Estate Planning

Capacity Litigators Beware: DSM-IV to be Revised

By Hull and Hull LLP

A fifth edition of the Diagnostic and Statistic Manual of Mental Disorders (known as the "DSM-IV") is imminent, according to the chair of the task force responsible for the fourth edition, Dr. Allen Frances, quoted in the National Post.  The DSM-IV is considered defines and classifies all mental illnesses. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change.  The medical notes we pour over may begin to include more, less, or different diagnoses.  A patient's diagnosis is a major variable in his or her treatment.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder. 

This does not imply corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual's observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusion reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all.  But changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual's death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual's capacity. 

Have a great day,
Chris Graham

Full post as published by Toronto Estate Law Blog on April 27, 2010 (boomark / email).