Legal Competence, a consulting niche for geropsychologists

By Paula E. Hartman-Stein, Ph.D.
July 1, 1999 - Last updated: May 31, 2011

Psychologists who work with older adults have increasing opportunities to expand their work beyond the outpatient office and long-term care setting to the challenge of the courtroom. Roles for psychologists are emerging such as evaluator and expert witness in guardianship cases and other civil matters affecting older adults. Without the fee restrictions of Medicare, the payers for these evaluations are typically attorneys, family members, nursing homes, or probate court. Psychologists employed by Veterans Administration facilities or nursing homes conduct such assessments as part of their everyday responsibilities, but growing numbers of psychologists in private practice are adding this potentially lucrative work to their array of services for older adults.

A common legal issue is determining whether an older adult is capable of caring adequately for personal needs and/or property. Every state has laws that provide guardians or surrogate decision-makers when an individual appears incapable of making important decisions. The concept of incompetence is no longer an all or none status. There is greater use of limited guardianships today, and evaluations need to differentiate the types of functions for which a conservator or guardian are needed.

Determining whether the individual can make informed decisions about medical treatment is another frequently asked question. The Omnibus Reconciliation Act of 1990 requires health care facilities receiving state or federal funds to inform their patients about rights involving advanced directives. The staffs of nursing homes need to know if their residents can make decisions about life support measures, ongoing medical and rehabilitative treatments, preventive procedures, and aspects of everyday care.

A trigger for mental competency evaluations may be a controversial change in a will, such as leaving millions of dollars to animal shelters and only $100 dollars to an only son. Testamentary capacity evaluations often occur after the person has died, requiring the psychologist to speculate about the cognitive status of the person at the time of the will change. The ability of the older adult to sign a valid business contract such as an antenuptial agreement is also a question that may require speculations of the client’s previous cognitive state.

Survey Results
The National Psychologist recently conducted an informal survey of psychologists on two Internet listserves to find out how often psychologists who do not specialize in forensics conduct competency evaluations as well as what they earn from this work. Those who responded reported the frequency of performing competency evaluations to range from 2 per year to 2 to 3 per week, with higher frequencies reported by psychologists who consult to nursing homes or are employed by Veterans hospitals. Many psychologists in private practice noted that requests for competency evaluations of older adults for legal purposes was minimal but was growing over the last few years.

Psychologists in private practice reported the range of charges to be from $60 to $800 per evaluation, depending upon the complexity of the case, exact referral question, and time involved. The most commonly reported charge for guardianship evaluations was approximately $500 to $600 per evaluation. The majority of respondents noted that they spend on average 5 to 7 hours per case, including interviews with the patient and corroborative sources as well as testing and report writing time. One VA psychologist estimated that the total time he spends on complex evaluations is 20 hours. One nursing home practice conducts routine evaluations of medical and end-of-life decision making capacity for all new admissions, charging the facility $150 per case.

Consulting Charges for Expert Witness Testimony
Relatively few competency evaluations of older adults result in the psychologist being deposed or testifying in court. Written reports for guardianship cases are usually submitted to Probate Court, and the judge or magistrate considers the expert=s findings prior to making a ruling. However, in complex civil cases involving testamentary capacity or questions of whether a business contract was valid, psychologists can be called into the courtroom as expert witnesses. Survey respondents reported charging fees ranging from $80 to $200 per hour. Some experts bill $600 for each half-day scheduled for court or deposition time, assuring payment for last minute cancellations of court dates.

Can Medicare be billed for evaluations of decision-making capacity? Medicare pays for psychological services deemed to be medically necessary. A minority of psychologists justified billing Medicare for competency evaluations because they argued that the protection of an individual is a medical necessity. Many psychologists seemed unaware that Medicare may object to payment for such services, should an audit occur. The evaluation of an older adult for cognitive and functional deficits may be part of a larger medical work-up, and in those cases the charge to Medicare may indeed be appropriate. However, most psychologists agreed that a private source needs to pay for competency evaluations whenever the underlying purpose of the assessment is by and large a legal matter.

Available Resources
Many psychologists who responded to the survey speculated that the demand for this type of work will only increase. The Department of Veteran Affairs in Milwaukee published a detailed practice guideline, Assessment of Competency and Capacity of the Older Adult in March 1997. For a broader understanding of issues of late life decision-making, contact the Center for Gerontology at Ball State University, Muncie, IN to obtain Aging Matters: Ethical and Legal Issues in Late Life (1996). Dr. Tom Grisso, Professor of Law and Psychiatry at the University of Massachusetts Medical School, is a national expert who has written extensively on the subject of legal competency assessments.

Paula Hartman-Stein, Ph.D. is a clinical psychologist and consultant at the Center for Healthy Aging in Akron, Ohio. She edited Innovative Behavioral Healthcare for Older Adults: A Guidebook for Changing Times (1998). She can be reached through the Internet at

Share Button

Related Articles