Posted April 1st, 2011

Dos and Don’ts of Detecting Diminished Capacity

For those who work in the field of nonprofit fund development, working effectively with older individuals and helping them make charitable gifts is all in a day’s work.

At times, however, development officers may find it necessary to determine whether a donor is mentally capable of completing a gift, especially one that involves the irrevocable transfer of assets in what may be a relatively complex transaction. Others involved in the process, such as the donor’s attorney, financial advisor and family members, may be able to help assess a donor’s capacity. In some cases, however, these parties may not be accessible and it becomes necessary to determine whether to proceed with a particular gift when a donor’s mental competency is in question.

Case in point

Take the following real-world fact pattern and consider the challenges presented. A woman, age 77, calls and asks to meet with you. She visits your office and after preliminary discussions says that she has been rethinking her estate plans and would like to leave her entire estate to your organization.

Upon further discussion she says that she had previously planned to leave everything to her niece, but her niece has taken several very expensive vacations in the course of a year. She says that she considers this a waste of money, and she doesn’t want the niece to one day spend her money in a similar fashion. She believes her money will be better used for charitable purposes.

On the one hand, what the donor would like to do may be entirely rational. But in this case, others on staff happen to know that the donor had changed her plans for her entire estate on several other occasions in the past and that the donor had previously been hospitalized for chronic substance abuse and may be suffering from advanced liver disease that has affected her cognitive abilities. What should be done in this situation?

While development officers are certainly not expected to replace mental health professionals when it comes to analyzing an older person’s judgment or mental state, a few general guidelines are helpful to keep in mind when it comes to assessing someone’s capacity to complete a thoughtful and purposeful major current or deferred gift.

The Dos

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

Why: By interacting with a potential donor repeatedly, you begin to notice behavior 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 will become more obvious as a result.

Visits with a donor also become an opportunity for you 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 signal to you to involve the donor’s attorney or other trusted advisors before moving forward with the gift.

In the example discussed earlier, the donor may very well change her mind if a follow-up meeting were scheduled. A gift uncompleted is more desirable to the professional development officer and the reputable nonprofit he or she represents than a gift 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 chosen 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 donor, and once there, he or she may not be able to focus on the complexities of planning a gift. What may at first appear to be a lack of judgment or cognitive skills could be the result 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 outside the home. Let donors suggest meeting at a time of day 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 nothing to do with decision-making skills. Development professionals may find the additional information they discover by visiting the donor in his or her own home invaluable as they establish a well-informed understanding of the donor’s general mental state.

Do involve others where possible.

Why: In many cases it is advisable to attempt to contact family members or a donor’s advisors. This can present issues, however, if you are not given permission to do so 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.

In our example, contacting the donor’s advisor to discuss the details of her gift might have been wise. In fact, that’s exactly what happened. The attorney indicated that the donor was suffering from a chronic mental illness and was not in a position to complete the anticipated gift.

The Don’ts

Don’t be ageist.

Why: Don’t let some of the “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 decision—nor does it mean the donor isn’t happy to be making the gift!

Development professionals should note that older persons 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 positive outlooks on life 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 leave a legacy for the future through their gifts, the older donors you work with will most likely 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 just might keep them “younger” and more mentally fit as they age.

Be sure to focus on whether or not the donor seems able to make clear, reasoned decisions rather than the temporary forgetfulness that can sometimes affect even the young and sharp-witted.

Don’t base a judgment solely on temporary circumstances.

Why: Like persons of any age, older donors can have experiences that can temporarily affect their decision-making capability. Recent events like the death of a spouse can cause stress, grief and depression, all of which 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

Documenting the process of making a gift is especially important in the case of older donors, whose gifts may in the future be contested on the grounds of mental incapacity. By maintaining complete and accurate records of your visits and conversations and the steps taken to assure that the donor was competent to make a gift, you protect not only your organization’s interests but also the wishes of donors and their desire to make a difference through their gifts. This is 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 encounter along the way.

Editor’s note: The preceding article is partially excerpted from the popular Sharpe seminar “An Introduction to Planned Giving.” See Page 7 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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