Mental incapacity and undue influence are the most common theories used to try to invalidate wills, trusts and beneficiary designations in California and elsewhere.  Occasionally, the subject in a trust and estate dispute has a thorough cognitive evaluation performed contemporaneously with his or her estate planning change.  But, more often than not, the medical record is fragmentary.

In a prior post, we discussed the recurring issues that come up in cases involving Alzheimer’s disease.   Dr. Charles Schaffer, a Sacramento forensic psychiatrist, recently sent me an article entitled “Protecting the Health and Finances of the Elderly with Early Cognitive Impairment,” published this year in the Journal of the American Academy of Psychiatry and the Law.  The article focuses on mild cognitive impairment and early Alzheimer’s disease.  The relatively subtle nature of these two medical conditions makes their impact on estate planning decisions hard to fathom.

Written by Dr. Judith Edersheim and other physicians associated with Harvard Medical School, the article describes mild cognitive impairment (MCI) as “an intermediate state of cognitive function between normal aging and dementia, when objective cognitive difficulty is present without significant functional impairment.”  Elders with MCI often progress to Alzheimer’s disease.  Given the subtle nature of MCI, family members and primary care physicians may not recognize it.

Alzheimer’s disease (AD) is the most common cause of dementia, estimated by the Alzheimer’s Association to affect more than 5 million Americans.  Under the new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), mild dementia is categorized as a mild major neurocognitive disorder.

While the Mini-Mental Status Exam (MMSE) is often used as a cognitive screening device for dementia in primary care settings, the authors cite studies showing that the MMSE has poor sensitivity for MCI and early AD, and is especially weak in detecting executive function deficits.

The authors explain that, in addition to short term memory loss and other cognitive decline, MCI and mild AD can cause neuropsychiatric symptoms such as apathy, anxiety, depression, irritability and delusions.  The authors find the high prevalence of apathy especially noteworthy, noting that decreased motivation, task persistence and social engagement may interfere with the completion of detailed financial tasks such as estate planning and may increase acquiescence to the decisions of others, thus enhancing vulnerability to undue influence.

In a survey by Fidelity Investment referenced by the authors, 84 percent of the financial advisors who responded felt they had clients with symptoms of dementia and 96 percent stated they did not feel prepared to deal with those clients.  If MCI and mild AD are difficult to detect, even by primary care physicians, how often do financial advisors, lawyers, accountants and other professionals deal with clients who have subtle cognitive and behavioral impairments?

In California trust and estate disputes, one surrogate measure of estate planning capacity is whether treating physicians have deemed the elder capable of providing informed consent to make medical decisions.  Yet the authors note that clinicians often fail to recognize, or disagree on the significance of, impairments in medical decision making.  The high degree of variability in this context, which is the subject of medical training, suggests the unreliability of clinician opinions as to financial decision making capacity, which is not part of ordinary medical training.

The authors observe that there is insufficient data as to the effects of MCI and early AD on complex decision making.  While neuroscience is advancing, the authors aptly note a need for “better guidelines and evidence-based methods that translate medical concepts into legal practice and financial management settings.”

Overall, the article provides a helpful primer on MCI and mild AD, which as our population ages will be increasingly common background factors in California trust and estate disputes.  Given the complex and evolving nature of the science, lawyers and judges will rely more and more on expert testimony from forensic psychiatrists and/or neuropsychologists.