Posted January 11th, 2017

Dos and Don’ts of Detecting Diminished Capacity

Intelligence therap and brain research challenges as a medical concept with a connect the dots drawing puzzle connected by a blue pencil representing a doctor shaped as a human head and thinking organ.

For those in the gift planning field, working with older individuals comes with the territory, and helping older donors plan their charitable gifts is all in a day’s work.

Given the aging of America and the donor constituencies of many organizations (see “Introducing the ‘Gerontrophilanthroplutocracy’”), those working with older donors need to be particularly sensitive to a number of issues related to aging that can have a real impact on fundraising.

At times, for example, development officers may find it necessary to ascertain whether a donor is mentally competent to make a gift, especially one that involves the irrevocable transfer of assets in a relatively complex transaction. Others involved in the process, such as the donor’s attorney, financial advisor and/or family members, may be able to help assess a donor’s capacity.

In some cases, however, these parties are not readily accessible and the development officer must determine whether to proceed with a particular gift when a donor’s mental competency is in question. Below are some tips for handling such a situation with the utmost integrity.

The Dos

Do meet and/or talk with a donor multiple times.

Why: By interacting with a potential donor repeatedly, you begin to notice behavioral patterns. In your notes from each visit, you will establish a baseline of what is normal behavior for a particular donor, and any sudden changes in a donor’s mental state may become more noticeable as a result.

Visits with a donor also become an opportunity to evaluate the donor’s memory skills. For example, in your conversation you can ask the donor to paraphrase the gift plan he or she is considering. If the donor has trouble relating the basics of a gift annuity agreement he or she has been discussing with you over the last two months, for example, this may be a sign for you to circle back with the donor’s attorney, family members or other trusted advisors before moving forward with the gift.

The donor may change his or her mind if a follow-up meeting were scheduled. A gift left uncompleted is more desirable to the professional development officer and the reputable nonprofit he or she represents than a gift that goes awry because it was completed under questionable circumstances.

Do visit with the donor in more than one setting if possible.

Why: While meeting with a donor in your office or at a restaurant may be the most convenient option for you, sometimes navigating the way to your office or other meeting locale can leave a donor stressed and potentially disoriented—especially if he or she has gotten lost en route to meet with you. The act of simply getting to the meeting may tire an older individual, and once there, he or she may not be able to focus fully on the details of a particular gift. What may at first appear to be a lack of judgment or cognitive skills could simply be symptoms of fatigue and stress.

Planning a meeting at the donor’s home may be a welcome alternative because the donor will be in comfortable, familiar surroundings and won’t have to worry about making a special trip. Let donors suggest meeting at a time when their energy levels are at their peak and they feel at their best.

In addition, a meeting at the donor’s home may offer you further insight into his or her level of functioning. For example, you may find out whether the donor still cooks, does housework or pays the bills. Physical deficits may cause a donor to need assistance in these areas but often have no impact on their cognitive skills.

Do involve others where possible.

Why: In many cases it is advisable to attempt to contact family members or a donor’s advisors. This option can present issues, however, if you are not given permission by the donor. In correspondence with donors it may be prudent to suggest that they might wish to involve family members or advisors in a future meeting to discuss a gift.

The Don’ts

Don’t be ageist.

Why: Don’t let “symptoms” of aging mislead you. Hearing and vision loss, as well as slower reaction times, are common to the aging process. These diminished functions are not necessarily indicative of diminished mental facility. Additionally, a donor who may seem grouchy or uncooperative does not necessarily lack the capacity to make decisions—nor does it mean the donor isn’t happy to be making the gift!

Development professionals should note that older people who remain physically and mentally active are less likely to experience memory loss as they age. Studies have also shown that those seniors who have a positive outlook and feel involved in the care of future generations are psychologically healthier than those who don’t. Since planned and major gift work often revolves around helping donors make gifts that might not be realized until some point in the future, many older donors may already fit into this category.

Donors who want to make planned gifts have embraced the fact that their lives and their gifts will make a difference in future years. Their positive attitudes and focus on the future might keep them “younger” and more mentally fit as they age.

Don’t base a judgment solely on temporary circumstances.

Why: Like people of any age, older donors can have experiences that temporarily affect their decision-making capability. Recent events such as a serious illness or the death of a loved one can cause stress, grief and depression, all of which can affect one’s ability to make clear judgments. Certain reversible medical conditions, sometimes related to reactions to medications, can also affect the cognitive skills of seniors.

Whatever the cause, if you notice signs of diminished capacity, you may need to delay the gift planning process to determine whether a donor’s capacity is restored before pursuing further discussion of a gift. In most cases a donor’s normal functioning will return once the stressful time has passed or medical conditions have improved.

Challenges and rewards

Carefully documenting the process of making a gift is especially important in the case of older donors, whose gifts may be contested on the grounds of mental incapacity. By maintaining complete and accurate records of your visits and conversations and the steps taken to ensure that the donor was competent to make a gift and was advised to seek the input of family members and/or advisors, you protect not only your organization’s interests but also the wishes of donors and their desire to make a difference through their gifts.

Such records are especially important in cases when the donor becomes incompetent after making a gift that is later challenged on the basis that it was made after incapacity occurred.

Assisting older donors in completing planned gifts can be both challenging and rewarding. As a development professional, the satisfaction you experience from helping a donor successfully achieve multiple goals, while also providing valuable support to advance your mission now and in the future, is well worth the challenges you may encounter along the way.

The preceding article is partially excerpted from the popular Sharpe seminar “An Introduction to Planned Giving.” See sharpenet.com/seminars for information on upcoming dates. ■ 

The publisher of Give & Take is not engaged in rendering legal or tax advisory service. For advice and assistance in specific cases, the services of your own counsel should be obtained. Articles in Give & Take may generally be reprinted for distribution to board members and staff of nonprofit institutions and other non-donor groups. Proper credit must be given. Call for details.

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