Wills, Trusts & Estates Prof Blog

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

Tuesday, July 16, 2019

Doing These Five Things Could Decrease your Risk of Alzheimer’s by 60%

LeafyApproximately 50 million people have dementia worldwide, and that number is expected to triple by 2050, according to the 2018 World Alzheimer Report. The global cost of dementia in 2018 was roughly $1 trillion, a figure projected to double by 2030. But a study presented at the Alzheimer’s Association International Conference in Los Angeles this past weekend has some crucial suggestions to limit a person's likelihood on developing the condition by 60%.

The  Rush University Medical Center in Chicago followed 2,765 individuals over the span of about a decade, tracking their lifestyle and behavior choices. They assessed study participants’ lifestyles on five metrics: their diet, their exercise regimen, whether they smoked, their alcohol consumption and their “engagement in cognitive stimulation activities.” The researchers were expecting positive results for those that made healthier choices, but they were simply "astounded" by the magnitude of the results.  Individuals who ate a “high-quality diet," performed at least 150 minutes of exercise per week, did not smoke, limited themselves to one alcoholic beverage per day, and stimulated their brain two to three times a week were found to develop dementia 60% less than those that did none of these activities, or even just one of them.

The average ages of the participants were between 73 and 81, and contained both males and females as well as blacks and non-Hispanic whites. The study did not find any variances depending on race or gender. 

See Hannah Nattanson, Doing These Five Things Could Decrease your Risk of Alzheimer’s by 60%, New Study Says, Washington Post, July 14, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

July 16, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 15, 2019

Note on Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model

AlzLauren Padama recently published a Note entitled, Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model, 28 S. Cal. Interdisc. L.J, 173-201 (2018). Provided below is an introduction of the Note.

After receiving a diagnosis of Alzheimer's, journalist Greg O'Brien analogized his experience with the disease to a plug in a loose socket. The light from the lamp starts to flicker, so he pushes the plug back in to the socket. It flickers more; Greg now becomes frustrated as he continues to push the plug back in. Eventually, the plug falls out of the socket entirely, and the light is extinguished permanently. This metaphor tracks the progression of Alzheimer's as a typical patient loses his memory and other core cognitive functions. It does not, however, consider that the cognitive decline is typically accompanied by a revocation of medical autonomy.

Most adults are familiar with the myriad forms they are required to sign before receiving medical treatment. These consent forms are designed to reiterate a physician's warning of the risks and benefits of the procedures to ensure that the patient is fully informed before agreeing to the procedure. This basic idea was famously articulated by then Judge Cardozo when he noted, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body … ." Since then, every jurisdiction has developed a doctrine of informed consent, which requires the doctor to make a "reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." The physician's efforts to apprise the patient of the risks and benefits of the treatment or procedure would, however, be futile if the patient were unable to evaluate the risks and benefits of the procedure and come to an informed decision on whether to accept or reject treatment. Thus, informed consent also requires that the patient have the capacity to consent  to treatment. For patients with Alzheimer's or dementia, the cognitive decline associated with the disease eventually precludes the patient from meeting the medically determined competency standards. This means that the patient can no longer give consent to receive or refuse treatment. The patient is therefore forced to rely on the judgment of the physician or another statutorily approved decision-maker for all medical decisions after loss of capacity.

Informed consent was created to preserve patient autonomy, but dementia effectively revokes a patient's right to consent or decline treatment. A dementia diagnosis is followed by a determination of incompetency at a time when critical treatment decisions are made, such as the decision to administer psychotropic medications. Most decision-makers follow a physician's treatment recommendation, which means psychotropic medications are frequently prescribed to manage symptoms of dementia. When patients refuse, caregivers in both professional and private settings covertly administer medication without the patient's knowledge or consent. 

This article explains the challenges facing both the medical and legal community as the aging population in the United States leads to an inevitable increase in the number of dementia patients. In particular, the variety of accepted instruments used to assess competency has created variability in who is considered incompetent, which forces the patient to rely on statutorily approved methods of decision-making, such as conservators, family members, and advance directives. Since requirements for each vary by jurisdiction, this paper primarily focuses on California law. After discussing the deficiencies with each form of decision-making in the context of concealment of psychotropic medication, this paper explores a new approach to decision-making that focuses on the patient as opposed to the physician's recommendations. The proposed model combines elements of enhanced consent and supported decision-making to create a new method of decision-making. This method of decision-making gives a patient in the early and moderate stages of Alzheimer's more control over her healthcare decisions by forcing decision-makers to communicate directly with the patient instead of assuming the patient's preference. This aims to preserve autonomy in early stages of Alzheimer's by shifting the focus from substituted decision-making to decision-makers actually assisting the patient in deciding whether to accept or reject psychotropic medication and then articulate that choice effectively to the physician.

This paper begins with an overview of dementia and one of the most commonly prescribed treatments for Alzheimer's patients: psychotropic medications. I then discuss informed consent, the right to refuse medication, and assessing capacity both generally and in Alzheimer's patients. After explaining the problems with current competency assessments, I then review the most common methods of decision-making after loss of capacity for Alzheimer's patients as well as alternative methods of decision-making used in other populations. I demonstrate the deficiencies in the statutorily approved methods of decision-making by applying each method to a common real-world problem of medication concealment. Lastly, I illustrate the benefits of utilizing my proposed model, a hybrid of enhanced consent and supported decision-making. This model aims to preserve patient autonomy in the early stages of Alzheimer's while also providing a tool to plan for the later stages of the disease.

July 15, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 8, 2019

Alzheimer’s Research is Getting a Reboot at Small Companies Focused on the Immune System

AlzA Colorado health care start-up called Partner Therapeutics is researching an almost 30-year-old leukemia medication and how it can regulate the immune system as a treatment for Alzheimer’s disease. This change in research trajectory is seen as a result of billions of dollars used in vain by major pharmaceutical companies seeking treatments for the removal of amyloid plaques, an accumulation of debris on brain tissue that is a key sign of Alzheimer’s.

So as bigger companies are backing away from the area, small businesses and start-ups are filling the gap. As of last year, there are only around 70 potential Alzheimer’s therapies in various stages of clinical trials, in addition to 22 remaining amyloid-targeting drugs, according to industry trade group Pharmaceutical Research and Manufacturers of America. In comparison, there are roughly 1,100 drugs for cancer, 445 for other neurological diseases, and 200 for heart disease and stroke in development.

Researchers at the Rocky Mountain Alzheimer’s Disease Center are leading a trial of Leukine in 40 Alzheimer’s patients. In mice with Alzheimer’s disease, the same protein contained in Leukine cleared amyloid debris from the brain while also reversing memory loss. But other drugs by bigger companies that showed promise in mice also failed, so there odds may still be long.

See Christopher Rowland, Alzheimer’s Research is Getting a Reboot at Small Companies Focused on the Immune System, Washington Post, July 3, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

July 8, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, June 26, 2019

Can an Eye Exam Reveal Alzheimer’s Risk?

EyeA visit to the eye doctor could reveal clues to not only your vision health, but may also someday assist in analyzing the health of your brain. A recent study performed by the Harvard T.H. Chan School of Public Health shows links between many forms of eye conditions, such as glaucoma and diabetic retinopathy, to an increased risk of Alzheimer's and other forms of dementia. One eye condition that does not appear to be linked to Alzheimer's is cataracts, though it is also age-related.

“My view, and one of the possible explanations that the authors present, is that these three eye diseases and Alzheimer’s and dementia have a joined etiology (a common causative factor). All are linked to cardiovascular disease,” says Dr. Albert Hofman, chair of epidemiology. The study began in 1994 and involved 5,400 dementia-free adults, following them until they left the study, died, or developed a form of dementia. The study found that people with age-related macular degeneration were 20% more likely to develop dementia compared with people who did not have the eye condition. People with diabetic retinopathy were 44% more likely to develop dementia than those without, and those with a recent glaucoma diagnosis (not an established diagnosis) had a 44% higher rate of dementia.

Though eye exams today may not be able to tell a patient if they have Alzheimer's or dementia, the knowledge that this study brings could enable doctors to focus on preventive measures. “Doing all the things that you would do to prevent heart attack and stroke are likely beneficial to prevent Alzheimer’s disease,” says Dr. Hofman. This means treating high blood pressure and cholesterol, eating a healthy diet, getting enough sleep, and maintaining a regular exercise program.

See Kelly Bilodeau, Can an Eye Exam Reveal Alzheimer’s Risk?, Harvard.edu, June 7, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

June 26, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (2)

Tuesday, June 25, 2019

The Future Looks Terrible for U.S. Nursing Home Costs

Nursinghome2Georgetown University Medical Center conducted a six year survey that revealed that the prices of nursing homes have been increasing quickly allover the country. The trend shows no signs of slowing down.

From 2005 to 2011, the period of time reviewed by the survey, California, Florida, New York and Texas all saw increases that surpassed the inflation rate. The study found nursing home price rises over the period measured generally outpaced increases in overall medical care (20.2%) and general consumer prices (11.7%). Because of the costs of long-term care and the laws governing it, many nursing home residents must spend down the bulk of their life savings before qualifying for federal assistance.

It could be an issue of supply and demand, with more people needing long-term care than facilities that provide those services. More elderly Americans mean more demand for nursing home care, and more demand for nursing home employees. Wages go up, and the cost is passed along to consumers who, under the current system by which America looks after its elderly, coverage is limited. Dr. Sean Huang, the study’s lead author, explained that the growing population of those in nursing homes are those that are they for long stays, including those with Parkinson's and dementia. “Medicare does not cover that. They will pay out-of-pocket until they use all of their wealth.” 

And it does not look like the trend will be changing any time soon, especially with Wall Street seeing money signs. Four out of the 10 largest for-profit nursing home chains were purchased by private equity firms from 2003-2008, and studies on the effect of these purchases show mixed results for consumer effects.

See Luke McGrath, The Future Looks Terrible for U.S. Nursing Home Costs, Financial Advisor, June 25, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 25, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, June 22, 2019

Casey Kasem’s Daughter Wants to Bring Star’s Body Back from Norway, Stepmother Denies Elder Abuse Allegations

CaseyCasey Kasem, the esteemed disk jockey, passed away in 2014 at the age of 82, but the drama swirling amongst his family has yet to settle down. His daughter, Kerri, wants to have his body returned to the United States even though he was buried in Norway 6 months after his death. She also alleges that her stepmother, Jean, abused her father while he was suffering from dementia and hindered Kerri and other friends and relatives from visiting him.

In 2013, Kerri and a dozen other individuals held signs outside of Casey's Los Angeles mansion, demanding Jean to allow them access to him as he suffered from failing health. Kerri said that her and her siblings had not been able to see their father in more than three months. Jean denied the claim, instead stating that she was simply giving her husband the privacy that he craved. There were many other allegations tossed back and forth between Kerri and Jean, resulting in Jean being stripped of control over Casey's healthcare decisions in 2014 after a Washington judge decided she had not acted in his best interests and awarded Kerri and conservatorship. 

Kerri claimed she is eager to confront her stepmother in court again and that once and for all, she will set the record straight.

See Stephanie Nolasco, Casey Kasem’s Daughter Wants to Bring Star’s Body Back from Norway, Stepmother Denies Elder Abuse Allegations, Fox News, June 18, 2019.

June 22, 2019 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Music, New Cases, Television | Permalink | Comments (0)

Monday, June 17, 2019

The Elderly are Getting Complex Surgeries. Often it Doesn’t End Well.

HospitalAs the country's population ages and medical advances increase, more and more citizens 65 and older are deciding to undergo surgical procedures that were once deemed too dangers for their age group. But just because these operations are allowed does not mean that the outcome is always ideal; one study reviewing major, nonemergency surgery in 165,600 adults over 65 found that mortality and complications increased with age and hospital stays often lengthened for these patients.

The reasons for the health risks should come as no surprise: aside from whatever ailment the surgery is meant to resolve, older patients usually have other chronic health issues that require medications and medical care. Dr. Ko and Dr. Ronnie Rosenthal of the Yale University School of Medicine, lead the American College of Surgeon's Coalition for Quality in Geriatric Surgery. They have developed a new geriatric surgery verification program, to be unveiled next month at a conference in Washington, D.C., after four years of planning and research, which will consist of 30 standards that hospitals should meet to improve results for older patients.

The college has also devised similar quality programs for trauma, cancer and pediatric surgery. “People understand that children are different from adults,” Dr. Rosenthal said. “It’s taken a surprisingly long time to come around to the realization that older adults are also different.” Some of the standards deal with medications regimes that do not rely heavily on opioids, geriatric friendly rooms, and other infrastructure need, while other requirements for the designation deal with communication with the patients. The goals of an 80-year-old patient may be very different than that of a 50-year old, with fears of nursing homes and a lower quality of life for several years hanging over their heads. 

See Paula Span, The Elderly are Getting Complex Surgeries. Often it Doesn’t End Well, New York Times, June 7, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

June 17, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, June 16, 2019

The Best Father’s Day Gift, a Father Can Give

FathersdayOn the day that is meant to celebrate fathers and the role they play in their children's lives, they usually receive the typical gifts: a stand-out tie, a shiny new grill, maybe a nice set of tools. But what about the ultimate gift that fathers can give to their children and other loved ones?

While a ballgame sounds great on the penultimate holiday for fatherhood, any real dad will tell you that the true reward is having a sense of accomplishment, in knowing you left everything on the field when providing for your family. An effective estate plan with all the appropriate and necessary documents will pass on your legacy and keeping your loved ones safe and protected even after you have passed on.

A health care proxy allows you to designate a person to make the difficult decisions if you become seriously ill or incapacitated. A living will details the end-of-life instructions to be carried out by a medical facility as it pertains to life sustaining care. Having a durable power of attorney can be established for other decisions in a time of need, such as financial decisions that are need when you cannot. Of course, no estate plan is complete with a disposition of property, so either a living trust or a will is necessary to transfer your assets as you desire.

See The Best Father’s Day Gift, a Father Can Give, OC Estate Lawyers, June 13, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

 

June 16, 2019 in Current Affairs, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Games, Trusts, Wills | Permalink | Comments (0)

Friday, June 14, 2019

Note on Reading the Tea leaves: Sifting Through Jicarilla and Garner to Construct a Workable Fiduciary Exception Framework for ERISA Insurers

InsuranceTed A. Hages published a Note entitled, Reading the Tea leaves: Sifting Through Jicarilla and Garner to Construct a Workable Fiduciary Exception Framework for ERISA Insurers, 80 U. Pitt. L. Rev. 409-455 (2018). Provided below is the introduction to the Note.

Mark secures a new manager-level job with a $200,000 base salary and a guaranteed bonus of $300,000 for his first full year of employment. His employer also offers a competitive benefits package, which includes a long-term disability plan. Unfortunately, after only three months on the job, Mark gets into a terrible bicycling crash, rendering him permanently disabled.

Mark informs human resources that he will be applying for disability benefits under the disability plan, but he is told that the administration of the plan has been outsourced to an insurance company. He applies for disability benefits with the insurer responsible for evaluating his eligibility for benefits under the plan and paying them if appropriate. The insurer approves Mark's claim, but deems him eligible for a monthly benefit payment based on only his $ 200,000 base salary. Feeling cheated, Mark files an appeal arguing that his benefits should be based on his total compensation of $ 500,000. The insurer denies his appeal, stating that he did not work a full year prior to the accident and any bonus paid to him would be mere goodwill by his employer.

Mark decides to sue the insurance company. During discovery, he requests to see a memo written by the insurance company's lawyer for the claims analyst that oversaw Mark's claim. The insurer, however, contends that this memo is protected by the attorney-client privilege.

What happens next, strangely enough, depends on where the suit takes place. If Mark's claim is litigated in a federal court in Pennsylvania, New Jersey, or Delaware, then Mark is out of luck. His request to compel production of the memo will be automatically rejected. But, if he happens to be on the West Coast, he will automatically prevail through a common law fiduciary exception to the attorney-client privilege. If he is somewhere in between, the result is uncertain.

This inconsistency and uncertainty in the law denotes a current circuit split in the federal courts of appeal. The Third and Ninth Circuits disagree as to whether a beneficiary of an employee benefit plan can defeat an insurer's assertion of the attorney-client privilege, where the insurer is tasked with evaluating and paying benefit claims as a third-party claims administrator. In the Ninth Circuit, beneficiaries automatically defeat the privilege pursuant to Ninth Circuit caselaw on the fiduciary exception to the attorney-client privilege, and in the Third Circuit, just the opposite. Where the fiduciary exception applies, it precludes fiduciaries who obtain legal advice in the execution of their fiduciary obligations from asserting the attorney-client privilege against their beneficiaries. No circuit beyond the Third and Ninth has yet examined this issue, leaving much uncertainty for benefit plan participants and insurer-fiduciaries across the country.

Many perspectives have been written on whether the Ninth or Third Circuit "got it right," in holding the fiduciary exception per se applicable to insurers and per se not, respectively. This Note, however, focuses not on which court came to the right result, but rather, it scrutinizes the underlying legal framework that allowed the courts to divide. After reviewing the basic doctrinal test--a two-rationale framework which determines the fiduciary exception's applicability--and how it has been applied both historically and in the circuit split, this Note "reads the tea leaves" that is an uncertain fiduciary exception jurisprudence in an effort to establish uniformity. This is accomplished by a two-part solution. First, this Note extracts the key principles from the Supreme Court's only fiduciary exception case to define the proper doctrinal elements for each part of the two-rationale framework. But even if the courts are in accord as to the exact legal test by which the fiduciary exception should be applied, uncertainty still remains given the pliability of that framework. To resolve this shortcoming, a new prong to the fiduciary exception test for ERISA insurers is proposed: a good cause prong, borrowed from the shareholder derivative suit context, but modified so that the insurer bears the burden of showing cause for nondisclosure.

Part I of this Note provides background on the fiduciary exception. Part I-A traces the doctrine's trust law origins, whereby the two-rationale framework was established as the legal test for the exception. Part I-B discusses how that test has been extended, focusing on its use in shareholder derivative suits through the Garner doctrine. Part II explores the fiduciary exception in ERISA cases, with Part II-A covering trustee-like ERISA cases. Part II-B dives into an ERISA context where the doctrine has not been so easily applied: the insurer-fiduciary context of the circuit split. Part II-C discusses the uncertainty surrounding the split and its causes. Finally, Part III offers a two-part solution to rework the doctrine. In Part III-A, the Supreme Court's Jicarilla decision is probed to establish the proper elemental tests for the two-rationale framework. Part III-B then proposes a new doctrinal prong for the fiduciary exception framework in the ERISA insurer context: a good cause prong deriving from Garner, but with a modified burden standard.

June 14, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (1)

Tuesday, June 11, 2019

Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide

PetermaxA friend of Mary Max, 52, the wife of artist Peter Max, found her body Sunday inside the couple's 15th floor apartment on Manhattan's Upper West Side on Riverside Drive near West 84th Street. The cause of death is an apparent suicide of nitrogen asphyxiation. Mary and her stepson, Adam, had been steeped in legal turmoil revolving around the failing health of 81-year-old Peter and his artwork.

Peter has an advanced state of dementia, and his mental state has steadily declined in recent years. Adam had sued Mary in 2015 claiming that she was trying to kill his father to gain control over his multi-million dollar art collection. Mary asked then asked the court to appoint a guardian to oversee her husband's business after Adam and three business associates took over the artist's studio, increasing production and profit through a series of art auctions on cruise ships. After the appointment of the guardian, Adam removed his father from his home and moved him around New York for more than a month, to which Mary accused him of "kidnapping" Peter and withholding his whereabouts from her.

A judge ordered Peter to be returned to Mary's care at their Manhattan apartment and that a guardian oversee both his business and personal affairs. Peter's daughter who lives in Los Angeles, Libra, took over her father's studio in January and filed a lawsuit to stop her brother from being able to interact with the company.

See Bridie Pearson-Jones and Ariel Zilber, Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide, Daily Mail, June 11, 2019.

June 11, 2019 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)