Testamentary Capacity and Chronic Illness Case Studies for Discussion
By: Martin M. Shenkman, CPA, MBA, JD
ABA Conference CallEmotional and Psychological Issues in Estate Planning CommitteeTestamentary Capacity and Chronic Illness: Discussion Questions and Case Studies
February 2, 2012
By: Martin M. Shenkman, Esq.
COPD Case Study: Chronic Obstructive Pulmonary Disease (“COPD”) can result in the destruction of the lungs. Many lay people might view this purely as a physical impairment that should not have a cognitive impact. But is that really the case? Someone living with COPD experiences shortness of breath and difficulty breathing. This can lead to less oxygen reaching the lungs, blood stream, and body (“hypoxia”). With COPD, if there is an acute event, the client could become hypoxic and acutely confused. But, after treatment and recovery, when their oxygen level recovers sufficiently they may revert to cognitive baseline. However, if there are many flare ups, repeated assaults, some clients might not fully recover nor return to baseline. There may be permanent brain damage. In contrast, other clients with COPD might experience many flare ups and not experience any brain damage. The message for practitioners is that if there a particular client has experienced repeated flare ups there should be an assessment done of mental capacity, especially if the dispositive scheme is not a natural one. Anyone in a panic over not breathing will likely be terrified and that is not the time to execute a document. How can practitioners ascertain whether a particular situation is acute or not? If a disease that appears to be primarily physical can have profound cognitive impact what precautions should practitioners take to assure that they don’t misinterpret the client’s status?
Evaluations: What type of competency and related evaluations should be undertaken? The testing process itself can lead to a false positive, i.e., suggesting a conclusion of cognitive impairment when in fact there may be none. A neuropsychological test can be helpful to identify progression of illness and type of cognitive impact. But caution is in order because the tests themselves don’t determine capacity. In fact, the testing process can cause the conditions resulting in the misleading indication. Example: A client age 85 is given a 6 hour neuropsychological test. At the end of the test this elderly client’s performance could be affected as a result of the fatigue caused by the testing process itself. Testing at the end might suggest impairment. But is it really an impaired memory or cognitive blocking caused by anxiety from the testing process? If even a younger client is living with a chronic illness cognitive fatigue from their disease over a long test period might end in similar inappropriate results. Often the overall competency assessment should not be based solely on only a single type of test, because of fatigue, anxiety or other factors. How can practitioners ascertain whether the testing process was sufficient? If a negative conclusion results, what might a practitioner do next to endeavor to support competency in face of the negative result?
Undue Influence, not only competency, must be considered: How at risk is a particular client to undue influence and what can be done to ascertain the client’s true wishes, and corroborate them? Even with the risk of undue influence, if the client has been consistent for decades, their wishes may be clear. The real challenge is in assessing the reality of undue influence in a client living with moderate dementia. While changes in the client’s historical pattern of his or her dispositive might suggest an issue, is it? Example: Boyfriend is living with Girlfriend who has moderate dementia. But Girlfriend, after not seeing her son for many reconsiders. Boyfriend, who has been taking care of her for many years, becomes her real object of distribution. Girlfriend may truly wish to leave everything to Boyfriend and nothing to the son. The mere fact of the potential for undue influence by Boyfriend as her caregiver does not give rise to a conclusion that undue influence has occurred. A myriad of factors must be considered including: the social situation, personality, even religious and cultural issues. What can be done to protect such a client? What is the inter-relationship of lack of capacity and undue influence? How can a practitioner identify the significance of each issue? Case Study: The determination was that the client had capacity, but was affected by undue influence. A court might find that the client had capacity, but then disqualify the will based on undue influence. See, In re Estate of H. Earl Hoover, no. 73519, Supreme Court of Illinois, June. 17, 1993. Since capacity is a continuum, even if capacity is diminished, it may prove easier to demonstrate undue influence. Undue influence can be a more significant issue with chronic illnesses that create dependency but don’t impact cognition. The knowledge of imminent death, or the awareness of the debilitating future affects of a chronic illness, can create such anxiety that it can create capacity issues and greater exposure to undue influence.
Alzheimer’s and Testamentary Capacity: Can a client who has been diagnosed with Alzheimer’s disease execute a will? At what point on the line of Alzheimer’s disease progression will that client no longer likely be able to execute a new will? How can the practitioner identify when such a client will not be able to execute a will? The determination depends on a range of factors: the complexity of the document, how relaxed the execution ceremony and is, whether other medical issues have an impact, etc. A client living relatively simple will with mild Alzheimer’s disease may not be an issue. Even with more advanced illness, if the client has sufficient capacity to understand the natural objects of his or her bounty, it may still be feasible to execute a will. In early stages of the disease, practitioners should not draw an immediate conclusion that sufficient capacity does, or does not, exist based merely on the label involved. If the diagnosis was made by a primary care physician, what reliance is reasonable to place on the conclusion and what precautions should a practitioner take? Does the fact that the client was prescribed a drug, such as Aricept, provide any guidance as to the cognitive status of the client?
Conflicts Affect Analysis: How might conflicts between family caregivers and professional caregivers affect the client? California, as an example, requires special procedures for them to be named an heir if not related by blood. The entire social context of the client should be evaluated. Are there other people in the person’s life? Has the caregiver isolated the client? There is obviously a significant difference between family members not wanting to have anything do with the client, or the caregiver isolating the client from his or her family. How can a practitioner ascertain which is actually occurring? Isolation is a clear flag for the presence of elder abuse. Example: The family member perpetrating the isolation, “Bad Sibling,” may tell the client that the other family member, “Good Sibling” did not wish to speak to the client, while the Bad Sibling actually created the isolation. These types of situations may be served by having an independent evaluation by a mental health professional of the client alone. One issue to be cautious of is that Bad Sibling may be the person paying the caregiver or other aide, or even the care manager. If someone is trying to isolate the client, the family may find that if they try to make contact the Bad Sibling may abuse the client to dissuade the client from consummating the contact. If the client has a chronic illness that creates significant dependency, the risks of this type of abuse and manipulation are exacerbated.
Depression: Many chronic illnesses, in addition to physical or other symptoms are coexistent with depression. Depression can be part of the symptoms of the illness itself, or as the result of the impact of the illness on the client’s quality of life. How might depression affect the client’s objectives, capacity, and risk for being unduly influenced? What does the term “depression” mean? The client may be going through a mourning response, e.g. after a negative diagnosis. This is different then clinical depression in which sleep may be impaired, they see the world through dark colored classes, they may loose weight, they may have little energy and no concentration, etc. Depression may make someone more susceptible to undue influence. But if concentration is impacted cognitive function may also be affected. Chronic illness that creates dependency depression may heighten the risk of undue influence. How can practitioners identify these circumstances? The considerations are more complex then many realize. Is the disease process itself causing depression? Is the client’s emotional reaction to the disease causing depression? Is the medication prescribed to treat the disease causing depression?
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