Wednesday, December 31, 2014
One of the more lively class discussions in my seminar occurs when we take up the issue of older drivers. All of my students have had some experience with an older driver, and it provides me the opportunity to cover the laws regarding driving as well as the implications of loss of driving privileges.
The Cleveland Clinic Journal of Medicine recently ran a column on when doctors should discuss driving issues with their elder patients .When should I discuss driving with my older patients? discusses different medical conditions and possible implications on safe driving. The article also covers the importance of being able to drive (at least to those of us in the U.S.) and the impact on an individual when the ability to drive is lost. The article explains the value of using driver evaluations:
It is therefore understandable for health care providers to feel reluctant or uncomfortable counseling older adults to give up their driving privileges. A health care provider who identifies driving safety concerns can refer a patient to a geriatrician for further risk assessment or to a certified driver rehabilitation specialist (CDRS) for a driving evaluation. A CDRS will also offer the patient and caregiver information on local resources for transportation alternatives. A list of local CDRSs can be found on the Association for Driver Rehabilitation Specialists website (www.aded.net). Many hospitals have occupational therapists who are CDRSs.
The article mentions that the evaluation includes not only an assessment of the "rules of the road" but also a cognitive evaluation as well as a driving test if the evaluator deems one necessary. There is a possibility that Medicare may provide payment; that "depends on diagnosis and the state carrier."
Tuesday, December 30, 2014
Researchers at the Polisher Institute at the Abramson Center for Jewish Life have published the results of a controlled study on use of non-drug approaches to behavioral assistance for individuals with dementia.
The study, titled "A Randomized Controlled Trial for an Individualized Positive Psychosocial Intervention for the Affective and Behavioral Symptoms of Dementia in Nursing Home Residents," is published in the January issue of the Journal of Gerontology (Series B: Psychological Sciences), which is accessible via subscription. From the abstract:
Objectives. This randomized controlled study tested the effectiveness of individualized activities, led by certified nursing assistants (CNAs), to increase positive and reduce negative affect and behavior among nursing home residents with dementia.
Method. Nursing home residents with mild to advanced dementia (N = 180) were randomly assigned to usual care (UC, n = 93) or 1 of 2 experimental conditions. Residents in the attention control group (AC, N = 43) participated in standardized one-to-one activities with their CNAs. Individualized Positive Psychosocial Intervention (IPPI) participants (n = 44) received a CNA-led activity matched to their interests and ability. Outcomes were residents’ positive and negative affect and verbal and nonverbal behavior.
Results. The IPPI and AC groups experienced similar benefits—more pleasure, alertness, engagement, positive touch, and positive verbal behavior—compared with UC. The AC group displayed more anger, uncooperativeness, and very negative verbal behavior than UC or IPPI.
Discussion. This study demonstrates the value of individualized activities for nursing home residents with dementia. In a stringent test, residents were happier and less angry during a customized intervention compared with a standardized intervention. Even brief individualized CNA-led activities bring pleasure to nursing home residents and constitute an effective strategy to enhance positive affect and engagement in persons with dementia.
It would be interesting to know more about what appears to be a potentially significant difference not only between the "standardized" interventions and the "individualized" approaches, but also between the different types of individualized approaches.
Tuesday, December 23, 2014
A timely reminder during this holiday season, and as we plan our New Year's Resolutions. Exercise regularly! From the Washington Post, reports of research from the University of Wisconsin School of Medicine and Public Health:
Evidence continues to accumulate that physical activity can help hold off the changes in the brain associated with Alzheimer's Disease, and perhaps the devastating symptoms of the disease itself. The latest information comes from researchers at the University of Wisconsin School of Medicine and Public Health, who looked at 317 late-middle aged adults and determined that those who exercised five times a week or more had fewer of the age-related changes in the brain that are associated with the disease, and did better on cognitive tests.
Age remains the single greatest risk factor for Alzheimer's, greater even than having the gene found in many people with the disease, the study confirmed. But "what we have shown here is that physical activity diminishes the deleterious influence of age," said Ozioma Okonkwo, an assistant professor of medicine at the school who led the study.
Friday, December 19, 2014
The journal Neurology, ran an article about a recent study on the impact occupations have on workers' brains. Occupational complexity and lifetime cognitive abilities opens with a recognition that "[t]here is a growing body of research suggesting that more stimulating lifestyles, including more complex work environments, are associated with better cognitive outcomes in later life." (citations omitted).
In the discussion, the authors note that "[t]he ... findings support the hypothesis that higher complexity of work is associated with later-life cognitive performance...." After discussing the specifics of the study, the authors offer this summary "the current study supports an association between more complex lifetime occupations and better cognitive abilities in later life. Of note, the evidence in favor of the differential preservation of cognitive abilities has been examined in the context of accounting for the likelihood of persevered differentiation, a major issue in the search for determinants of cognitive aging."
The full text of the article is available here.
Wednesday, December 17, 2014
Researchers at Stanford Unviersity School of Medicine have released their latest study of brain cell degeneration in mice, suggesting the potential importance of blocking the influence of certain molecular processes associated with inflamation and Alzheimer's disease:
“'Microglia are the brain’s beat cops,' said Katrin Andreasson, MD, professor of neurology and neurological sciences and the study’s senior author. 'Our experiments show that keeping them on the right track counters memory loss and preserves healthy brain physiology.'”
Here is Stanford's new release, summarizing the study published this month in the Journal of Clinical Investigation. Hat tip to Dickinson Law's Professor Laurel Terry for sharing this news.
Tuesday, December 16, 2014
Mark Friedman, an elder law and special needs attorney from New Jersey, recently wrote to comment on the important series offered by National Public Radio on use and misuse of certain medications in long-term care settings. Here is what Mark said:
"NPR ran a story on 'chemical restraints,' - nursing homes using anti-psychotic drugs to make unruly residents more pliable. According to the article, the residents are usually Alzheimer’s or dementia patients, and anti-psychotics can make the residents easier for staff to manage. But the drugs can be dangerous, increasing a resident’s risk of falls and exacerbating health problems. At high doses, anti-psychotics can also sap away emotions and personality and put the resident into a 'stupor.'
Administering drugs in this manner, any drugs, including anti-psychotics, without medical need and for the convenience of staff, is contrary to federal regulations. Unfortunately, it may also be widespread.
The NPR story includes a tool drawn from CMS data that shows the rate of residents on anti-psychotics at nursing homes across the country. You can look up the facility in which your loved one resides.
The news coverage shows that this issue is getting increased attention, and that’s a good thing. I think that as Americans age and more people have spouses and parents in nursing homes, the use of anti-psychotics as chemical restraints will have to diminish or end. People won’t stand for their loved ones being drugged into a stupor."
Thanks, Mark, for making sure we included this topic and the latest links for more coverage and your additional commentary. Along the same lines, I listened to an interesting follow-up conversation on AirTalk, a Los Angeles public radio affiliate's program, discussing "How California is Doing in the National Fight to Curb Over-Medication of Nursing Home Patients." That program, now available as a 23-minute podcast, included an articulate medical professional, Dr. Karl Steinberg, who described how he sees medication practices changing in long-term care, including better use of behavior health techniques, rather than medication, to help residents.
December 16, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0) | TrackBack (0)
Saturday, December 13, 2014
AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.
Here's the link to a podcast of the December 12, 2014 segment.
December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, December 11, 2014
In August, I reported on criminal charges filed that month in Iowa, charging a husband with sexual abuse of his wife who was living in a nursing home.
As a result of that post, I was invited by a reporter, who was working on an extended analysis of the case, to review certain information and records emerging from the case. Much of my own research is closely focused on issues both of capacity and protection.
The more one reads about the Iowa case, the sadder it seems. Even though at first it seemed the husband, a state legislator, might be expected to have sophisticated legal knowledge of the implications of what it might mean for his wife to be diagnosed with dementia, it became pretty clear -- at least to me, reading from afar -- that the husband is a fairly simple guy: A farmer, high school education, part-time legislator who liked pig roasts and parades, and someone who cared deeply for his second wife, trying as hard as possible to see her as "just a little" impaired.
I suspect that for many of us who have experiences with a loved one with dementia, there is a phase of denial, not just about the fact of dementia, but about the level of dementia. I remember one instance where a client always had her husband sign their joint tax returns, because even with Alzheimer's, he was "able" to sign his name clearly.
Reading the statute used to charge the Iowa husband also gave me pause. Iowa Code Section 709 was the basis of the sexual abuse charges. Sexual abuse in the third degree under Section 709.4 could be charged where a sex act "is done by force or against the will of the other person." That provision did not seem to apply. Charges could also be brought where the act is between persons who are not cohabiting as husband and wife, "if any of the following" is true: "The other person is suffering from a mental defect or incapacity which precludes giving consent."
Section 709.1A of the Act defines "incapacitation" to include "mentally incapacitated" or "physically incapacitated" and neither quite seemed to apply. Under Iowa law, "mentally incapacitated" means that a person is "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance." And "physically incapacitated" means that a person has a bodily impairment or handicap that substantially limits the person's ability to resist or flee."
So, how was the husband charged? He was charged under Section 709.4 (2)(a) on the grounds that his wife, with whom he was not "cohabiting," suffered from a "mental defect" that precluded giving consent.
So that makes the "elder law" issue fairly stark: Has his wife's diagnosis of dementia, especially advanced dementia, prevented her from giving legally effective "consent?"
Thursday, December 4, 2014
Via the Toronto Star:
Ever since she was a teenager, Ashley Kwong knew she wanted to open her own seniors’ home. Now, almost two decades later, her dream is finally becoming a reality. Kwong is launching Memory & Company next spring — and she’s touting the Markham facility as Canada’s first private Alzheimer’s program. Kwong says Memory & Company will have a spalike feel, with well-lit rooms, secured outdoor spaces and programming such as music therapy, gardening and yoga. There will be a five-to-one staffing ratio and an on-site nurse. Costs, which range from $100 per day for basic care to $150 for those with more advanced Alzheimer’s, are on a par with many long-term care facilities and retirement homes. While more expensive than many day programs, Memory & Company will offer a different type of experience, catered specifically to the needs of people with Alzheimer’s and dementia, Kwong says. Clients will be free to roam the health club’s 11,000-square-foot space with a circular design to decrease their dementia-related agitation while wandering through the rooms. Clients will also have access to a salon, gym, dance studio and hydrotherapy spa, alongside outside services like massages and physiotherapy. “We’re also using iPad technology to provide more individualized care, instead of planning the whole program for the month and not caring what people are in the building,” Kwong says. “It’s a different approach than the assembly style of day programs right now.”
Read more at the Toronto Star.
Monday, December 1, 2014
In the November 2014 issue of the Oregon State Bar Bulletin, an attorney-counselor at the Oregon Attorney Assistance Program, Douglas Querin, reports that he has had more calls over the past two to three years involving questions of age-related cognitive decline than in all the previous years he has worked in his position.
One factor potentially contributing to an increase is the number of lawyers who may be staying in practice longer, as a result of the economic downturn's effect on their retirement savings. In Oregon, more than a quarter of all lawyers are age 60 or over, and nearly half of the active members in the Oregon bar are age 50 or over.
"'The most heartbreaking situations are where a lawyer may have had a stellar reputation for 30 to 50 years of practicing, then changes with cognitive issues, in part because no one raises the problem, and he keeps practicing and gets into trouble, which raises the attention of the bar,' [Assistance Program Attorney Querin] says. 'Then you have a senior lawyer with a great reputation whose legacy ends up being under an ethical cloud.'
By the time such discussions take place, the impaired lawyer's reaction may be denial, because part of the cognitive changes may include the inability to recognize that a problem exists, says [Oregon neuropsychologist Michael R. Villaneuva]. 'An inability to know there are difficulties is part of the nature of what's happening to them.'"
In "Ready or Not: When Colleagues Experience Cognitive Decline," author Cliff Collins details signs and symptoms of potential cognitive impairment, drawing upon the ABA Senior Lawyer Assistance Committee's 2014 Working Paper on Cognitive Impairment and Cognitive Decline Worksheet. The article further suggests approaches to take with colleagues and urges members of the profession not to "ignore" any problems.
A companion article in the issue further addresses "Ethical Implications of Aging - The Graying of the Profession," including specific guidance in the ABA Model Rules of Professional Conduct and relevant formal ethics opinions.
"Thank you" to Dickinson Law Professor Laurel Terry for sharing her copy of the Oregon State Bar Bulletin.
There are so many things vying for our attention, and many of us may find ourselves easily distracted (say for example, by shiny objects). I like to use the example of Dug the talking dog from the fabulous movie, Up. (Going off on a tangent, consider using this movie in your classes, it's great) But I digress...or perhaps I was distracted....
Kurzweil AI ran an article on November 26th, 2014 reporting on a study on how to train an "aging brain" to ignore distractions. Disruptive sounds help aging brain ignore distractions reports on a new study, the results of which are published in the journal, Neuron. The study, Adaptive Training Diminishes Distractibility in Aging across Species is available with subscription or by purchase here. The abstract explains the study:
Aging is associated with deficits in the ability to ignore distractions, which has not yet been remediated by any neurotherapeutic approach. Here, in parallel auditory experiments with older rats and humans, we evaluated a targeted cognitive training approach that adaptively manipulated distractor challenge. Training resulted in enhanced discrimination abilities in the setting of irrelevant information in both species that was driven by selectively diminished distraction-related errors. Neural responses to distractors in auditory cortex were selectively reduced in both species, mimicking the behavioral effects. Sensory receptive fields in trained rats exhibited improved spectral and spatial selectivity. Frontal theta measures of top-down engagement with distractors were selectively restrained in trained humans. Finally, training gains generalized to group and individual level benefits in aspects of working memory and sustained attention. Thus, we demonstrate converging cross-species evidence for training-induced selective plasticity of distractor processing at multiple neural scales, benefitting distractor suppression and cognitive control.
Back to the Kurzweil AI article about the study. The Kurzweil story notes that "[d]istractibility (the inability to sustain focus on a goal due to attention to irrelevant stimuli) can have a negative effect on basic daily activities, and is a hallmark of the aging mind." The article notes the applicability of the research, including applications for individuals with autism or for "individuals struggling with a variety of distractions." The Kurzweil article notes the two-fold results of the study, "highlighting the therapeutic potential of this type of brain training to improve our ability to focus with age, it also shows that even in the aged adult, the brain is responsive to learning-based approaches that can improve cognition."
I was pondering the results of this study vis a vis individuals suspected of having diminished capacity. I was wondering whether there is application of the training to those individuals who may have difficulty with some ADLS if due to distractability. Would this be a temporary or long term solution and an alternative to guardianship for some?
Thursday, November 27, 2014
Recently I have encountered several thoughtful articles about the language we use, and the approaches taken, when talking with older persons. This seems to be an especially appropriate topic for the holiday season, when families often come together, sometimes from great distances. Whether we are talking with clients or family members, some of the same dynamics may be in play, especially when the question is about planning for the future.
From the ABA Commission on Law and Aging's Bifocal publication, comes David Solie's "The Wrong Signals: Shutting Down the Planning Conversation Before It Starts." He encourages us to "consider the psychological landscape of older clients -- it is a world embedded with two dominant agendas posing significant resistance to change. Together, these psychological currents create a deep inertia to disrupting the status quo." He labels these barriers to change as:
- Ambivalence and the "Righting Reflex," and
- The Need for Control
He suggests approaches, including the use of open-ended questions, reflective listening, and making a conscious decision about what words to use. For example, he suggests that when we start to discussion options, we explain more clearly that advance planning helps to "preserve choice" and avoids "loss of control."
Another potential problem may arise from "Elderspeak," a label social scientists use to refer to a tendency to use "patronizing" tones or words when speaking to anyone who is older. One recent article in McKnight's News made me chuckle, as it points to the well-meaning but potentially misguided use of words such as ""honey" by professionals when working with elders.
My father, a federal judge for more than 30 years, at age 89 may have forgotten many things -- but he does not take kindly to being called "honey" by strangers. He now has an entire assisted living campus, even a few of the other residents, calling him "Judge" or "Your Honor." I bet you might know a judge or two like that? When it comes to control, I'm not sure who is teaching whom about holding court.
Here's to more humor in all of our holidays -- and more opportunities for effective communication -- both within the family and beyond. Happy Thanksgiving!
Tuesday, November 25, 2014
Ramping up into Thanksgiving celebration, thinking about the things for which we are thankful---how about adding caregivers to that list? Huffintong Post Third Metric ran a three-part series earlier this month on Unsung Heroes: The Face of American Caregiving. The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Partner, the first installment in the series, focused on eleven extraordinary caregivers providing care to spouses/partners. The second, The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Parent covers 10 family members providing care for their parents., 9 of whom are over the age of 50. The final installment, The Unsung Heroes Who Give Up Everything To Take Care Of Multiple Loved Ones covers ten amazing individuals who have provided care for multiple generations.
Knowing the statistics on caregiving, a number of us will be called upon to provide the care. These folks will inspire you. Happy Thanksgiving.
Tuesday, November 18, 2014
In Gunnarson v. Transamerica Life Insurance Company, a federal district court in the state of Washington issued a November 6, 2014 order remanding the case to state court on diversity grounds, rejecting the company's argument that joinder of an individual sales agent as a defendant in the case was merely a step to prevent the out-of-state corporate entity from removing the case to federal court.
In rejecting the fraudulent joinder argument, the federal district court outlined several pending factual and legal issues between the parties arising from the dispute over long-term care insurance (LTCI) coverage. The issues include:
- whether the defendant agent's relationship with the insurance company, Bankers United (Transamerica's predecessor), was "disclosed" to the purchasers, relevant because under Washington Law, joint and several liability applies to agents of undisclosed principals;
- whether written promotional materials on LTCI provided by Bankers United barred a claim for misrepresentation in light of alleged oral misrepresentations by agent at the time of sale regarding dementia care; and
- whether a claim of misrepresentation, for a policy of LTCI sold 18 years ago, is barred by the statute of limitations, or whether there is an issue of fact about whether and when the purchaser knew or should have discovered that benefits would be paid only for "nursing home" facility care.
In Washington, as in many states, state law changed to expressly require LTCI insurers to cover non-nursing home based care; however, the statutory change apprently occured after the effective date of the policy in question.
The federal court order linked above resulted in remand to the state court for further proceedings under Washington law. (Allegations, of course, are not the equivalent of proof.)
Thursday, November 13, 2014
With the most recent news about actor Robin Williams as possibly having Lewy Body Dementia, readers might find free webinar materials from Morningside Ministries useful, at their website mm.learn.org. Look for the "In the News" link -- the materials strike me as objective and thoughtful.
Friday, November 7, 2014
Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.
Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.
Bloomberg Visual Data: Elder Care Sex Survey Finds Caregiviers Seeking More Training
The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review.
November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 5, 2014
Kurzweil Accelerating Intelligence (Kurzweil AI) reported in their October 21, 2014 news a story on new research, Hidden brain signatures’ of consciousness in vegetative state patients discovered. Here’s the opening paragraph “Scientists in Cambridge, England have found hidden signatures in the brains of people in a vegetative state that point to networks that could support consciousness — even when a patient appears to be unconscious and unresponsive. The study could help doctors identify patients who are aware despite being unable to communicate.”
The Kurzweil AI story includes the article’s abstract a segment of which we’ve included here
Going further, we found that metrics of alpha network efficiency also correlated with the degree of behavioural awareness. Intriguingly, some patients in behaviourally unresponsive vegetative states who demonstrated evidence of covert awareness with functional neuroimaging stood out from this trend: they had alpha networks that were remarkably well preserved and similar to those observed in the controls. Taken together, our findings inform current understanding of disorders of consciousness by highlighting the distinctive brain networks that characterise them. In the significant minority of vegetative patients who follow commands in neuroimaging tests, they point to putative network mechanisms that could support cognitive function and consciousness despite profound behavioural impairment.
Consider how these findings may be introduced in litigation where the patient is diagnosed as PVS, with one party seeking to have life-prolonging procedures removed and another objecting and seeking this test for the patient. Should we take this and other medical advances into consideration when drafting advance directives, especially instructions to our health care agents?
Tuesday, November 4, 2014
Yesterday, Tom Magliozzi, half of the Click and Clack duo of "car experts" on the long-running NPR radio show, passed away. I'm a fan of brothers Tom and Ray and their eclectic advice. I have a particular affection for Tommy's rowdy laugh -- that would start me grinning before I even heard the joke. It was sad news, especially as each of the stories I saw carried the report that his death was "from complications of Alzheimer's Disease."
Those five words imply so much, including the sadness, confusion and difficulties that may have attended the two years after he and his brother stopped broadcasting the weekly show. But, I also cannot help thinking that here was a man with "a full life, well lived." And one who's laugh will be missed by many.
Sunday, November 2, 2014
Start your week with a laugh, or at least a smile.
One of the many blogs I read, GeriPal, ran an excellent parody for Halloween that had me howling....with laughter at the author's cleverness. Addressing Unmet Palliative and Geriatric Needs of Zombies is a hysterical must-read. The title gives you an excellent preview. And don't ignore the links in the article to the other sources, especially the one regarding the speed with which the Grim Reaper walks (at least the section on strengths and limitations).
Thursday, October 30, 2014
Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.
To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case. For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers." The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death.
To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).
I can see this article providing a great platform for discussion, both among law students and practicing attorneys.