution of a plan for the future. They involve developing a plan of action, self-monitoring one’s behavior in furtherance of the plan, and flexibility to change one’s behavior and plan to attain the ultimate goal. In short, executive functions are frequently the mental functions needed for “problem solving.”

¹9 During client interviews by attorneys, those who accompany the elder, if allowed to stay in the room, will frequently make comments excusing or justifying the elder’s confusion, such as: “Oh she/he is just having a bad day,” or, “she just took her pain medications,” or “we know this is what she wants-she has been saying this for years.” If asked directly, some elders may deny they are experiencing any impairment for fear of being placed in a nursing home and losing their independence or out of lack of awareness into their own cognitive deficits. Some studies suggest that the majority of the Alzheimer’s patients have damage to the part of the brain that promotes self-awareness, resulting in a condition known as anosognosia, causing them to not necessarily know they have a problem.

^20. Howieson, Cognitive Skills and the Aging Brain: What to Expect (2015) Cerebrum (available at [as of January 22, 2018]).

^21. Adapted from Crum et al., Population-Based Norms for the Mini-Mental State Examination by Age and Education Level, JAMA (1993) Vol 269, No. 18.

^22. Traditionally, MMSE scores between 24 and 30 are generally thought to show no cognitive impairment, scores between 18 and 23 are generally thought to show mild cognitive impairment, and scores below 17 are thought to show moderate to severe cognitive impairment. Crum et al., Population-Based Norms for the Mini-Mental State Examination by Age and Education Level, JAMA (1993) Vol. 269, No. 18; Folstein et al., “Mini-Mental State:” A Practical Method for Grading the Cognitive State of Patients for the Clinician (1975) J. Psychiat. Res. Vol. 12: 189-198; Rovner and Folstein, Mini-mental state exam in clinical practice (1987) Hosp. Pract. Vol. 22, No. 1A:99, 103, 106, 110; Tombaugh and McIntrye, The Mini-Mental State Examination: A Comprehensive Review. 1992 J Am Geriatr. Soc. Vol. 40, No. 9:922-935. Over time, the cut-off ranges have been differentiated further with an MMSE score of 27 to 30 points suggestive of normal, 24 to 27 points suggestive of mild cognitive impairment, 18 to 23 points suggestive of mild dementia, 12 to 18 points suggestive of moderate dementia and below 12 points suggestive of severe dementia. (Tests for Alzheimer’s Disease and Dementia [as of January 12, 2018].)

^23. Folstein et al., “Mini-Mental State:” A Practical Method for Grading the Cognitive State of Patients for the Clinician (1975) J. Psychiat. Res. Vol. 12: 189-198.

^24. The items most often missed in persons with cognitive impairment include the three word recall, attention and calculation (spelling world and serial 7’s), drawing the pentagon and orientation to time. Analysis shows that each item has variability with respect to detecting cognitive difficulties and enhancements and modifications have been suggested to validate various categories. In academic circles, another test, the MoCA, is being taught as an alternative to the MMSE and is more sensitive for detecting milder forms of dementia. This test, as well as other alternatives to the MMSE, is discussed in more detail below.

^25. One big criticism of the MMSE is its emphasis on orientation. Buckingham et al., Comparing the Cognitive Screening Tools: MMSE and SLUMS (2013) PURE Insights, Vol. 3, Art. 3.

^26. Juby et al., The value of clock drawing in identifying executive cognitive dysfunction in people with a normal Mini-Mental State examination score (2002) CMAJ 167(8): 859-864.

^27. Aggarwal and Kean, Comparison of the Folstein Mini Mental state Examination (MMSE) to the Montreal Cognitive Assessment (MoCA) as a Cognitive Screening Tool in an Inpatient Rehabilitation Setting (Dec. 2010) Neuroscience & Medicine Vol. 1, No. 2, pp.39-42.

^28. Frontal temporal dementia (FTD) results from a progressive degeneration of the frontal temporal lobes where most executive function (i.e., reasoning and judgment) is thought to emanate. There are three main types of frontotemporal dementia. The behavioral variant FTD subtype and primary progressive aphasia is as common as early onset Alzheimer’s disease in those under age 65. These subtypes are less common than Alzheimer’s dementia in those over 65 years of age.

^29. Higher-than-expected MMSE scores are not reserved to those with FTD. A number of studies have found that individuals with Alzheimer’s type dementia with more education tend to retain their memory and language skills longer relative to their executive function as compared to those with less education. One interesting example discussed in a specific study was the case of an 81-year old woman who had been experiencing memory loss for approximately a year when she was evaluated. She had noticed a change in her handwriting and word retrieval issues. At her first exam, she scored 29 out of 30 on the MMSE (and 25 out of 30 on the MoCA). Four months later, she took another MMSE and scored 30 out of 30. Despite this perfect score, the patient reported worsening memory issues and was unable to manage household tasks or prepare meals. Thirteen months after her initial evaluation she again scored a perfect 30 out of 30 on the MMSE, despite needing assistance with some activities of daily living. Even twenty-two months after her initial visit she scored a perfect 30 out of 30 on the MMSE, despite her family reporting she needed even more assistance with activities of daily living. This study is not the first to discover or talk about the possibility that the MMSE can yield false results. In fact, one study found that 5 out of 27 subjects diagnosed with mild Alzheimer’s disease scored at least 27 out of 30. Galasko et al., The Mini-Mental State Examination in the early diagnosis of Alzheimer’s disease (1990) Arch Neurol. 47:49-52. Another study observed that “a small proportion of those who scored between 26 and 30 points were almost certainly demented.” O’Connor et al., The influence of education, social class and sex on Mini Mental State scores (1989) Pyschol. Med. 19:771-776. One explanation for patients with diagnosed dementia scoring highly on the MMSE is their level of education. A recent study has shown that patients with higher levels of education show greater impairment of abstract thinking while patients with lower levels of education show greater impairment of memory and attention skills. Le Carret et al., Influence of education on the pattern of cognitive deterioration in AD patients: the cognitive reserve hypothesis (2005) Brain Cogn. 57:120-126. Because the MMSE does not test for abstract thinking, more educated patients are more likely to score highly on the MMSE, even if they are severely impaired. Another possible reason for the high MMSE scores despite an Alzheimer’s diagnosis is rehearsal bias. This occurs when a patient knows the questions they will be asked and have “studied” for the MMSE. However, it is hard to evaluate how much this can impact the scores other than to recognize that it can cause a patient to attain a score that is not truly representative of their cognitive ability. Notably, the section most susceptible to rehearsal bias is orientation to time and place, which accounts for 10 points on the MMSE, making it very likely that any coaching on orientation could lead to an artificially high score.

^30. This can be modified by giving the patient a pre-drawn circle and asking the patient to draw the numbers on the clock and then show the time of 10 minutes after 11 o’clock.

^31. The clock draw test can also be education-dependent, similar to the MMSE score. Ainslie and Murden, Effect of Education on the Clock-Drawing Dementia Screen in Non-Demented Elderly Persons (Mar. 1993) J. Am. Geriatr. Soc. Vol. 41, No. 3, pp. 249-52.

^32. Moorhouse et al., Comparison of EXIT-25 and the Frontal Assessment Battery for Evaluation of Executive Dysfunction in Patients Attending Memory Clinic (2009) Dement. Geriatr. Cogn. Disord. 27:424-428.

^33. It is effective at identifying executive dysfunction and is helpful in discriminating between Frontal Temporal Dementia and Alzheimer’s type dementia in individuals that are mildly demented. The questions involve conceptualization, mental flexibility, programming, sensitivity to interference, inhibitory control, and environmental autonomy.

^34. Stokholm et al., The Executive Interview as Screening Test for Executive Dysfunction in Patients with Mild Dementia (2005) J. Am. Geriatr. Soc. Vol. 53, No. 9, pp.1577-1581.

^35. Aggarwal and Kean, Comparison of the Folstein Mini Mental State Examination (MMSE) to the Montreal Cognitive Assessment (MoCA) as a Cognitive Screening Tool in an Inpatient Rehabilitation Setting (Dec. 2010) Neuroscience and Medicine Vol. 1, No. 2, pp. 39-42.

^36. . A publicly viewable copy of the MoCA may be found at [as of February 6, 2018]. Please note that copyrights apply.

^37. In addition, understanding these screening tools will aid in the review of client’s health records and help determine if expert opinion is indicated.

^38. Evid. Code, section 957.

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