Sunday, October 12, 2014
NPR's Weekend Edition Sunday highlighted a new study that suggests people with Alzheimer's may hold on to happy or sad emotions beyond the event that triggers those feelings. Here's the link to the audio.
The University of Iowa researchers published their article in the September 2014 issue of the journal Cognitive and Behavioral Neurology, and it follows preliminary studies they published in 2010. The study used 20 minute movie clips with "happy" or "sad" themes with test groups. As summarized by Iowa Now:
About five minutes after watching the movies, the researchers gave participants a memory test to see if they could recall what they had just seen. As expected, the patients with Alzheimer’s disease retained significantly less information about both the sad and happy films than the healthy people. In fact, four patients were unable to recall any factual information about the films, and one patient didn’t even remember watching any movies.
Before and after seeing the films, participants answered questions to gauge their feelings. Patients with Alzheimer’s disease reported elevated levels of either sadness or happiness for up to 30 minutes after viewing the films despite having little or no recollection of the movies.
Quite strikingly, the less the patients remembered about the films, the longer their sadness lasted. While sadness tended to last a little longer than happiness, both emotions far outlasted the memory of the films.
The studies suggest the importance of positive stimuli from caregivers. The researchers emphasized that their findings "should empower caregivers by showing them that their actions toward patients really do matter." Researcher Edmarie Guzman-Velez said "Frequent visits and social interactions, exercise, music, dance, jokes, and serving patients their favorite foods are all simple things that can have a lasting emotional impact on a patient's quality of life and subjective well-being."
Friday, October 10, 2014
Although some think substance abuse is a problem for the young, a recent story in the New York Times dispels that thought. More Older Adults Are Struggling With Substance Abuse ran October 3, 2014 looks at the number of elders who are substance abusers-whether drugs or alcohol. The numbers are surprising:
An estimated 2.8 million older adults in the United States meet the criteria for alcohol abuse, and this number is expected to reach 5.7 million by 2020, according to a study in the journal “Addiction.” In 2008, 231,200 people over 50 sought treatment for substance abuse, up from 102,700 in 1992, according to the Substance Abuse and Mental Health Services Administration, a federal agency.
Although alcohol abuse seems to rank first, the "rate of illicit drug use among adults 50 to 64 increased from 2.7 percent in 2002 to 6.0 percent in 2013" according to the story. The article mentions several studies, not only looking at the extent of the abuse, but the reasons behind these addictions. Although for some, retirement may be a catalyst, many times it is not the sole reason, "'with the conditions leading to retirement, and the economic and social nature of the retirement itself, having a far greater impact on substance use than simple retirement itself..."' Some of the "firsts" experienced in later life, such as deaths of spouses and friends, may be a contributing factor that requires "coping skills" these folks haven't had to yet possess.
The article also touches on the potential lack of doctor training on dealing with elder patients with substance abuse issues, and notes some symptoms associated with dementia may have similar symptoms to those of addictions.
Thursday, October 9, 2014
Kurzweil Accelerating Intelliegence (Kurzweil AI) ran a story that got my attention. The signature of aging in the brain reports on the results of a study that looks at a "signature" in the brain "that may be the “missing link” between cognitive decline and aging and that may in the future lead to treatments that can slow or reverse cognitive decline in older people..."
This is a technical article and perhaps not the type we typically cover in our blog, but I thought it important enough to mention. Since I don't have a scientific background, I decided to excerpt some of the findings
they identified a unique “signature of aging” that exists solely in the choroid plexus. They discovered that one of the main elements of this signature was interferon beta, a protein that the body normally produces to fight viral infection.
Turns out this protein also appears to have a negative effect on the brain. When the researchers injected an antibody that blocks interferon beta activity into the cerebrospinal fluid of the older mice, their cognitive abilities were restored, as was their ability to form new brain cells.
Why this is important? It may lead to different treatments to help with cognitive decline-the researchers "hope that this finding may, in the future, help prevent or reverse cognitive decline in old age by finding ways to rejuvenate the immunological age of the brain."
Sunday, October 5, 2014
I've been posting quite a bit about end of life issues. I wanted to be sure everyone saw the story in the NY Times on September 25, 2014 about one child's struggle to honor her dad's wish to die at home. Unfortunately, this isn't a new issue, and clearly one that isn't near resolution. The story, Fighting to Honor a Father’s Last Wish: To Die at Home tells the story of Joseph Andrey and his daughter's efforts "to fulfill her father’s dearest wish, the wish so common among frail, elderly people: to die at home...But it seemed as if all the forces of the health care system were against her — hospitals, nursing homes, home health agencies, insurance companies, and the shifting crosscurrents of public health care spending." On many occasions her dad had been discharged from the hospital to a SNF for rehab. This time she wanted to have him discharged to home, but was unsuccessful and her dad was transferred to a SNF, again.
The blog post illustrates the catch-22 within which Mr. Andrey and his daughter found themselves. The post also explains the recently-released Institute of Medicine report on Dying in America (we blogged about it earlier). Returning to Mr. Andrey's story, the article includes a short biography of his life (including a brief tenure as a child in Vaudeville), his wife's decline from Alzheimer's, his up close and personal...and ongoing...experience with the U.S. health care system, and ends with his final years. He had frequent stays at SNFs because of the inability to secure home health care in a system where there were financial incentives for SNFs but not the same profitability, if you will, for the home health agencies.
Despite all of his daughter's efforts, Mr. Andrey didn't die at home, but in a hospice within a hospital. If you read the entire article, by turns you will be appalled and saddened. If you assign this to your students, there are many opportunities for discussion about the U.S. health care system as well as end of life care in our country.
Tuesday, September 30, 2014
Via the Canberra Times:
Australia, with its weather, way of life and friendly people, has a unique advantage to produce "dementia-friendly" communities and help those affected lead fulfilling lives, according to a visiting British expert. Steve Milton, a director of Innovations in Dementia in Britain, was in Canberra this week to give a talk about dementia-friendly communities on behalf of Alzheimer's Australia. There were sound economic reasons for supporting people with dementia at a community level, he said. "If you were able to prevent people with dementia going into care homes earlier than they needed to by 12 months, we're looking at a saving of $2 billion, which is not an insignificant amount to do something that people want anyway." Alzheimer's Australia national president Graeme Samuel said it was important to help people with dementia sustain their independence, dignity and sense of community. Milton said access to public transport, ensuring environments were easily accessible to people with dementia and things such as Australia's many sports clubs were important factors in helping those affected overcome barriers such as social isolation and stigma.
Monday, September 29, 2014
The Workplace and People with Disabilities:
Past, Present and Future
Webcast Date: Wednesday, October 29, 2014
Webcast Time: 12:00 - 1:00 p.m. EDT
The ILR Online webcast series 2014-15 line-up will feature programs with a “past, present and future” theme, to align with Cornell University’s 150th anniversary and the ILR School’s 70th anniversary in 2015.
The October program will focus on employment and disability to coincide with National Disability Employment Awareness Month. Academic, policy and advocacy experts will share historical perspectives, discuss current initiatives and the state of employment for people with disabilities today, and examine issues that need to be addressed to support full workplace inclusion of people with disabilities in the future.
The program will be hosted by Susanne Bruyere, director of ILR’s Employment and Disability Institute, and Lisa Nishii, associate professor of human resource studies.
ILR Online webcast series programs feature expert insight and the latest research on today's world-of-work issues, giving you practical information that can improve your workplace and advance your organization.
For more information about upcoming webcasts, please contact Lori Biechele, Cornell University ILR School, 607-254-8941, email@example.com.
Previous webcasts produced by the Cornell ILR School can be viewed here.
Sunday, September 21, 2014
A more positive way perhaps to word the question might be "how old do you want to live to be?" The Atlantic ran an article that phrased it a bit differently, but still focused on at what age is long lived enough? The author, Ezekiel Emanuel, serves as Director, Clinical Bioethics Department, National Institutes of Health & chairs U. of Pa. Department of Medical Ethics & Health Policy. Why I Hope to Die at 75 appeared in the September 17, 2014 issue. Dr. Emanuel writes about his decision that 75 is his "magic number" and how others have tried to convince him that he should change his mind on this. Why 75? He explains
By the time I reach 75, I will have lived a complete life. I will have loved and been loved. My children will be grown and in the midst of their own rich lives. I will have seen my grandchildren born and beginning their lives. I will have pursued my life’s projects and made whatever contributions, important or not, I am going to make. And hopefully, I will not have too many mental and physical limitations. Dying at 75 will not be a tragedy. Indeed, I plan to have my memorial service before I die. And I don’t want any crying or wailing, but a warm gathering filled with fun reminiscences, stories of my awkwardness, and celebrations of a good life. After I die, my survivors can have their own memorial service if they want—that is not my business.
He makes it clear that he is not supporting physician-aided dying and if he lives past 75, so be it-he's not going to take steps to end his life. Where his wish comes into play is the type of health care he will consent to receiving once he hits that age. He argues that more years don't necessarily mean good years, noting that seventy is NOT the "new fifty". Although older folks may be more active or in better health, there is still a rise in disability which he points to as a reason that the focus shouldn't just be on quantity. He quotes another expert, "health care hasn’t slowed the aging process so much as it has slowed the dying process." The fact of living longer but more incapacitated holds no appeal for him.
Dr. Emanuel looks at examples of health care issues, such as stroke and dementia, using statistics and real stories to illustrate his point. Regarding Alzheimer's, after citing to statistics on the correlation between aging and dementia, he offers
[e]ven if we aren’t demented, our mental functioning deteriorates as we grow older. Age-associated declines in mental-processing speed, working and long-term memory, and problem-solving are well established. Conversely, distractibility increases. We cannot focus and stay with a project as well as we could when we were young. As we move slower with age, we also think slower.
He also discusses the correlation between age and creativity-an inverse relationship it seems--the older you are, the less creative, unless you are one of those rare individuals (we all know of someone quite famous who did something remarkably creative at an advanced age---think Grandma Moses).
As we age, to accommodate our "current selves" we constrict how we live, and as Dr. Emanuel describes, we find ourselves "aspiring to and doing less and less". Yet we each enjoy different things. This calls to mind some of the arguments we hear about the use of substituted judgment in health care/end of life decision-making. We each define a quality of life in different ways, and Dr. Emanuel recognizes that his view may be a bit harsh.
Yet, he contends, it is not about the elder individual racking up the years. There is a burden on the family to be considered, and he says "I will leave aside the very real and oppressive financial and caregiving burdens that many, if not most, adults in the so-called sandwich generation are now experiencing, caught between the care of children and parents. Our living too long places real emotional weights on our progeny."
Back to his plan when he reaches 75. As far as health care, here is his plan: to "stop getting any regular preventive tests, screenings, or interventions ... [and] accept only palliative—not curative—treatments if ... suffering pain or other disability." He makes it clear that this is his view and he respects the views of others that are contrary to his.
This article provides a wealth of topics for discussions with our students and is worthwhile reading, even though you may hold a contrary view to Dr. Emanuel.
Thursday, September 18, 2014
The Institute of Medicine of the National Academies has released a new report on end of life issues. The report, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life was released on September 17, 2014. The report brief offers an explanation of the importance of this new survey, including the sheer numbers of American elders who are living with some limitations on ADLs, chronic illness, cognitive issues and more. As well the report points to issues with the health care system, including problems in accessing care, a lack of palliative care specialists and knowledge about end of life care, and a health care system that works out of sync, with economic incentives. The brief concludes with a call for "person-centered, family-oriented approach that honors individual preferences and promotes quality of life through the end of life [as] ... a national priority." The report is "a comprehensive assessment of the knowledge gaps, structural problems, and financial disincentives that hamper delivery of optimal care and makes cross-sectoral recommendations to achieve compassionate, affordable, sustainable, and effective care for all Americans."
The website also includes a link to key findings, core components, an infographic and a quiz (5 questions) which is suitable for use in class.
Wednesday, September 17, 2014
(Thanks to Judy Stein, Executive Director for the Center for Medicare Advocacy (CMA) for sharing this).
Monday, September 15, 2014
One of our great readers, attorney Paul Meints from Bloomington, Illinois, has shared ideas about how to make Powers of Attorney (POAs) more responsive to practical concerns, including the possibility that when tough times eventually occur, the principal may fail to realize or recognize his or her own waning abilities, including the ability to drive safely. Here is language Paul has tailored to address these potential concerns:
Inability to Function as Principal; Inability to Operate a Motor Vehicle in a Safe and Proper Manner:
My successor Agent or My Attorney may execute and deliver an Affidavit that I am unwilling or unable to serve or to continue to serve, and such affidavit shall be conclusive evidence insofar as third parties are concerned of the facts set forth therein, and in such event any person acting in reliance upon such affidavit shall incur no liability to my estate because of such reliance. The decision as to determining my inability (1) to properly, prudently, and fully function as Principal and/or (2) to operate a motor vehicle shall be made by a Committee consisting of three of the persons [or such person’s designee] named on page one together with one other person selected by my attorney or the family committee. I authorize all health care providers who may have provided, or be providing me with any type of health care (physical and mental), to disclose all direct or Protected Health Information (HIPAA/PHI) to each member of the family committee. If, in the Committee's sole and absolute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of expending funds for my own use and benefit or am not giving prompt attention to my financial affairs, then my successor agent is authorized to act on my behalf. If, in the Committee's sole and absolute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of operating a motor vehicle in a safe, proper, and prudent manner, then my successor agent, My Attorney, or both are authorized to release and terminate my driving privileges.
I like the fact that this language realizes that not all agents will feel comfortable making decisions on sensitive matters by acting alone, and that the POA actually provides guidance for how to make an ulitimate decision about the principal's inability to handle finances or drive. In essence, this POA would appear to permit the agent to override the principal's resistence. Thanks for sharing this language, Paul. Reactions from other readers? Would your state recognize the vailidity of such language?
Monday, September 8, 2014
Have you ever considered the similarities between caregiving and improv? Probably not--who would-they certainly seem to be quite dissimilar occupations. Yet when you think about their characteristics, they are quite similar. The website, In the Moment, which is focused on "creative ideas for training staff" lists on the landing page characteristics that apply to both, including being flexible, adaptable, courageous, spontaneous, generous, selfless and trusting.
and within twenty four hours ... was on a plane flying to be with ... family and wait for ... Dad to pass away. During that time of sitting, laughing, thinking, crying and rambling -[she]...realized that the world of Improvisation was very similar to the world of caregiving and Alzheimer's disease and dementia.... [unsure] why the idea hit ... then, maybe it was divine inspiration, maybe someone was telling [her] the reason why [her] ... Dad had Alzheimer's or maybe [she] ...was sleep deprived. Probably all of the above... [Having]... attended a lot of very informative and well executed workshops and trainings... [yet] not a very good learner... [she] remember[s] sitting in a class and listening to the instructor talking about effective communication with persons with dementia."
Then inspiration struck, as she says in her own words "[a]ll I could think of was how tired I was of sitting . If she would just do this improv exercise it would illustrate her point more clearly and get everyone up and moving. Hmmmm...." She wrote grant applications, with this excerpt from her abstract, explaining the parallels
The rules of Improvisation parallel the “ rules “ of Caregiving for a person with Alzheimer’s. Each rule of Improv has exercises, hands on techniques to illustrate points of care. Improv itself teaches characteristics that are essential to the caregiver : listening, validation, accepting others’ realities, problem solving and creativity to name only a few. I see improvisation as another tool for caregivers and for trainers to use to create a better quality of life for each person with Alzheimer’s. I want to clarify that this this is not training of how to do Improvisation. But training that uses Improvisation to teach Alzheimer care.
The "rules" she references can be accessed here. The website also provides information about the 6 week training program, training tips, and other resources. Ultimately, the goal of this project is to "[e]Employ ... theater games with creativity exercises ... [to] provide caregivers with the methods to become better at what they do."
Live in the moment--and enjoy that moment with a family member who has dementia---very good advice indeed.
Friday, September 5, 2014
We have several posts about the use of technology in caregiving. I cover it in my classes (do you?) and in particular, I want my students to think about consent, privacy and autonomy. Several years ago, there were stories about PARO, a therapeutic interactive robot designed to resemble a baby harp seal, and its use with certain individuals, including those residing in nursing homes. (The company website has quite a bit of information about PARO, including research papers.) There are lots of different types of technologies available, whether assistive or monitoring.
A recent article in the San Jose Mercury News (and picked up by my local paper, the Tampa Bay Times) Meet Paro, a robot designed to help the elderly, reports on the results from using Paro in a local retirement community. This article looks at the issues of ethics as well as how the use of such "socially assistive" robots results in less isolation for some residents. The story highlights the interactions of some residents with the robot. The article also reviews the debate regarding using such robots. For example, Sherry Turkle, an MIT social scientist is quoted in the article offering a concern that
"faux relationships" with machines may detract from human connections..."It's not just that older people are supposed to be talking. Younger people are supposed to be listening... [and] ... [w]e are showing very little interest in what our elders have to say." Robots like Paro may offer comfort to isolated seniors, Turkle has written, but it could "make us less likely to look for other solutions for their care."
Another expert, Professor Maja Mataric, offers a counter-view, that such robots provide both "valuable reinforcement and motivation" and notes that
While robots aren't a complete substitute for human interaction, she stressed, they may play a vital role since "there just simply aren't enough people to take care of our very large and growing elderly population." ... [and] added: "We need to think about the humane and ethical use of technology, because these things are coming."
I think this is a great topic for discussion with students. Let me know what you think.
Thursday, September 4, 2014
George Washington Law Professor Naomi Cahn alerted us to the Washington Post coverage on new research analyzing causation factors to explain why 2/3 of all persons with Alzheimer's Disease are women. Lots of opportunities here for important classroom discussions:
"It has long been known that more women than men get the deadly neurodegenerative disease, and an emerging body of research is challenging the common wisdom as to why. Although the question is by no means settled, recent findings suggest that biological, genetic and even cultural influences may play heavy roles.....
Because advancing age is considered the biggest risk factor for the disease, researchers largely have attributed that disparity to women’s longer life spans. The average life expectancy for women is 81 years, compared with 76 for men. Yet 'even after taking age into account, women are more at risk,' said Richard Lipton, a physician who heads the Einstein Aging Study at Albert Einstein College of Medicine in New York.
The area of inquiry has been growing in part because of a push by female Alzheimer’s researchers, who have formed a group to advocate for a larger leadership role in the field and more gender-specific research. 'Scientific workforce diversity is very important because it’s much more likely to shape the research agenda,' said Hannah Valantine, the chief officer for scientific workforce diversity at the National Institutes of Health and a professor at Stanford University’s medical school.
Running counter to the longevity argument, Lipton’s research suggests that women who are 70 to 79 years old are twice as likely as men the same age to develop Alzheimer’s or other forms of dementia. After 80, the risk is identical and remains similar throughout the rest of life, Lipton said."
For more on emerging issues and indictors, see "Why Do More Women Get Alzheimer's?" by Frederick Kunkle. Thanks, Naomi!
Monday, September 1, 2014
Washington Post writer Frederick Kunkle profiles Meryl Comer, author of "Slow Dancing With a Stranger," a new book that "offers an unflinching and intimate account about what it means to surrender one's career to care" for a loved one stricken with Alzhemier's. In describing the author and her book, he writes:
"Its a a love stsory without a happy ending, because the ending for Alzheimer's patients can seem more like endless twilight. And it's a call to arms for caregivers such as Comer....
When Alzhemier's took hold, [her husband, chief of hematology and oncology at NIH, Harvey Gralnick] was a fit 56-year-old -- he ran six miles a day -- who dressed impeccably wearing the latest fashions beneath his lab coat.... For a time, he was able to mask his symptoms behind his reputation as a brilliant if eccentric scientist....
As his condition worsened, Comer, too, gave up her career -- and she adds with a note of bitterness, her 'prime.' In her blunt-talking manner, she acknowledged that she did so not entirely out of devotion but because doctors told her more than once, wrongly, that the progress of her husband's disease would not be long.
Finances, too, were a factor. It was almost impossible to find care that she felt would be satisfactory for her husband and yet affordable. Her burden intensified even further when her mother, too, developed Alzheimer's; her mother now shares the same home with Comer and her husband."
The book is meant to make people mad -- and more realistic and focused -- about the need for solutions. The article quotes George Vradenburg, a co-founder with Comer of the nonprofit group USAgainstAlzheimer's, who hopes that Comer's book will stir conversations about a disease many prefer not to think about. "I hope America gets mad," Vradenburg is quoted as saying.
For more, see "Alzheimer's -- Thief and Killer," in the Washington Post.
Friday, August 29, 2014
Glen Campbell was diagnosed with Alzhemier's disease in 2011, and with his wife, he bravely told the public. What happened next -- on his "Goodbye Tour"-- has been turned into a vivid, moving film. The trailer of "Glen Campbell ... I'll Be Me" is now available, in advance of the official October 2014 release of the film.
Thursday, August 28, 2014
Here's another great educational video suggestion from John Marshall Law School's Barry Kozak.
Unfortunately, this video is in a format that I cannot show directly here. Nonetheless, I'm recommending it too, and providing the link. Alanna Shaikh's "How I'm Preparing to Get Alzheimer's" is provocative, with great dashes of wry humor. She uses her father's twelve year history of dementia as incentive to prepare herself for getting dementia. Alanna rejects "denial" and she's realistic about the likelihood of "prevention or cure" in her lifetime. She talks about preparing for the "Alzheimer's Monster."
Listen to her practical steps to prepare. What do you think of them? Realistic? What I appreciate is her focus on working harder to become a better person now, in hope of carrying forward that quality as a deeply engrained personality trait. She's echoing my own belief, based on observation, that "personality" tends to concentrate over time, with the strongest held traits lasting the longest -- whether for good or ill effect. Once the rational mind is no longer in control, those essential traits do seem to dominate.
Sunday, August 24, 2014
We've reported several times, including here and here, on recent academic and professional publications that address the sensitive topic of "consent" to sexual relations for individuals residing in nursing homes.
The Huffington Post and other media reports now bring the topic into the general public realm with coverage of a complicated case emerging in Iowa, where a husband has been arrested on charges connected to sexual relations with his wife, a resident with Alzheimer's, in her nursing home room.
Two items that may be critical to the outcome of the case: Alleged "notice" to the husband by the facility that his wife was no longer legally able to give consent to sexual relations, and the identity of the husband as a public figure. The fact that the husband is a state legislator is a reason why the case may get wide news coverage. But that wider coverage could also generate important discussion and debate about the deeper legal, personal and public issues. From one article:
"An Iowa legislator who allegedly had sex with his mentally incapacitated late wife has been charged with sexual abuse. Henry Rayhons, 78, a Republican state representative from Iowa House District 8, was told by medical staff on May 15 that his wife, 78-year-old Donna Rayhons, no longer had the mental ability to consent to sexual activity, according to a criminal complaint obtained by WHO-TV. Donna Rayhons, who suffered from Alzheimer's disease, had been living in Concord Care Center in Garner, Iowa, since March, according to the Des Moines Register....
In an interview with law enforcement in June,Rayhons allegedly confessed to 'having sexual contact' with his wife, according to KCCI. He also allegedly admitted that he had a copy of the document that stated his wife did not have the cognitive ability to give consent. Rayhons was charged with third-degree sexual abuse on Friday.
Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, told the Des Moines Register that even though spousal rape has been illegal in Iowa for about 25 years, arrests for the crime are rare and 'convictions are even rarer.' Barnhill also noted that sexual assault between spouses is not considered a 'forcible felony' in Iowa."
According to new sources, the family has also made a statement.
August 24, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, August 22, 2014
Articles recently posted by U.S. law school academics on the Social Science Research Network's (SSRN's) Elder Law Studies network:
- "Rethinking ERISA's Promise of Income Security in a World of 401(k) Plans," by Prof. Larry Frolik (Pitt Law), to be published in the Connecticut Insurance Law Journal (2014)
- "Making Mediation Work in Guardianship Proceedings: Protecting and Enhancing the Voices, Rights and Well-being of Elders," by Prof. Jennifer L. Wright (St. Thomas Law), for the Journal of International Aging, Law and Policy (2014)
- "Storm Surges, Disaster Planning and Vulnerable Populations at the Urban Periphery: Imagining a Resilient New York after Superstorm Sandy," by Prof. Andrea McCardle (CUNY Law) to be published in the Idaho Law Review (2014)
- "Letters Non-Testamentary," by Deborah Gordon (Drexel Law), to be published in Kansas Law Review (2014)
- "Complex Decision-Making and Cognitive Aging Call for Enhanced Protection of Seniors Contemplating Reverse Mortgages," by Profs. Debra Stark (John Marshall Law), Jessica Choplin (Depaul), Joseph Mikels (Depaul), and Amber McDonnell (John Marshall Law), for the Arizona State Law Journal (2014)
Thursday, August 7, 2014
Wednesday, August 6, 2014
In recent Formal Ethics Opinion 2014-F-158, the Board of Professional Responsibility for the Supreme Court of Tennessee addressed the following interesting question:
"Can a lawyer who represented a testator refuse to honor a court order or subpoena to disclose, prior to the client's death, a Will or other testamenatry document executed when the testator was competent on the basis that the document is protected against disclosure by the attorney-client privilege or confidentiality."
The Board's opinion indicates that not only "may" the lawyer refuse to disclose the will, but where circumstances indicate the client is no longer able to give informed consent because of intervening dementia, the lawyer may have a duty to raise all "nonfrivolous grounds" to protect the will from disclosure, including privileges under Tennessee statutes, citing Rule of Professional Conduct 1.6(c)(2).
In opening its analysis, the Board noted that it has become "increasingly common for courts to appoint attorneys in a representative capacity to represent individuals suffering from dementia and/or Alzheimer's who are the subject of a dispute or litigation regarding management of the individual's funds and/or person." During the course of the dispute, parties may attempt to seek review of the will prior to the death of the testator, citing reasons such as the need to "engage in estate planning."
The Board acknowledged the potential for facts that would permit the lawyer to disclose the contents of the disabled client's will, such as when a "lawyer believes the disclosure of the contents ... would be in furtherance of client's interest."
In commentary on the Tennessee Board Ethics Opinion, the ABA/BNA Manual on Professsional Conduct, in Vol. 30, No. 15, observed that "a 2010 law review article cites demographic patterns that have increased the likelihood of such scenarios," pointing to "A Common Thread to Weave a Patchwork: Advocating for Testatmentary Exception Rules," 3 Phoenix L. Rev. 729, 734-35 (2010) by then law student Andrew B. Mazoff, now an attorney in Phoenix.
Thanks to my colleague and ethics guru, Laurel Terry, for sharing this ethics opinion.