Expert: Mary Gordon - 1/5/2009

Question
In a court hearing to determine the validity of a will, do scores of 27/30&29/30 in mini-mental test prove testamentary capacity?  The female patient was aged 84 and had been suffering from vascular senile dementia, probably in the form of Alzheimer's Disease, for five years when she took the test.  Also there were serious doubts as to her ability to make considered judgements/decisions.  Thank you.

Answer
The short answer is, the test scores you mention would be considered perfectly normal.

For the standard MMSE (Mini Mental State Exam) which is also known as the Folstein, scores of 27 and above are considered normal

Scores of between 23 and 26 indicate a borderline condition. Scores of 22 and below are abnormal. You would expect scores of 20 to 26 in a person with early Alzheimer's. In "moderate" Alzheimer's you would see scores of 10 to 19, and scores below 10 indicate "severe" Alzheimer's disease. On average people with Alzheimer's disease who do not receive treatment lose 2 to 4 points each year on the Mini Mental State Examination (MMSE). Its not a test that is easy to "fake" in terms of an impaired person being somehow able to get a high score.

As you probably know the test itself is a brief examination consisting of eleven questions intended to evaluate an adult patient's level of cognitive functioning. It evaluates six areas of cognitive function: orientation, attention, immediate recall, short-term recall, language, and the ability to follow simple verbal and written commands. The total score allows the examiner to place the patient on a scale of cognitive function. It correlates well with a standard measure of cognition in adults, the Wechsler Adult Intelligence Scale (WAIS). The biggest advantage is that the MMSE can be completed in ten minutes or less.

The MMSE should be administered by a qualified health care professional, such as a neurologist, psychologist, geriatrician, psychiatrist or physician, and it is never used as the sole criterion for evaluation - i.e. its considered a rough general indicator - so it should never be the only test put forward (i.e. a person may be cognitively intact but delusional, or emotionally in a state to make them unable to make competent decisions.

This link leads to a good article called "A Lawyer's Guide to Diminishing Capacity and Effective Use of Medical Experts in Contemporaneous and Retrospective Evaluations.
http://www.loeb.com/files/Publication/e7a7e501-6218-488e-876f-1fbd78e1524c/Prese...

It discusses the use of the MMSE and related issues. Mental capacity is always measured in a context, in relation to a particular decision. The MMSE is not a test of decisional capacity in the legal context. The results of a MMSE can't really determine if a person has the “ability to understand “and the “ability to appreciate” information relevant to making a decision. This ability to understand and ability to appreciate is the legal test of capacity in many places.  

As I mentioned, some persons with high scores may lack capacity to make good decisions on particular issues. A high score does not necessarily equate with capacity or lack of impaired cognitive function. The reverse may also be true, that a person with a low score, may have the ability to make a good decision on a particular issue.

My advice - consult both a good lawyer, and a doctor with a speciality in cognitive impairment in the elderly.

Hope this helps

Mary G.