Friday, April 25, 2014
Chicago-Kent Law Professor Alexander A. Boni-Saenz shared a copy of his law review article, "Personal Delegations," published recently in the Brooklyn Law Review. Here is an intriguing excerpt from the introduction, minus the footnotes:
"Donald and Gloria Luster married on October 5, 1963 and had four children. Donald retired in 2005, and it was about this time when Jeannine Childree, his youngest daughter and a registered nurse, noticed that he was exhibiting signs of dementia. After a number of consultations with doctors, Donald was officially diagnosed with Alzheimer's disease in 2009 due to his memory loss, disorientation, and other cognitive impairments. Based on these medical evaluations, a Connecticut probate court declared Donald incapable of handling his personal or financial affairs and appointed Jeannine and his other daughter, Jennifer Dearborn, as his guardians. Shortly thereafter, Gloria filed for a legal separation from Donald, and in response, the daughters counterclaimed for divorce, suspecting their mother of financial and emotional abuse. Should the guardian-daughters have the authority to sue for divorce on behalf of their father?"
The author then offers a second fact pattern, involving a man serving as agent for his incapacitated brother under a power of attorney, asking whether the agent should have "authority to execute a will on his brother's behalf," where only a small percentage would be left to the brother's biological child.
Professor Boni-Saenz suggests that the numbers of people lacking "decisional capacitiy" are in the millions and "will only increase with an aging population." This likelihood "presents many difficult questions" while also creating "an opportunity to rethink and reevaluate how the law treats people with cognitive impairments." He then introduces his "personal delegation" thesis, in support of giving greater deference to agents in certain circumstances, permitting them to make binding decisions that might otherwise be questioned under what he outlines as a bias or presumption in current law:
"The central claim of this article is that in the case of decisional incapacity, decisions that implicate fundamental human capabilities should generally be delegable. Thus, it rejects the rationale employed by courts to justify nondelegation--that these types of decisions are too personal to be made by another. This line of reasoning confuses nondelegation for nondecision, and it only serves to privilege a status quo outcome over the expression of fundamental human capabilities by individuals with cognitive impairments."
The full article is easily available on SSRN and on Professor Boni-Saenz' faculty web page, linked above.
April 25, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
My Penn State colleague from Hershey Medical Center, Dr. Claire Flaherty, has shared with me a another fascinating resource, "What If It's Not Alzheimer's?: A Caregiver's Guide to Dementia," by Gary Radin and Lisa Radin.
The first chapter provides "The ABCs of Neurodegenerative Dementias," including frontotemporal dementia (FTD), Lewy Body Dementia, vascular dementia, as well as Alzheimer's Disease. Key chapters including "finding the A Team" of specialists, and a guide to therapeutic interventions.
The book reminds us that with some forms of dementia, particularly early onset dementias such as FTD, changes in personality or executive function may be the first signs, and easily misunderstood. For example, the individual may manifest:
- hypersexuality, including promiscuous sexual encounters with strangers; or
- apathy or indifference to grooming and hygiene; or
- "hyperorality" with disinhibited consumption of large amounts of food; or
- poor judgment with a lack of sense of consequences, sometimes coupled with poor impulse control
One chapter is unique, emphasizing the potential importance, after death, of an autopsy of the brain, and thus providing families with a way to contribute to biomedical research and the hope for better answers in the future.
Wednesday, April 23, 2014
On April 24, I have the good fortune to be working with a neuropsychologist from the neurology department at Penn State Hershey Medical Center in presenting a program on "Dementia Diagnosis and the Law," for a meeting of the Estate Planning Council in York, Pennsylvania. Professor Claire Flaherty and I have "traded" presentations in the past, with her speaking at the law school and me speaking at the medical school, but this will be our first time presenting together. We're excited.
One of the important lessons that I've learned in working with Claire is the clear potential for cognitive impairment to exist without the "usual" symptoms associated with "Alzheimer's." For example, much of Claire's work is with patients and families coping with early onset dementias. Because Frontotemporal Dementia or FTD (sometimes also referred to as Frontotemporal Lobar Degeneration or FTLD) can begin to manifest in persons aged 45 to 64 years, the onset may be overlooked or misunderstood. Plus, as Claire reminds me, "FTD is primarily a disease of behavior and language dysfunction, while the hallmark of Alzheimer's Disease is loss of memory."
For legal professionals, including those asked to prepare deed transfers, wills or estate planning documents, the potential for subtle presentations of cognitive impairment can be especially significant. Making sure the client is oriented as to "time, place and person" may not be enough to address the potential for loss of judgment, thus opening the door for unusual gifts, risky financial decisions or even of adamant rejection of once trusted family members.
A good place to turn for information about early onset forms of dementia, including FTD, is the Association for Frontotemporal Degeneration or AFTD -- or join us for the York Estate Planning Council meeting this week.
ACL Webinar on Elder Abuse and Neglect of Persons with Dementia- What We Know and Where We Are Going
When: Thursday, May 8, 2014 from 3:00 p.m. to 4:15 p.m. Eastern
This webinar is the next session of the ACL Alzheimer’s Disease Supportive Services Program Technical Assistance Webinar Series. The purpose of the webinar series is to provide helpful, current, and applicable information for professionals who work with people with dementia and/or their caregivers.
This particular webinar will focus on elder abuse and neglect as it relates to people with dementia. Participants will learn about:
- The incidence and prevalence of elder abuse, especially abuse of those with dementia
- Tips for screening and assessing for elder abuse in the population of people with dementia
- Programs that are addressing elder abuse among the population of people with dementia
Registration is required. After registering, you will receive a confirmation email that includes the link you will need to enter the webinar on May 8th.
For instructions on how to connect to the webinar by telephone, contact Sari Shuman by email at email@example.com or by telephone at 312-335-5823.
Friday, April 18, 2014
My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad. A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney. The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA. The conviction was affirmed.
On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft. The broadly worded POA was executed by the mother in 2006 when everyone was healthy. The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility. The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility.
It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role. For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts.
Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009. Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals. And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.
The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring. Not easy -- not fun -- and, again, sad.
Tuesday, April 8, 2014
Last September we noted the kick-off of the Stanford Center on Longevity's world-wide Design Challenge that encouraged teams to tackle the need for "solutions that help keep people with cognitive impairments independent as long as possible." In March, PBS News Hour had a nice piece on the partnership that launched the competition.
The latest news is that 7 teams are finalists from among 52 entries from 15 countries. The final phase of the competition will take place on April 10. As explained by Stanford's news release:
"They are coming to Stanford to make their final pitches for a $10,000 first prize and connections to industry leaders and investors. There will be talks by a number of distinguished speakers, a panel of Silicon Valley investors, and the announcement of next years’ challenge. Join us for what should be a great day of learning and networking."
Saturday, April 5, 2014
Ralph Schwanbeck feared that his 87-year-old wife, Dorothy, might balk at donning headphones for the first time in her life, but her broad smile proved that the iPod was playing her songs.
Dorothy, who has Parkinson's disease, gently tapped her toes a few times while listening to some of her favorite tunes recently at Hillview Health Care Center in La Crosse. Hillview is one of 100 nursing homes statewide certified to participate in a Wisconsin Department of Health Services program to help residents with Alzheimer's disease and related dementias. Titled the Wisconsin Music and Memory Initiative, the program employs iPods with personalized playlists to rekindle residents' memories with familiar music, as well as lift their spirits and improve their interaction with family members, other residents and staffers. The program provides each nursing home with 15 iPods, but Hillview sees such promise that it also bought one and invites people to donate new or used iPods. Even though Hillview began the program just recently, results for Dorothy already were beginning to show.
Wednesday, April 2, 2014
Via the Alzheimer's Association:
We have known that women are the epicenter of Alzheimer's disease - making up the majority of both people living with the disease and caregivers. Not only are 3.2 million women living with Alzheimer's, women are also at the epicenter of caregiving for someone with the disease. The Alzheimer's Association's new 2014 Alzheimer's Disease Facts and Figures report shows women have a 1 in 6 chance of developing Alzheimer's, while men have a 1 in 11 chance. As real a concern as breast cancer is to women's health, women in their 60s are about twice as likely to develop Alzheimer's over the rest of their lives as they are to develop breast cancer.
A new Alzheimer's Association women's initiative has launched in conjunction with the Facts and Figures report. Realizing the impact Alzheimer's has on women - and the impact women can have when they work together - we ask women to share why their brain matters and how they can use it to end Alzheimer's at alz.org/mybrain.
Sunday, March 30, 2014
Last fall, our Elder Law Prof Blog reported on the available of a MOOC (Massive Open On-Line Course) offered by John Hopkins School of Nursing on "Care of Elders with Alzheimer's Disease and other Major Neurogonitive Disorders." Did any of our readers participate? We welcome reports on your reactions to the experience.
Now there's a another MOOC opportunity, this time from the University of Tazmania on "Understanding Dementia." The 9-week course is described as "building on the latest in international research on dementia." And, true to the spirit of MOOCs, it is free and open to anyone to register, here. The course begins Monday, March 31 -- so hurry to register.
Friday, March 28, 2014
This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.
This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life." Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc. This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage.
I ask the students to brainstorm Grandmother's options. Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period.
Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission. Good job! Except that I am usually careful in my hypo not to make Grandchild overtly manipulative. And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.
This week, students also suggested "failure of consideration" as grounds for rescission. There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:
- Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
- Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member.
After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families. In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old. The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law.
Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?
Thursday, March 27, 2014
Occasionally on this Blog we post to studies suggesting cutting edge scientific developments connected to Alzheimer's. For example, last October, our colleague Professor Dayton, provided a link to a study in England described as a possible "breakthrough" in Alzheimer's research related to misfolded proteins in the brain. John O'Connor, the executive director for McKnight's Long-Term Care News, recently offered his own reaction to such news, following release of a different study:
"Here we go again: This week saw the release of yet another breathless study claiming the cure for Alzheimer's disease is getting closer — maybe.
The latest incantation is a report in Nature Genetics. This entry touts an international study of the disease that may help us unlock a cure. Unless, of course, it doesn't.
It seems like we get treated to at least one or two of these “important breakthrough” studies every month, sometimes more. And the plot seldom varies: Earnest investigators working countless hours have issued a report that may bring us closer to a cure. Then, tucked somewhere in the back is a mention that, ahem, more research is needed."
As with Mr. O'Connor, I suspect many of us have experienced "breakthrough fatigue" in the area of Alzheimer's research. Nonetheless, I am going to point to another study, this time suggesting a blood test targeting biomarkers that "may be sensitive to early neurodegeneration of preclinical Alzheimer's disease," and thus predictive of "either amnestic mild cognitive impairment or Alzheimer's disease within a 2-3 year time frame." The report on "Plasma Phospholipids Identify Antecedent Memory Impairment in Older Adults" is in the March 2014 issue of the journal Nature Medicine and despite the somewhat intimidating title, it makes for interesting reading.
But my real question is not about the value of the study, or as John O'Connor's essay suggests, concerns about the potential for hype to generate false hope, but whether many would actually be horrified by a predictor of future cognitive impairment within 2 to 3 years, even (especially?) one with "over 90% accuracy." I can think of several people I've known who worried about their "failing memory," sometimes for years, but who expressly rejected seeing a specialist for testing. Without a solution, such tests might be the ultimate example of the unfunny joke: Do you want to hear the good news or the bad news first? We know what's going to happen to you -- but you aren't going to like it.
Tuesday, March 25, 2014
William and Mary Law School student Elizabeth Hill takes on the challenge of discussing sex and seniors in her Student Note, "We'll Always Have Shady Pines: Surrogate Decision-Making Tools for Preserving Sexual Autonomy in Elderly Nursing Home Residents" for the Winter 2014 issue of the William and Mary Journal of Women and the Law. She concludes:
"With changes to state law to expand the tool of power of attorney, residents who want to retain autonomy in decisions about their bodies and relationships could employ surrogate decision-making tools like durable powers of attorney and advance healthcare directives to ensure that they are able to participate in and enjoy sexual activity even after the have lost the capacity to consent and even if their families disapprove of the activity. Perhaps the most difficult aspect of adopting such a mechanism would be putting aside our personal and preconceived notions about sexual conduct in order to allow others to experience a little happiness in an otherwise gloomy setting."
The title for the article, alluding to Humphrey Bogart's famous line in Casablanca, is a clever introduction to a sensitive topic.
Monday, March 24, 2014
- Advocacy Centre for the Elderly and Dykeman Dewhirst O’Brien LLP: Health Care Consent and Advance Care Planning: Standards and Supports
- ARCH Disability Law Centre: Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who Are Subject to Guardianship
- Canadian Centre for Elder Law: Understanding the Lived Experience of Supported Decision-making in Canada - A Study Paper
- Dr. Bonnie Lashewicz: Understanding and Addressing Voices of Adults with Disabilities Within Their Family Caregiving Contexts: Implications for Legal Capacity, Decision-making and Guardianship
Saturday, March 22, 2014
Wednesday, March 19, 2014
Every 67 seconds someone in the United States develops Alzheimer's disease. More than 5 million Americans are living with the disease. Learn the facts. Help wipe out Alzheimer's disease.
I spent most of our recent spring break in Arizona with my parents and sister (and trying to thaw my frozen bones). I had time to visit friends, some I haven't seen in decades, and often I was tempted to give a rueful chuckle. We're all in the same age range -- and several of us are searching for ways to help aging parents. With friends who have a parent with dementia, as soon as they find out that much of my work now focuses on "elder law," I would get what I've come to think of as "the question."
What's the question? "Is it inevitable that I too will develop dementia?" Of course, I'm a law professor, not a doctor. My friends are asking the wrong person.
But, then I noticed that several of my friends were reading the same book. The book is "100 Simple Things You Can Do to Prevent Alzheimer's and Age-Related Memory Loss," by Jean Carper, a well-respected medical journalist. One friend loaned me a copy. It was first published in 2010. I asked friends what they liked about the book, and more than one mentioned the "single idea" format for chapters, short enough to keep the reader on task, while sufficiently detailed to convince the reader why that "tip" just might make sense.
Some of the 100 "things" are, I hope, mostly an affirmation of common sense, such as Chapter 17's "Count Calories" and Chapter 20's "Control Bad Cholesterol." Occasionally a chapter strikes me as a bit trendy, such as the admonition in Chapter 22 to "Go Crazy For Cinnamon." But quite a few topics and explanations were either surprising, intriguing, or both, including Chapter 3's recommendation to "Check Out Your Ankle." The author explains how low blood flow in your foot, measurable by an ankle-brachial index (ABI) test, can point to looming troubles for the brain.
Happy reading and good luck adapting the tips to your life. Remember, with 100 recommendations to read, evaluate, and, as appropriate, embrace, it doesn't hurt to start "young."
Monday, March 17, 2014
The Centre for Ageing Research and Development in Ireland (CARDI) is a great resource for comparative research, capturing a wide range of articles and projects in Europe, as well as the latest research grants in the north and south of Ireland.
In one of the recent reports linked by CARDI, "A National Survey of Memory Clinics in the Republic of Ireland," researchers are critical of the lack of clear standards for diagnosis, treatment and collection of data on dementia, and point to potential weaknesses observed in a national system of Memory Clinics (MCs) in the Republic of Ireland (ROI), noting the potential for such problems to exist on a broader basis:
"Although this is an Irish-based study, our findings raise several important questions pertinent to many countries around the world currently developing and expanding diagnostic and postdiagnostic services to address the challenge of dementia. First, what type of specialist services do MCs offer and what are their core aims and objectives? Are MCs concerned with offering a more correct diagnosis than what might otherwise be available through generalist services? Are they committed to providing earlier diagnoses and interventions in more unusual cases (including memory problems that are reversible) and if this is the case, is a waiting time of up to four months acceptable? In the ROI, GPs [general practitioners] are permitted to initiate cholinesterase inhibitors for patients diagnosed with dementia, but would it be preferable if the prescription of such drugs was confined to MCs or other specialists involved in dementia diagnosis? What role do MCs play with respect to the education and training of primary care and other allied health professionals? Should this role be confined to only the larger longer established clinics that become Centers of Excellence and review only few and very rare cases?"
Do we have any systemic approach to diagnosis, treatment and data collection on dementia in the United States?
Friday, March 14, 2014
The Third World Congress on Adult Guardianship will be in Washington DC May 28-30. Registration is now underway. Anyone interested in national and international developments in the realm of guardianship should attend this conference, which features speakers from 21 countries/six continents.
Information about the Congress, and registration materials, are available via the main website. My advice: this is one event you don't want to miss!
March is Developmental Disabilities Awareness Month and to mark the occasion, The Arc is inviting everyone with intellectual and developmental disabilities to make plans to go out somewhere in public on Saturday, March 29 to break down social barriers, dispel myths and raise awareness.
Please share this message and encourage those you know with I/DD, their colleagues, friends and families to make plans to hit the movies, the park, a local shopping center or restaurant for a day out and maybe spark some conversation in the process.T
Check the landing page on thearc.org with more information and launch an email and social media campaign to encourage folks to join in. Plus, we have a couple of guest bloggers lined up for March to share their personal experiences on the topic of social barriers on The Arc’s blog (blog.thearc.org). Spread the word using the hashtag #DDAware on social media during the month of March. And, follow us on Facebook or Twitter where we will be sharing photos and stories from everyone’s March 29 activities.
Wednesday, March 5, 2014
The American Geriatrics Society and the American Board of Internal Medicine Foundation have joined in a venture called "Choosing Wisely," and recently issued "Five Things Physicians and Patients Should Question."
The items are intended to stimulate more thoughtful decision making, especially in dementia care, and address diet, restraints, and use of screening tests. Two items that hit home include:
- Don't prescribe cholinesterase inhibitors for dementia without periodic assessment for perceived cognitive benefits and adverse gastrointestinal effects.
- Don't prescribe any medication without conducting a drug regimen review.
This "Five Things" list was actually the second set of "Choosing Wisely" recommendations. Here's a link to the important first list, which includes the concern about off-label prescriptions of antipsychotic medications to treat symptoms in dementia, a topic that has also been the subject of major whistleblower cases and settlements involving the pharmaceutical industry.