Wednesday, June 21, 2017 Elder Law Rooms: Medical Capacity

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Henry King
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1 Wednesday, June 21, 2017 Elder Law Rooms: Medical Capacity 1:30 p.m. 2:40 p.m. Presented by Robert Bender II, MD 1301 Hickman Road Des Moines, IA Phone:

2 Click to edit Master text styles Second level Third level Fourth level Robert L. Bender II MD Cognitive Capacity in the Geriatric Patient : Decision Making Ability 1301 Hickman Road Des Moines Iowa Testamentary Capacity This is an area that we can discuss that Click will to give edit many Master basic text ideas styles about competence Second level as well as provide discussion for Third a specific level common area of concern. Fourth level 2 1

3 Challenges Currently 3% of wills are challenged and Click 1% to are edit found Master to be text invalid styles These Second frequencies level are expected to increase Third level in the 21 st century A recent Fourth estimate level is that $41 trillion will be transferred Fifth levelby inheritance before Challenges Most common questions brought up in Click a challenge to edit regard Master the text patient s styles cognitive Second capacity level and the potential for Third undue level influence. Fourth level 4 2

4 Physician s Role To define the health of the individual at the Click time to the edit will Master was made text styles To Second determine level if the will was made voluntarily To Third determine levelif their was an emotional connection Fourth level between the testator and an individual named in the will To comment on the testator s level of functioning 5 Elements of Decision Making There are many elements that work in concert Click to for edit normal Master decision text styles making: Will Second level Reason Third level Imagination Fourth level Emotion Fifth level 6 3

5 Our Discussion We will focus on emotion and reason. These Click are to edit the two Master basic text areas styles that we can Second examine level and are felt to drive the will to Third carry level out our intentions. Fourth level 7 Emotion 8 4

6 Pure Reason 9 Together, good decisions can be made 10 5

7 Era of the Brain Because of the explosion of information about Click the to brain edit Master and behavior, text styles doctors can now Second offer our level legal colleagues much better information Third level on the actual physiology behind Fourth the level decision making processes. Doctors Fifth level obviously need education regarding the legal arena and how to help. 11 Evaluation of Cognitive Abilities» Start Click with to edit a complete Master text history styles and physical. Second level» Basic Third lab level work» Consider Fourth level central nervous system visualization. Fifth level» Neuropychologic testing 12 6

8 Hypothetical CSTC Loop for Executive Functions DLPFC Striatum Thalamus DLPFC Click to edit Master text styles Second level Third level Fourth level Hypothetical CSTC Loop for Emotions Subgenual ACC Nucleus Accumbens Thalamus Cortex Click to edit Master text styles Second level Third level Fourth level

Hypothetical CSTC Loop for Attention Dorsal ACC Bottom

styles Second level Third level Fourth level 7-18 14

OFC Bottom of Caudate Thalamus OFC Click to edit

9 Hypothetical CSTC Loop for Attention Dorsal ACC Bottom of Striatum Thalamus ACC Click to edit Master text styles Second level Third level Fourth level Hypothetical CSTC Loop for Impulsivity/Compulsivity OFC Bottom of Caudate Thalamus OFC Click to edit Master text styles Second level Third level Fourth level

10 How Dementia Affects Click to Testamentary edit Master Capacity title style Executive dysfunction/judgment affects ability Click to edit proportion Master estate text styles Deficits Second in level working memory affect appreciation Third level of current relationships or Fourth assets level Impairment Fifth level in autobiographical memory affects significance of long-term relationships 16 How Dementia Affects Click to Testamentary edit Master Capacity title style Apathy and passivity render people vulnerable Click to edit to Master influence text styles Paranoia Second level and suspiciousness lead to changes Third level of heirs based on delusion or erroneous Fourth level beliefs. 17 9

11 Mental Status Exam Components Appearance Presence Click to or edit absence Master text styles of Second abnormal level movements Third level Orientation (person, place Fourth and level time) Speech Speech content Mood Affect Suicidal or homicidal ideation Hallucinations Delusions Anxiety Mini-mental State Examination score 18 When Might Testamentary Capacity Click to edit Be Evaluated? Master title style Acute medical illness Recent Click to medication edit Master changes text styles Concern Second regarding level cognitive function History Third level of malnutrition, substance or alcohol Fourth abuse, level and impaired ability to encode Fifth level new memory If the patient has large and complex financial holdings 19 10

12 Relevant Legal Terms/Definitions Testamentary competency: legal concept of being Click to capable edit Master of executing text styles a will Competency: Second level legal definition defined by Third a judge level Capacity: Fourth level medical determination made by Fifth a doctor level indicating that an individual understands relevant facts and appreciates potential outcomes 20 Relevant Legal Terms/Definitions Codicil: amendment to an existing will Testatrix: Click to historically edit Master referred text styles to a woman Second who level made will Testator: Third level historically referred to a man who made Fourth a will level (became a gender-free term) Holographic Fifth levelwill: handwritten will State Law of intestacy: what happens when no valid will exists 21 11

Lord Cockburn 22 Lord Cockburn s Rule Testator understands the nature of the act he is engaging Click to edit in (understands Master text what styles a will is, understands Second level he is making

13 Lord Cockburn 22 Lord Cockburn s Rule Testator understands the nature of the act he is engaging Click to edit in (understands Master text what styles a will is, understands Second level he is making a will) Testator appreciates the effect of his act Third level Testator understands the extent of his property Fourth level Testator Fifth level knows his natural heirs No delusion/mental illness is influencing the provisions of the will 23 12

14 Collaboration Lord Cockburn s rules can be the focus of Click collaboration to edit Master between text physicians styles and lawyers. Second level The Third physician s level role is to do a complete evaluation Fourth level of the patient and defining clearly any and all problems the patient may have impacting the decision making process. 24 Questions That Will Likely Be Asked Click to During edit an Master Evaluation title style Do you understand that the new will Click to edit Master text styles makes the old will invalid? Second level What are the differences between the old Third will level and the new will? What Fourth is the level reason the will is being written Fifth level or changed? Why divide the estate this way? 25 13

15 Questions That Will Likely Be Asked Click to During edit an Master Evaluation title style Who did you consider putting in the will or Click not including to edit Master and why? text styles How Second will people level feel or view this division? Third level What Fourth are level the economic implications? What Fifth are level the important relationships in your life and why? 26 Recommended Documentation Click and to Collateral edit Master Information title style Legal documents (eg, past wills) Click to edit Master text styles Access to complete financial records Second level Knowledge of who the beneficiaries are, Third level family members, potential close friends Fourth level Complete medical records Fifth level Neuropsychiatric testing Additional interviews 27 14

16 Materials Reviewed in a Postmortem Click Assessment to edit of Testamentary Master title Capacity style Interviews with persons around individual Click to edit Master text styles at the time the will was made Second level Medical records Third level Past wills Fourth level Discovery depositions generated during the Fifth will level challenge Other documents prepared around the time of the will 28 Medical Summary Therefore, after a thorough evaluation, the Click physician to edit Master should have text styles a clear picture of Second the patient s level medical and neuropsychiatric Third level status at the time of the will Fourth production. level What Fifth about level the other major cause of will challenge? 29 15

17 Warning Signs Indicating Undue Influence Older person s actions inconsistent with Click past to edit longstanding Master text values/beliefs styles Older Second person levelmaking sudden changes in Third financial levelmanagement that enrich one Fourth individual level Older Fifth level person suddenly changes his/her will or disposition of assets, belongings, or property and directs assets toward one individual 30 Warning Signs Indicating Undue Influence Caretaker dismisses previous professionals Click to edit Master and directs text styles older person to Second new ones level Elderly Third level person is isolated from others Nonfamily Fourth level caretaker moves into the home Fifth level or takes control of daily schedule Older person directs income flow to caretaker 31 16

18 Warning Signs Indicating Undue Influence Wills, living wills, or trusts altered with new Click caretaker to edit Master or friend text as styles beneficiary or Second executor level Older Third level person finds new caretaker guaranteeing Fourth level lifelong care if he/she gives Fifth level caretaker his/her assets Elderly person in relationship characterized by power imbalance between parties 32 Warning Signs Indicating Undue Influence Caretaker or friend accompanies elderly person Click to to edit most Master important text styles transactions Elderly Second person level writes checks for cash, in Third large level amounts or round numbers, or Fourth gives level cash gifts to caretaker 33 17

19 Warning Signs Indicating Undue Influence Older person increasingly helpless, frightened Click to edit or Master despondent, text styles feeling that only caretaker Second level can prevent further decline Elderly Third level person sees acquaintance or caretaker Fourth level as exalted, with unusual powers or Fifth influence level 34 Additional Risk Factors Patient has recently had episodes in which others Click have to edit questioned Master text business stylesdecisions or Second has recently levelhad poor business out comes. Third level Patient s family is known to have conflict (eg, disowned Fourth level children). Patient s Fifth level family is complex in terms of structure (eg, multiple marriages, stepchildren)

20 Additional Risk Factors Patient has made statements in the past indicating Click to edit how Master property text will styles be distributed, Second level which no longer reflect his/her Third level wishes or personal philosophy Patient Fourth plans level to leave property in unexpected Fifth level or nontraditional manner 36 Factors Predisposing to Financial Exploitation Advanced age (>75) Female Unmarried, widowed, Click to edit Master text styles Second level or divorced Third level Fourth level Organic brain damage Cognitive impairment Recent loss of spouse Living with abuser Physical mental or emotional dysfunction (especially depression) Living alone Social isolation Estranged from children Middle- or upperincome bracket 37 19

21 Factors Predisposing to Financial Exploitation Financially independent with no Click to edit Master text styles designated financial Second level caretakers Third level medications Fourth level Taking multiple Frailty Fear of change of living situation Implied promise by perpetrator to care for elderly person if funds or material good are transferred Elderly person subject to deception Elderly person subject to intimidation 38 Characteristics of Male Perpetrators Who Exploit the Elderly Sociopathic or antisocial character disorder Click to edit Master text styles Developing a caregiver role Second level Living with victim Third level Being economically dependent on victim Fourth level Mental illness or substance abuse history Often related to victim Has health problems 39 20

22 Characteristics of Female Perpetrators Who Exploit the Elderly Has some caregiving relationship with Click victim to edit Master text styles Instills Second sense level of helplessness and dependency Third level Isolates Fourth victim levelfrom family members and other Fifth social level contacts Presents self as protector of victim while isolating from others 40 Characteristics of Female Perpetrators Who Exploit the Elderly Enhances inadequacy and diminished selfworth Click in victim to edit Master text styles History Second of multiple level unstable relationships Often Third falsifies levelcredentials or embellishes personal Fourth power, level role, or position Opportunistic Fifth level Psychologically dysfunctional Predatory 41 21

23 Characteristics of Female Perpetrators Who Exploit the Elderly Antisocial with little regard for rights of others Click to edit Master text styles Methodically Second level identifies victims and establishes Third level power and total control over themfourth level Gains Fifth control level of assets through deceit, intimidation, and psychological abuse 42 Signs and Symptoms Suggesting Undue Influence Elderly person s actions inconsistent with past Click longstanding to edit Master values text and styles beliefs Older Second person level making sudden changes in financial Third level management that enrich one individual Fourth level Elderly Fifth level persons changing their will or disposition of assets, belongings, property, and direct assets toward one who is not natural object of their bounty 43 22

24 Signs and Symptoms Suggesting Undue Influence Caretaker dismisses previous professionals Click to edit and Master directs text older styles person to new Second ones level Elderly Third level person isolated from family, friends, Fourth community, level and other stable relationships Fifth level Nonfamily caretaker has moved into the home or taken control of daily schedule Older person directs income flow to caretaker 44 Signs and Symptoms Suggesting Undue Influence Older person finds new caretaker guaranteeing Click to edit lifelong Master text care styles in return for assets Second level Elderly Third level person in relationship characterized Fourth level by power imbalance between Fifth level parties, with caretaker assuming restrictive control and dominance 45 23

25 Signs and Symptoms Suggesting Undue Influence Caretaker or friend accompanies elder to to Click most to important edit Master transactions, text styles not leaving him Second or her level alone to speak for self Elderly Third level person writes checks for cash, in round Fourth numbers level or large amounts, or gives cash Fifth gifts level to caretaker or caretaker s family 46 Signs and Symptoms Suggesting Undue Influence Click Older person to edit increasingly Master helpless, title style frightened, despondent, feeling that only the Click caretaker to edit can Master prevent text styles his or her further Second decline level Elderly Third level person sees acquaintance or caretaker as exalted, with unusual powers Fourth level or influence 47 24

Charles P. Sabatino ABA Commission on Law and Aging May 20, 2009

Diminished Capacity: How to Recognize It and What to Do About It? Charles P. Sabatino ABA Commission on Law and Aging May 20, 2009 Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers