Alzheimer’s, A Legal Perspective
By: Miller Davidge
Alzheimer’s disease is an irreversible, progressive brain disease that slowly destroys memory and thinking skills. Eventually it destroys the ability to carry out even the simplest tasks. Alzheimer’s is not something everyone will have, but with our aging baby boomer population, it may become what some have called “the disease of the 21st century”. For those over 65, the possibility of contracting Alzheimer’s doubles about every five years.
As we age, neurons in the brain begin to shrink, especially those important to learning and memory. This is a natural and normal consequence of aging. Tasks least affected include language and vocabulary, abstract reasoning and problem solving, and mental-spatial abilities as typified by understanding directions, reading maps, appreciating art.
What goes first? Abilities most affected by age are timed memory tests, tasks requiring focused attention, and recall and processing of new information. We can still do these things, just a little more slowly. As a 68-year-old attorney I can testify that I take a little longer than before to do these things, and certainly not as quickly as my partner is who still in her 30s.
With Alzheimer’s usually the brain cells destroyed first are those responsible for memory, followed by areas responsible for cognition, emotion, judgment, mood and motor skills. Generally, a physician knowledgeable about Alzheimer’s will make an accurate diagnosis about 90% of the time—an astounding figure, considering that the only conclusive Alzheimer’s diagnosis comes from a post-death examination of the brain.
So, how does a person diagnosed with the disease and his or her family handle legal matters for the Alzheimer’s patient? First, consider that a person with mild Alzheimer’s will likely be legally competent to make a will and execute other legal documents. Texas courts have used the terms “sound mind” and “testamentary capacity” interchangeably to indicate the level of mental capacity required to execute a valid will. Testamentary capacity is generally defined as the ability to know and understand the business in which the person making the will is engaged, the effect of the action of making his will, the objects of his bounty (property), and the claims upon him and the general nature and extent of his property.
Following is “short list” of documents that every older person should have; a will, medical and business powers of attorney, a directive to physicians, and a guardianship designation. A person with mild Alzheimer’s may still have the requisite capacity to execute a will and these other important documents that the patient will need as the disease progresses. In fact, even someone with moderate Alzheimer’s may have the requisite “cyclical lucidity” to understand their actions and make informed decisions during lucid periods. Often an attorney meeting for an Alzheimer’s patient should be scheduled in the morning to avoid the “sundowning” effect, where the patient becomes more agitated and less lucid as the day progresses.
In situations involving an Alzheimer’s patient, the lawyer has to ask himself, “Who is the client?” Many times, the family of the patient will pay the legal fee, but from the lawyer’s viewpoint, the one seeking the lawyer’s services is the client. The same rules of confidentiality, conflict of interest, and undue influence apply. It is imperative that the attorney not only be satisfied that the Alzheimer’s patient has testamentary capacity, but that the patient is not being influenced improperly. The attorney must take extra care to see that his client’s wishes are completely conveyed and then carried forward in the documents.
Also, the selection of fiduciaries for Alzheimer’s patients is extremely important. A person given authority under a power of attorney, either for business or health care, should know and understand the patient’s wishes, and be trusted to carry out those wishes. Unfortunately, on many occasions, a person will select a spouse or oldest child, without considering whether that person will carry out the wishes of the patient, or is best suited for that position.
A good attorney working with an Alzheimer’s patient can successfully work through the obstacles that arise in the early stages of the disease to provide the client with legally binding estate planning documents that protect the client, and accurately reflect the client’s wishes.
For more information, you can reach Miller Davidge or Tiffany Wright at 940-382-9500.