Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, August 6, 2019

Comment on Losing Your Mind, Losing Your Rights?: A Certification Process to Safeguard Alzheimer's Patients and the Moving Target of the Lucid Interval

AlzKaitlyn C. Meeks recently published a Comment entitled, Losing Your Mind, Losing Your Rights?: A Certification Process to Safeguard Alzheimer's Patients and the Moving Target of the Lucid Interval, 44 U. Dayton L. Rev. 79-109 (2018). Provided below is an introduction to the Comment.

Picture this: you have awakened, on a seemingly normal day, to a drastic lifestyle change -- the care of your mother or father. You, the child, have now become the parent. Why has this happened? One, or perhaps both, of your parents was recently diagnosed with Alzheimer's disease ("AD"), rendering him or her incapable, in the eyes of the law, of maintaining complete and autonomous control over their life. The child is now the sole caretaker for the parent's health, safety, finances, well-being, and legacy. As the new primary caretaker for an ailing parent, your life has become overwhelmed with legalities -- Power of Attorney Forms, Health Care Directives, and Living Wills and Trusts. These stresses are in addition to the emotional effects as well as the financial and physical demands a caregiver is confronted with on a day-to-day basis.

Will you ever be able to see the parent you once knew again, or will the remainder of your parent's life be surrounded in a cloud of the unknown? And then, with no warning, it is as if nothing but time has changed, and there is a return to your loved one's true self. Yet, with the blink of an eye, the disease takes hold once again, and the moment of lucidity has vanished.

"Your brain is your most powerful organ[.]" However, it is exactly the powerhouse organ which is attacked when a person has a degenerative disease like dementia. Dementia is the collective name for a series of brain disorders which affect cognitive capabilities, generally worsening as time progresses. Alzheimer's disease ("AD") is the most common and prevalent form of dementia. Since AD was first discovered in 1901, our ability to treat and cure the disease has yet to encounter any significant medical breakthroughs.

"Every four seconds, someone is diagnosed with Alzheimer's Disease." Within the United States, someone develops the disease every sixty-six seconds. According to the 2017 annual report by the Alzheimer's Association, one in ten people over the age of sixty-five are currently living with the disease, and the data projects that the amount of people who will be affected by AD will double within the next thirty years as the baby boomer generation settles into the elderly population. The elderly and "oldest-old" populations are expected to account for nearly 80 million Americans by 2050.

AD primarily affects the elderly; however, the elderly, in general, are an age group which seems to traditionally be excluded from many research benefits, including financial resources. Perhaps this illuminates the reason why one of the most aggressive diseases in today's society has failed to be cured, halted, or even alleviated. While the fight against AD is not stagnant by any means, an inability to proactively address issues stemming from the disease will have adverse effects on numerous professions.

Examining the growth of the disease's prevalence, there is an inevitable chance of correlation affecting the legal system through capacity challenges pertaining to AD patients, both while alive and after death. While areas of capacity, have been argued, discussed, and critiqued throughout the years, it seems that no clear foundation or consensus on how to address these growing issues has been established. Undeniably, without clear visions, capacity issues with AD patients will only worsen, especially when taking into consideration it is not a "one size fits all" kind of disorder.

In consideration of capacity issues for those suffering from AD, brief, spontaneous moments of lucidity sets apart the legal complications of the disease from many other disorders. Both in the medical and legal sense, a lucid interval is defined as "[a] period of sanity intervening periods of insanity[,]" and is measured by its strength, in that "[i]t must be such a full return of his mind to sanity . . . enabling [a person] to understand and transact his affairs as usual." For a person with AD, especially an advanced state of the disease, a lucid interval may be the only time he or she is able to make decisions for him or herself, or to see that his or her wishes in place are being properly executed. Because of this, the lucid interval is a "moving target." There is simply no way to predict a lucid interval, and there is no way to confirm a lucid interval without awareness in the aftermath.
This Comment will examine the increasing importance of a more standardized approach for an attorney to take when counseling an AD patient. First, to set the scene, an in-depth examination of the disease is needed: what AD is, the history of the disease, the unsuccessful attempts to prevent or cure Alzheimer's, and its current and future impact on society and the economy. Second, this Comment will address the current state of AD within the courts. The focus will be on how AD is currently seen in a legal context and how the lucid interval is treated within the judiciary. In addition, a Puerto Rico statute, which seems to balance the rights of freedom to contract with the protections of the patient's current and future estate interests, creates an unattainable objective approach to balancing the lucid interval and AD.

Third, this Comment will examine the conclusions of prior and recent case law to demonstrate how the topic has been construed in various states, focusing on how the application varies within the judiciary. Lastly, the Comment will propose a certification process for attorneys who regularly assist as counsel to AD patients. The proposed course will certify any participating attorney as a "Certified Alzheimer's Legal Specialist" upon successful completion. A Certified Alzheimer's Legal Specialist would best be defined as an attorney who is substantially familiar with the disease itself, can fully comprehend the legal ramifications of the client's desired acts by taking the time to understand the condition as pertaining to the individual client, and can ultimately serve in the prime position to ensure that an individual possesses the requisite capacity mandated under the law. This standardized approach would serve as clear evidence that his or her client was within a lucid interval -- having adequate capacity -- at the time a document was executed. The attorney is then the party that both understands the legal ramifications and how those ramifications benefit the client. This will help to not only protect the rights of an AD patient's autonomy, but will ultimately help eliminate the inevitable flooding of the courts.

It is paramount to maintain objective standards when examining an AD patient's affairs, as opposed to the subjective standards that are currently employed, both in practice and throughout the judiciary. When particularly observing the influx of the baby boomers into the realm of Elder Law, this Comment's proposed certification process comes at the ideal time. Addressing these considerations, stricter procedures need to be enacted, and ideally, implemented and overseen by a governing legal association. This will ensure that an attorney for an AD client is able to execute a legally enforceable matter at that precise moment as a means to uphold the client's wishes as well as to protect against an almost certain rise in litigation that surrounds the future of this disease.


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…an attorney who is substantially familiar with the disease itself… would likely understand that any such certification would not have a basis in sound medical science, thus would be at best self-serving legal rhetoric - let's develop a certification that asserts to the public and otherwise uninformed that a patient has legal capacity because we say they do.

such posers are directed to the full text © 2015 American Academy of Psychiatry and the Law article, of the following abstract:

The lucid interval is a long-held legal concept widely accepted in case law as a possible means of countering a challenge to testamentary and related capacities. In parallel, the clinical phenomenon of cognitive fluctuations has been considered a common element of several neurodegenerative disorders (dementias), including Alzheimer Disease, but is especially prevalent in vascular dementia and dementia with Lewy bodies. In this article, we review the objective evidence for cognitive fluctuations in dementia and the implications for the validity of the legal notion of the lucid interval cited in recent case law. The literature on cognitive fluctuations in dementia shows that such fluctuations largely affect attention and alertness, rather than memory or the higher level executive functions that are essential components of testamentary capacity. Moreover, these fluctuations are small in magnitude and very short in duration. These findings cast doubt on the validity of the lucid interval and invite a critical rethinking of this legal concept as applied to will challenges involving testators with dementia.


Posted by: Milton Allione | Dec 30, 2019 4:11:15 PM

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