Case Western Reserve Hosts Law-Med Conference on Diminished Capacity and the Law

Law and Bioethics Professor Sharona Hoffman, Co-Director of the Law-Medicine Center at Case Western Reserve University organized a terrific symposium on Cognitive Decline and the Law, held on March 1, 2024.  Thank you, Sharona, for inviting me to participate!   

In my talk, I  suggested that the time has come for clearer thinking on a long-standing legal standard, known in many jurisdictions as the "Lucid Moment" or the "Lucid Interval Doctrine," that has permitted attorneys' testimony on clients' orientation in time, place and person to suffice as evidence of sufficient capacity in legal transactions, even in the face of expert medical testimony about Alzheimer's Disease or other advanced dementias. Research demonstrates that Canadian academics have been  questioning reliance on "lucid intervals in dementia" as early as 2015.  My additional thanks to Penn State Dickinson Law student and research assistant extraordinaire, Noah Yeagley, for joining us at the conference and who was especially enjoying this conference opportunity to revisit his pre-law school graduate work in neuroscience.

The day began with a keynote presentation by Dr. Carol Barnes, University of Arizona, addressing "Brain Mechanisms Responsible for Cognitive Decline in Aging."  One key takeaway for me from her presentation was that while physical exercise is important for overall health, "learning new things" is probably even more important in maintaining cognitive function over time.  

The first set of panelists dug deeply into the roles of people supporting others in decision-making, whether with the aid of formal "supported decision-making agreements" and use of powers of attorney or different forms of substituted judgment.  Rebekah Diller, Clinical Professor at Cardozo Law, Megan Wright, Professor of Law and Medicine at Penn State Law, and James Toomey, Assistant Professor of Law at Pace University were the presenters on cutting-edge issues.

In the second panel, Neurology Professor Mark Fisher from the University of California Irvine was very timely in his focus on the potential for cognitive decline in both voters and candidates in politics, discussing a wide range of possible examples across history in the U.S. and Israel.  Associate Professor Jalayne Arias from Georgia State University School of Public Health demonstrated significant concerns in the overlap between criminality and dementia, whether from the standpoint of arrest, conviction, incarceration, or release of persons with cognitive declines.

Sharona Hoffman did double duty during the packed day, presenting issues of cognitive declines both in the workplace and on our roads.   She used humor to soften some of the tough news on the lack accountability for risk in either domain.  It was clear from the audience response -- in both the sold-out auditorium and on-line -- that everyone has a story about dementia and drivers, often from our own families.

My long-time friend working specifically in the "elder law" space, Nina Kohn, Professor of Law at Syracuse and now also a Distinguished Scholar in Elder Law at Yale Law School, gave the latest on proposed -- and much needed -- reforms in court-appointed guardianships, highlighting key concerns addressed in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act,  adopted as of today in two states, Maine and Washington, and introduced or pending in at least four more states.

The speakers in the important last panel of the day were clearly looking to the future on research and developments in the diagnosis, care and community response needed for "healthier" approaches to problem-solving.  Dr. Jonathan Haines, a genetic epidemiologist at Case Western Reserve University, surveyed the advances and challenges in attempting to build a deep bank of genetic information on Alzheimer's Disease. Law Professor Emily Murphy at UC Law San Francisco outlined the emerging theory of "collective cognitive capacity" as an approach to the challenges posed by social, environmental, and economic factors that may be impacted by brain health and cognitive decline.  Tara Sklar, the Director of the Health Law and Policy Program for the University of Arizona College of Law spoke on the potentials and challenges for telemedicine in treating patients with cognitive declines. Professor Sklar is also the new chair of the AALS Section on Aging and the Law.  

A packed day, for sure, with support from Virginia Lefever, Editor for CWLR's journal of law and medicine, Health Matrix, who was receiving formal drafts of papers 
from presenters for a future issue.

And for those of us who were determined to follow Dr. Barnes' encouragement to "keep learning," the evening did not end early, as we continued with a tour of the University's wonderful public art spaces and then on to the world-renowned art collections at the Cleveland Museum of Art -- including a "First Friday" party that had lots of people dressed up and dancing!  "Hands"-Down, it was a great conference!