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Alzheimer's Word Cloud_RevisedFor a richly-detailed profile of a woman’s experience with Alzheimer’s disease, read “Fraying at the Edges,” an article by N. R. Kleinfield that appeared on May 1, 2016 in the New York Times. The author follows Geri Taylor, who was first diagnosed with Mild Cognitive Impairment in 2012 at age 69, and introduces us to her husband and other family members, friends, and participants in support groups.

Although the article does not discuss any conflict over Ms. Taylor’s finances or estate plan, the vivid descriptions of her experience with Alzheimer’s disease illuminate the complexity of its effects on mental function. When an elder with Alzheimer’s disease makes a controversial estate planning change, the variable impact of the disease leads to challenges in assessing the elder’s mental capacity and vulnerability to undue influence, and thus substantial uncertainty in the outcome of a trust contest, will contest, financial elder abuse claim or contested conservatorship.

As Mr. Kleinfield tells the story, Ms. Taylor had a career as a healthcare executive. As her disease progressed, she experienced disorientation when exiting the subway, misplaced eyeglasses and keys, and left a suitcase packed upon returning from a trip. She had problems performing tasks such as putting on makeup in sequential order. She increasingly relied upon her smart phone to keep track of dates and obligations. She found it hard to talk while walking. She could no longer calculate the tip on a restaurant bill and sometimes even tucked the bill away before paying. She became more extroverted and often engaged strangers in conversation. Fortunately, Ms. Taylor had support from her husband and family, an intrepid spirit that led her to get involved with a nonprofit agency supporting Alzheimer’s patients, and the resources to maintain a comfortable life.

According to the Alzheimer’s Association, over five million Americans age 65 and up have the disease, and the number may nearly triple by 2050 as the Baby Boomers are now entering their 70s. Alzheimer’s is the principal cause of dementia, though not the only cause. For Americans 65 and up, Alzheimer’s is the fifth leading cause of death. For many seniors, Alzheimer’s disease becomes one of several primary health issues, and is not always the most acute, such that there is a blurry distinction between death with dementia and death from dementia.

Alzheimer’s disease often sparks California trust litigation. Indeed, I see dementia attributed to Alzheimer’s disease as the most common basis for attacks on estate planning. Below I’ll share the patterns that emerge in such cases.

Fragmentary But Important Medical Records

Records from an elder’s treating physicians are key evidence with regard to the severity of Alzheimer’s disease at the key moments in time. However, the patient history may be unreliable because of the elder’s memory issues or because the family member who accompanies the elder may have an ulterior motive. If son brings Mom in for an exam just as Mom is about to change her trust to favor him, he may paint a rosy picture of Mom’s current mental health.

Treating physicians are focused on wellness and safety, not capacity to make estate planning changes, and so they do not document in their charts the patient’s ability to understand and recollect her finances or her relationship with family members. Also, patients often present with multiple ailments and monitoring conditions such as COPD will diminish the time available for assessment of dementia.

Often Alzheimer’s patients remain with their primary care physicians and are not referred to neurologists or other specialists. There are a variety of cognitive tests that may be administered to patients, such as the Mini-Mental State Examination (MMSE) referenced in Mr. Kleinfield’s piece. The MMSE has limitations and variation in how it is administered can undermine its reliability. There is some evidence that the more recent Montreal Cognitive Assessment test (MoCA) outperforms the MMSE in detecting Mild Cognitive Impairment and early Alzheimer’s disease. Yet both the MMSE and the MoCA are quick checks that provide less information than more elaborate cognitive tests that are rarely administered in clinical settings.

Although trials often feature conflicting testimony from retained medical experts such as forensic psychiatrists, judges give substantial weight to the records and testimony of the physicians who actually observed and treated the elder.

Divergent Testimony of Family Members, Friends and Hired Caregivers

Family and friends who observe the elder are key witnesses to the progression of Alzheimer’s disease. Yet it is rare for such individuals to keep a detailed journal of their observations, such that memories are hazy and often conflicting. Audio and video recordings are uncommon, and usually are not made when estate planning documents are signed. Sometimes paid in home caregivers will log their daily observations, and they can be critical third-party witnesses.

Sparse Documentation in Drafting Attorney’s File

Attorneys who draft estate plans, like it or not, are key witnesses when their clients have Alzheimer’s disease. If the attorney is aware of an Alzheimer’s or dementia diagnosis, the attorney should evaluate which mental capacity standard or standards apply to the various estate planning documents, and the attorney should keep detailed notes on how he or she evaluated the client’s capacity. The attorney should ask open ended questions focused on the elements of capacity, documenting both the questions posed and answers given. When representing a client with dementia, the attorney should be vigilant for indications of undue influence and document the evidence gathered in that regard.

Sometimes the drafting attorney is unaware of a dementia diagnosis because it is not mentioned during the estate planning process – that itself may become a suspicious circumstance. Other times the attorney does not take substantial notes on conversations with the client. Since it may be many years before litigation erupts, an attorney with a skinny file may have little recall of the client when the time comes to testify, making it harder to defend the estate plan.

Litigants Believe What They’d Like to Believe

Family members naturally are inclined to believe what they would like to believe regarding the extent of Alzheimer’s disease. The disfavored child is prone to attribute Mom’s actions to her mental impairment and a scheming sibling. The favored child, who assisted Mom on a daily basis in her last years, will believe that Mom was thinking clearly enough to make her own rational choices.

Under California Probate Code section 811, which is part of the Due Process in Competence Determinations Act, capacity is presumed regardless of a diagnosis of Alzheimer’s disease. The law requires judges to focus on functional impairment, not diagnosis. Yet family members often equate diagnosis with incapacity.

Pivoting from Mental Incapacity to Undue Influence

When Alzheimer’s disease precipitates a California trust contest or will contest, the contestant usually initially alleges both mental incapacity and undue influence, which are separate legal bases for undoing the estate planning in question. Since mental incapacity is hard to prove, especially with a condition as variable as Alzheimer’s disease, the contestant often puts increasing emphasis on the undue influence theory as the litigation evolves. The basic argument is that dementia left the elder highly vulnerable to undue influence even if the elder still had sufficient mental capacity. To reduce this to a mathematical equation, diminished capacity plus manipulation equals undue influence.

Most judges will find that impairment in executive function and short term memory leaves an elder with Alzheimer’s disease more prone to undue influence. Yet the analysis must be specific to the unique circumstances in the case at hand, and that’s why undue influence disputes can result in lengthy trials with uncertain outcomes.

The refreshingly upbeat 20,000-word portrait that Mr. Kleinfield paints of one woman’s journey shows that it’s no simple task to evaluate an estate planning change made by an elder with Alzheimer’s disease.