Lucid Intervals?

July 29, 2015 Suzana Popovic-Montag Capacity, Health / Medical Tags: , , 0 Comments

In a forthcoming article to be published in The Journal of the American Academy of Psychiatry and the Law, Ian Hull and Dr. Kenneth Shulman, among others, explore the concept of the lucid interval. A lucid interval is a legal concept invoked by those propounding a will to claim that a testator, suffering from some cognitive decline, experienced a moment of cognitive clarity sufficient to make a valid will. The medical term associated with this phenomenon is a “cognitive fluctuation.” Or in layman terms, we often refer to a person, who suffers from significant cognitive decline (such as dementia), as having “good days” and “bad days.”

However, recent medical findings on the subject of cognitive fluctuations suggest that this legal defence may have some challenges, namely, with regard to duration, significance and superficiality.

First, medical data suggests that any cognitive fluctuations are extremely short in duration, often in the realm of seconds or minutes. Such short-term changes in mental state are unlikely to allow a testator to appreciate all the factors needed in order to make a valid will. Second, medical data suggests that even if a testator could achieve some degree of mental lucidity, the fluctuations are so small and insignificant that no formerly incapable person could become temporarily capable so as to make a valid will. Finally, Hull and Shulman contend that higher level cognitive functions—such as memory and executive functioning (the ability to identify, evaluate and discriminate among various options)—are necessary to achieve testamentary capacity. And even when cognitive fluctuations occur, they occur in the area of alertness and attention—which are more superficial, lower level cognitive functions.

However, it is important to keep in mind that testamentary capacity is a legal concept that focuses not on a testator’s general mental state but on their mental state in the context of making a will. As such, it remains uncertain as to how courts will treat this data.

Regardless of which way courts interpret the new medical data, it is important that clinical realities inform legal decisions as they can and do enlighten courts with regard to this complex issue.

Thank you for reading.

Suzana Popovic-Montag

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