From disrupting historical geopolitical alliances, to heated legal conflicts with adult film stars, to lashing out against anyone and everyone via Twitter, Donald Trump’s presidency doesn’t have a lack of viral news headlines. There is one headline, however, that’s reach may have a particular interest amongst estate litigators.
Earlier this year, Donald Trump submitted to a Montreal Cognitive Assessment (MoCA) as part of his presidential medical examination. In light of Donald Trump’s, shall we say questionable behaviour, it was speculated that he was cognitively unfit to hold the office of the presidency of the United States of America. However, to the surprise of some, or many, he scored a perfect 30/30 on the MoCA. The news of Donald Trump’s perfect score immediately went viral across the internet. As a result, a Canadian doctor is now questioning whether the MoCA has been compromised.
The MoCA is a widely popular tool for doctors to test age-associated cognitive functioning.
According to the New York Times, online searches for the MoCA spiked in the days following the press conference when Donald Trump’s score was announced in January 2018. The New York Times also reported that various versions of the MoCA were proliferated online closely following that press conference.
Dr. Hourmazd Haghbayan, a medical resident at the University of Western Ontario, warns that due to the recent mass media attention and exposure to the MoCA, the public’s familiarity with the exam could be producing false test results. A letter by Dr. Haghbayan warning the medical community of this dangerous effect of the news cycle was published last week in the JAMA Neurology medical journal.
In response to Dr. Haghbayan’s warnings, Dr. Kenneth Shulman of Sunnybrook Health Sciences Centre, University of Toronto, Department of Psychiatry asserts that the MoCA remains a useful tool despite its mass dissemination.
However, Dr. Shulman cautions that the MoCA does have limitations. He suggests that the MoCA should be used only as a screening tool for cognitive impairment and not as a determinative diagnostic instrument. Dr. Shulman warns further against relying on a perfect MoCA score to disprove impaired capacity, including a score that was conducted before the exam went viral due to Donald Trump. As capacity is specific to task, time and circumstance, Dr. Shulman stated that a high MoCA score is supportive of intact capacity but should only be used in conjunction with other elements of a comprehensive assessment including history and other investigations. It is also very useful as a baseline marker in a longitudinal study of a person’s capacity. To the corollary, Dr. Shulman acknowledges that a low MoCA score is also not determinative of impaired capacity, although such a score should raise the suspicion of a physician.
In the context of a will challenge, a MoCA score is a piece of evidence that is often available to those persons who were involved in the care of a testator. In light of Dr. Shulman’s analysis, a high or even perfect MoCA score on its own would therefore have limited probative value. However, one has to wonder whether a low MoCA score on its own can meet the minimal evidentiary burden required by a will challenger following the decisions in Seepa and Martin.
To conclude, Dr. Shulman firmly believes that the MoCA remains a useful screening tool but not a substitute for a capacity assessment. How much probative value a MoCA score holds is an analysis for the courts. With respect to the office of the presidency, however, Dr. Shulman proposes that a personality test may also be a useful screening tool to add to the presidential medical examination.
You can read the full article published by the New York Times on this issue here: https://www.nytimes.com/2018/07/16/science/trump-cognitive-test-moca-nyt.html
 Seepa v Seepa, 2017 ONSC 5368 (CanLII)
 Martin v Martin, 2018 ONSC 1840 (CanLII)