Mini Mental Tests are often used by many Medical Professionals as a final indicator of Capacity. These tests are very dangerous as they do not adequately assess Capacity yet are often used as a final determiner of Dementia.

Mental status tests

Mental status testing evaluates memory, ability to solve simple problems and other thinking skills. Such tests give an overall sense of whether a person:

  • Is aware of symptoms.
  • Knows the date, time, and where he or she is.
  • Can remember a short list of words, follow instructions and do simple calculations.

Mini-Mental State Exam (MMSE) and the Mini-Cog test

The MMSE and Mini-Cog test are two commonly used assessments.

During the MMSE, a health professional asks a patient a series of questions designed to test a range of everyday mental skills. The maximum MMSE score is 30 points. A score of 20 to 24 suggests mild dementia, 13 to 20 suggests moderate dementia, and less than 12 indicates severe dementia. On average, the MMSE score of a person with Alzheimer's declines about two to four points each year.

During the Mini-Cog, a person is asked to complete two tasks:

  1. Remember and a few minutes later repeat the names of three common objects.
  2. Draw a face of a clock showing all 12 numbers in the right places and a time specified by the examiner.

The results of this brief test can help a physician determine if further evaluation is needed.


Tests of Cognitive Impairment


Although attorneys must often assess a client’s mental capacity, lawyers generally should not use the formal, clinical tests employed by medical and psychological professionals.   Most attorneys lack the training to know the limitations of the tests, such as validity and reliability issues (for example, many tests are not standardised for use in geriatric populations), or associated problem of the extent of false positive and false negative results.  Further, most tests do not provide results that are specific to the issues of legal incapacity; therefore reasonable questions may be raised as to whether the attorney had the requisite knowledge to make appropriate conclusions based upon test results.  Finally, the results of psychological tests must be compared to the person's behaviour in order to confirm the validity of the findings.

For these reasons, lawyers are encouraged to use PARADISE-2 - a behaviour-based protocol for assessing cognitive abilities that was designed to be used by attorneys in litigation settings.

With regard to the Mini-Mental State Examination or "Folstein" examination:  The Folstein (AKA "MMSE") should never be the sole method of assessing mental capacity.  According to its creator, the test was not designed to evaluate "executive functions" - i.e., those abilities involved in considering options and likely consequences, planning, initiating, monitoring, and appropriately stopping behaviour.  In fact, Dr. Folstein and his group published an article in which they showed that slightly fewer than 40% of people - otherwise determined to be incompetent - scored well on the test.  The failure was due to this very issue.

A low score must also be doubted, because several social, medical, and psychological conditions may produce an artificially low score.  If the test is used, the results should be compared to behavioural observations.

The MMSE does not assess the issue of undue influence or the degree of susceptibility to such manipulation/coercion.


Mini Mental Tests do NOT assess:


  • Episodic Memory Loss (Life Events, Time & Dates, Life Experiences)
  • Does not test "Executive" Functioning
  • Judgement (only real life behaviours do)
  • Personality Changes
  • Cognitive Inflexibility
  • Some Semantic Memory
  • Delusions
  • False Memories & Lies
  • Selfishness
  • Disinhibition
  • Emotional Outbursts
  • Sociopathy & Anti-Social Behaviour
  • Lack of Empathy & Emotional Withdrawal & Isolation
  • Behavioural issues
  • Assets Disposition Errors
  • Grandiosity
  • Psychiatric Illnesses (ie Schizophrenia)
  • Vulnerability & Gullibility
  • Motor & Physical Impairments
  • Mood Assessment
  • Are easy to manipulate by repeated practice



Mild Cognitive Impairment

This type of diagnosis is often made when a person is actually severely functionally impaired. The reason why is because a lot of emphasis is placed on retaining or storage of memory and not on recall and delusions/false memories.

In addition mini mental tests and another tests often miss behavioural or psychiatrist illnesses. In addition, Doctors who are not Neurologists or Psychiatrists diagnose MCI when they have not spoken to the family or have dismissed symptoms offered by the family.

It is IMPORTANT that the Family, who know the person, is always spoken to, changes listed esp in behaviour and a past medical history is reviewed.

AASGAA cannot stress enough how MCI is often diagnosed when a person is actually displaying severe functioning impairments. This is why mini mental tests are limited and a FULL Neuropsychological / NeuroPsychiatric Assessment is warranted and the results assessed by a Neurologist/Psychiatrist NeuroPsychiatrist.





FAB-Frontal Assessment Battery assess Executive Impairment. The cut off score is 12 and often we find this test is not done or is 'missing'. If it is missing, the usually the loved one has failed (frontal lobe damage) and the results hidden. This test is often hidden and in some cases we have seen low results of 6 & 9  and a so called Professionals still sign off stating the impaired person has capacity to make reasoned decisions.

Physical Examination- A Physical is need to rule out any physical impairment that may affect capacity.

Behavioural Assessment- This is essential and often missed. Do not accept the opinion of anyone OTHER than an impartial Psychiatrist / Neurologist who should ask you and close family for a full details history and long term core values of the victim as well as the changes observed.

Medication- A detailed list and the side effects are needed as often capacity assessments are affected by medication. Medication for Bipola or Schizophrenia are often used on patients with dementia which is not only dangerous but affects prefrontal cortex.

Neuropsycological Report- This tests the whole brain and one can see which part is affected. The 6 cognitive domains are tested. The most important area for decision making is the Frontal Lobe area or executive functioning. You need answers on vulnerability, judgement, reasoning, recall(which can lead to false memories). This report MUST be read by a Neurologist / Psychiatrist. Do not ask the Psychologist. They are NOT Medical Doctors.

It is VITAL that Family are a part of testing. Family information and history of the person is vital in assessing correctly the type of illness a person has. Personality changes and strange behaviours CANNOT be picked up in testing alone. Real life behaviours are essential. (Refer to medical capacity  another section devoted to this)


Often heard is "Capacity is Fluid". This is a standard comment. What does it mean? It does not answer IQ, Reasoning, Judgement and Vulnerability. It's a vague term to protect Doctors from liability.

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