Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships

50 Pages Posted: 1 Apr 2018  

Betsy Grey

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2018

Abstract

Whether to remove a person’s decision making authority in a guardianship proceeding is one of society’s most weighty determinations. As much as we value individual autonomy, we will strip that autonomy when a person is deemed legally “incompetent.” This competency determination has traditionally relied, almost exclusively, on clinical assessments of cognitive and functional abilities, based mainly on observed behavior. But developments in neuroscience — and particularly the advent of physiological biomarkers of Alzheimer’s disease — require us to think about a broader approach to competency determinations. Coupled with behavioral data, information from diagnostic biomarkers can add significant value to the competency determination. This article discusses the potential benefits and risks of use of this evidence in the competency determination, concluding that we need to anticipate its introduction into the equation, but with care to avoid overvaluing the evidence.

Keywords: Neuroscience and Law, Elder Law, Evidence, Probate, Civil Competency, Guardianship

Suggested Citation

Grey, Betsy, Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships (2018). 4 Wis. L. Rev. (2018). Available at SSRN: https://ssrn.com/abstract=3150610

Betsy Grey (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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