Dementia casts a long shadow in California trust and estate litigation. Contestants claim that an elder with dementia lacked sufficient mental capacity to make an estate planning change, or that dementia left the elder highly vulnerable to undue influence.
The Alzheimer’s Association, in its annual Alzheimer’s Disease Facts and Figures, provides valuable information for lawyers, both planners and litigators. The Association released its 2023 report on March 15. I’ll share pertinent highlights in this post.
What is the difference between dementia and Alzheimer’s disease?
Facts and Figures explains that dementia is a group of symptoms relating to mental function, such as memory and problem-solving skills.
Alzheimer’s disease is one of many causes of dementia. Hallmarks of the disease are an accumulation of the protein beta-amyloid outside neurons and twisted strands of the protein tau inside neurons.
Other causes of dementia are summarized in Facts and Figures. While Alzheimer’s disease is the most common cause, “mixed pathologies” are frequently involved. For example, cerebrovascular disease and Lewy body disease often co-exist with Alzheimer’s disease. Studies suggest that such “mixed dementia” is the norm.
“Alzheimer’s dementia” is the term used to describe dementia caused by Alzheimer’s disease.
Facts and Figures contains a helpful table that compares signs of Alzheimer’s dementia with “typical age-related changes.” For example, an elder may have occasional difficulty remembering names or appointments, but a person with dementia has memory loss that disrupts daily life as by requiring increasing reliance on memory aids or family members.
Alzheimer’s disease proceeds on a continuum, the first phase being preclinical when the patient may not have observable symptoms. The second phase is mild cognitive impairment, which features subtle symptoms that (as we noted in a prior post) may increase acquiescence to others. Interestingly, some people with mild cognitive impairment revert to normal cognition.
Many people progress, though at varying rates, from mild cognitive impairment to Alzheimer’s dementia. Most of those in the initial or mild stage of dementia are able to function independently in many areas, such as driving and participating in favorite activities, but handling finances may become challenging.
While Alzheimer’s disease is ultimately fatal, people may live for 20 years or more after being diagnosed.
How prevalent is Alzheimer’s disease?
Alzheimer’s disease is not a normal part of aging. Yet age is the greatest of the known risk factors.
Facts and Figures reports that five percent of Americans age 65 to 74 have Alzheimer’s dementia, increasing to 13 percent of people age 75 to 84, and 33 percent of people age 85-plus.
As the baby boomers age, California is expected to experience a 22 percent increase in Alzheimer’s dementia between 2020 and 2025, as compared with a 33 percent increase in more-rapidly aging Arizona. By 2050, the percentage of the U.S. population age 85+ will double from 11 to 22 percent, and thus the prevalence of Alzheimer’s disease will increase.
The good news is that some risk factors are modifiable. A 2022 study found that almost 37 percent of Alzheimer’s and other dementias in the United States were associated with risk factors such as midlife obesity and physical inactivity.
Nearly two-thirds of Americans with Alzheimer’s disease are women, attributable in part to their greater longevity.
Why is Alzheimer’s disease not diagnosed earlier?
Only about 40 percent of Americans say they would talk to their doctor right away if they were experiencing symptoms of mild cognitive impairment. Of those with subjective cognitive decline – that is, a self-perceived worsening of thinking or memory – over 54 percent had not consulted with a health care professional.
The failure to report cognitive decline is attributable in part to the patient. Cognitive problems are often misconstrued to be part of normal aging, not a diagnosable and potentially-treatable medical condition.
Primary care doctors are also bear responsibility for not initiating discussions about mental function. A staggering 97+ percent of such doctors report waiting for patients or family members to report symptoms or request an assessment. Doctors say they don’t have enough time during a visit to perform a cognitive function evaluation and do not feel confident using assessment tools.
While most initial diagnoses are made by primary care doctors, almost 40 percent report that they were “never” or “only sometimes” comfortable making a dementia diagnosis.
Primary care doctors often refer patients to a specialist such as a neurologist or gerontologist. Yet such specialists are increasingly scarce, especially in rural areas.
Who are the caregivers?
Almost 1.4 million Californians, mostly family members and friends, provide unpaid care to residents with dementia, and two-thirds of such caregivers are women.
Most unpaid caregivers live with the person for whom they care. About one-quarter are “sandwich generation” caregivers, responsible for an aging parent and at least one child.
Direct care workers are paid to help older adults in their residences or at care facilities. By 2030, California is projected to need almost a million such workers, but long-term care providers are struggling to retain workers to meet the current demand. The annual turnover rate is 64 percent for workers providing home care and 99 percent for workers in nursing homes.
Many trust and estate disputes involve unpaid and/or paid caregivers. They may end up, rightly or wrongly, as major beneficiaries of an elder’s estate plan. Unpaid caregivers may claim fees for their services, and paid caregivers may bring wage and hour claims. Caregivers also may be the star witnesses as to an elder’s mental state or family dynamics.
What does this all mean for California estate planners and litigators?
Lawyers, like other professionals, have implicit biases. Facts and Figures helps estate planners think past stereotypes. It is true, statistically speaking, that a 90-year old client is more likely to have Alzheimer’s dementia than a 70-year old client. Yet a dementia diagnosis, even when it occurs, by no means establishes that a person lacks capacity to make or change an estate plan. Estate planners should focus on function, not age, when working with clients.
A recent State Bar ethics opinion, discussed here, provides guidance on working clients who have diminished mental capacity.
For litigators, understanding the causes and effects of dementia will be ever more critical to sizing up a potential claim or defending against it. Facts and Figures provides a helpful starting point. Foundational knowledge as to the science of dementia, along with California’s various legal standards for mental capacity, will position an attorney to review medical records, depose primary care physicians, work with retained experts, and ultimately present a case to a judge or jury.