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Understanding Dementia Medical-Legal Implications

By Sanjay Adhia, M.D.

A person with advanced dementia may not be able to make decisions for themselves with significant legal consequences.

Dementia information
Dementia

Dementia

Dementia
Dementia deaths
COVID and Dementia
People and dementia

Why Attorneys Should Learn About Dementia

More Dementia, More Competency-Related Litigation

Dementia-related litigation may well grow to reflect the increasing population of the United States with age-related cognitive impairment. Along with this increase is the need for expert witnesses who have medical-legal expertise in conducting IMEs and experience in treating those with dementia.

America Is Aging

  • Over Age 40.  Half of Americans are now over the age of 38, according to the US Census Bureau (census.gov.) Population bulges (e.g., baby boomers) mean a large population is over 70 years old.
  • Life Expectancy. Age-related dementia is reflected among those approaching the later decades of an 80-year life expectancy.
  • Prevalence. Nearly 6.5 million Americans are living with dementia. It is predicted the number in the US will likely double in coming decades. In addition, 55 million are living with dementia worldwide, and that number is expected to triple in the next 25 years.
  • Baby Boom Generation. Baby boomers are 61-72 years old as of 2023. The baby boom generation, defined as those born between 1946 and 1964 (Merriam Webster) are in the riskiest time of life for age-related diseases.

Legal Implications

  • Documenting a Diagnosis of Dementia. Older Americans understandably have more doctor visits as they develop age-related diseases. This means more opportunities for a healthcare provider to note symptoms of dementia. While we can expect the number of dementia diagnoses to increase, this does not mean we can assume an aged person has impairment or diminished cognition. There is no substitute for a close review of the medical records and the observations of an evaluee’s doctors.
  • Impact of Treatment. Better treatment for cognitive decline may change the face of competency despite a dementia diagnosis. Measuring cognition is a matter for experts such as neuropsychologists and specialists in brain function including in the performance of activities of daily living (ADLs).
  • Documenting for the Trier of Fact. A Forensic Psychiatrist or Psychologist views a diagnosis of dementia in the context of the legal challenges. This medicolegal perspective is not the mandate of a clinical psychiatrist, who treats and alleviates symptoms. Medical record review has a unique meaning for a forensically-trained expert witness.
  • Impaired Americans Are Making Life-Changing Decisions. 6.5 million+ people are developing impairments due to dementia. Some have no conservator or other legally authorized decision-maker. Even if their dementia is advanced, they may be making financial and estate-planning decisions for themselves that can ultimately lead to lawsuits.

Dis/Proving Dementia

The presence of dementia is generally established by a diagnosis from a physician. We know that age-related diseases send senior Americans to the doctor for a variety of reasons. This is also where symptoms of dementia are observed, diagnosed, and documented. The testimony of physician expert witnesses with access to medical records can be a powerful tool for the trier of fact.

Competency and Lucidity

A diagnosis of dementia opens up the door to questions of competency in any facet of conducting day-to-day transactions and big financial decisions.

I think we can agree that in a legal transaction, it’s important to know if the parties are thinking clearly and understand the benefits and consequences of their actions.

Evidence

A dementia diagnosis can be a pivotal evidentiary point

  • Testamentary Capacity
  • Undue Influence
  • Financial Fraud

Criminal court is now a venue for discussion of dementia, sadly. Elder abuse in the form of fraudulent scams has shed new light on the role of dementia, Alzheimer’s disease, and other degenerative and age-related cognitive decline and vulnerability. Proving the presence or absence of dementia and other cognitive defects might shift the pivot of a case or direction toward settlement or trial.

What Does “Dementia” Mean?

Dementia is formally known as a “neurocognitive disorder,” or NCD. It is described by the CDC as a “general term for the impaired ability to remember, think, or make decisions that interferes with doing everyday activities.” [1]

Diagnosing and Stages of Dementia

Dementia has a variety of stages, from mild to major. [2] Dementia itself is not a disease, but rather a broad term that encompasses several conditions, including Alzheimer’s disease.

There are distinct elements to the stages and diagnoses of dementia.[3] For example, mild cognitive impairment [4] is the transition from normal aging to a more serious decline into dementia.

Disease of the Elderly

Dementia is usually seen in older people. However, while some elderly people may have mild age-related cognitive decline, most do not develop dementia. This is not to say that young people never develop dementia, but the reasons are usually different and not as common.

Thinking Clearly

Regardless of the age of a person with dementia, this serious condition can impact a person’s ability to make important decisions that require clarity of thought. Arguably, a person is impaired if they no longer can lucidly think through the benefits and consequences of a decision.

Informed Decisions, Dementia, and Competency

If a person with dementia is making a will or trust, selling real estate or a business, or making gifts of money, art, or other tangible items, the potential legal consequences are troubling. Signing or revoking a financial power of attorney are also acts that require competency, as is signing or revoking a medical power of attorney, sometimes called a “living will.”

Assessing if dementia is or is not present is a job for a physician qualified to assess neurocognitive disorders.

Everyone, including doctors, are alerted by signs and symptoms that raise the possibility dementia is present.

Brain disease Dementia changes mental abilities

Signs and Symptoms

Dementia involves problems with memory, attention, communication, reasoning and visual perception. Signs of dementia may include:

  • Getting lost in a familiar neighborhood
  • Forgetting the name of someone close
  • Forgetting cherished memories
  • Losing the ability to complete tasks independently, such as activities of daily living (ADLs) or instrumental activities of daily living (IADLs)
  • Confusion that is out of character
  • Personality or behavior changes
  • Apathy and withdrawal
  • Depression
  • Paranoia
  • Difficulty with balance, walking and eating
  • Incontinence
  • Communication impairments, struggling with word choice, changed mastery of vocabulary, aphasia (loss of ability to understand or express speech)

Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL)

How we cope with a daily routine of tasks can change when dementia is present. This figure illustrates the differences between ADLs and IADLs. Dementia can impact both. Difficulty carrying out ADLs or IADLs may be an alert that a physician should assess if dementia is present or in the early stages. Dementia can be severely disabling when people cannot perform the basic tasks of life, such as bathing to paying bills.
Fig. 1 [5]

Causes of Dementia

There are many disorders and conditions that result in the loss or damage of neurons and their connections in the brain, leading to dementia.

This table contains some of the most common causes or features of conditions associated with dementia, such as Alzheimer’s disease, Lewy body dementia, stroke (vascular dementia), Parkinson’s disease, TBI, and others.

Diagnosis

Diagnosing dementia involves a clinical examination with a history and physical and mental status exam. The workup may also include labs, neuroimaging (such as an MRI [7]) and neuropsychological testing.

Who Is Qualified to Diagnose Dementia?

Psychiatrists, neurologists, geriatricians, and physical medicine and rehabilitation (PMR) doctors are the specialists who generally diagnose dementia. Neuroradiologists can assist with the diagnosis. Some symptoms raise an “index of suspicion” that dementia may be present. Generally, any physician who observes possible symptom(s) of dementia will refer the patient to a medical specialist in neurocognitive conditions like dementia.

Psych Testing

Neuropsychological tests administered by a qualified licensed neuropsychologist can be helpful to the physician in diagnosing dementia.

Screening for Dementia

Many physicians, myself included, are trained and certified to perform the Montreal Cognitive Assessment (MoCA), a frontline screening test. The MoCA is a cognitive screening test designed to detect mild cognitive impairment (MCI) and Alzheimer’s disease. Administering the MoCA is a decision for a neuropsychologist or physician certified to do so. A MoCA is not indicated in every case. It is worth noting that neuropsychological testing or neuroimaging in and of itself may not be sufficient to render a diagnosis.

Delirium vs. Dementia

It is important to be able to distinguish delirium from dementia. Delirium is generally caused by a medical condition or toxicity. Often, they can co-occur. Generally, delirium is characterized by:

  • Acute onset
  • Fluctuating course
  • Altered consciousness

Typically, dementia has a more gradual onset and progressive course and is usually with intact consciousness.

Treatment

Treatment for dementia depends on the cause. Some causes, like Alzheimer’s disease, have no cure, but there are treatments that can modestly improve cognition in some individuals or slow the rate of decline.

Additionally, there are medications that can be useful in protecting the brain or helping with mood or behavioral disturbances.

Maintaining a healthy lifestyle with diet and exercise and maintaining social contacts can be preventive.

Medication

Certain medications, both prescribed and over-the-counter, can complicate or worsen dementia. Impairment in cognition, for example, can co-occur with the use of certain prescription or over-the-counter medications, such as oral antihistamines like Benadryl (with anticholinergic activity).[8]  Caregivers need to be aware of these concerns.

Legal Considerations | Medical-Legal Perspective

Dementia can impact a variety of cognitive domains and other abilities. It may result in changes in competency or behavior.

People of all ages are used to making decisions, presumably informed and logical.

Decision-Making

If dementia in any way impairs a person’s competency, the Trier of Fact is better able to make a judgment when a medical forensic evaluation has determined if a neurocognitive disorder like dementia is or was a factor in decision-making.

Malpractice and Medical Negligence

Standard of Care in Institutions / Assisted Living / Nursing Homes / Hospitals

Many individuals with dementia choose to live in an institutional setting such as assisted living. Others must do so due to an inability to fully care for themselves, such as living in nursing homes, hospitals, or geriatric psychiatric facilities where there could be instances of medical malpractice or negligence in providing the appropriate standard of care.

Self-Advocacy in Health and Lifestyle Decisions

Dementia can interfere with a person’s ability to assess their personal medical care and/or report malpractice or negligence. In advanced dementia, self-advocacy is unlikely, if not impossible.

Negligence

Negligence can be intentional or unintentional. It is not always malicious. Negligence is not limited to medical treatment. Those with dementia may also have a higher risk of falls due to multiple reasons, including getting lost or the effects of medications. Some cognitive impairments affect balance. Staff in facilities caring for those with dementia will benefit from training about such risks.

Home Caregivers

Others are at home with a caregiver who may be a family member or retained through an agency. Caregivers may not have adequate medical training. Caregivers may also be trained nursing aides or, less frequently, registered nurses.

Disability: Impact on Life and Work

Those with dementia may have decreased ability to perform work-related duties. A Fitness for Duty or other occupational evaluation may be appropriate in such a situation.

Many jobs require appropriate behavior and interpersonal functioning, which may be problematic for those with dementia. Additionally, adequate memory is necessary for many essential job functions and fundamental tasks.

Some of the moderate and severe cases of dementia involve individuals who have decreased ability to perform activities we take for granted. The chart above does an excellent job of demonstrating activities of daily living that can be diminished by dementia, ranging from basic hygiene to balancing a checkbook.

Contractual Competency

Individuals with dementia may lack capacity to execute contracts, which could include:

  • irrevocable or revocable trust
  • life insurance trust (irrevocable)
  • sale of an asset including deeds
  • purchase of an asset
  • power of attorney
  • obtaining a loan or refinance on real property

Testamentary Capacity

Assessing Competency to Sign a Will

Those with dementia may not be able to understand the prerequisite elements of a will.[9]  Similarly, they may have dementia but because of its mild or moderate severity, they may still be competent to consider a will and plans to bequeath their estate.

A testamentary capacity assessment of a living person can occur when they are about to sign a will or trust.

In many will-contest cases, the individual in question is deceased. When the estate is being distributed, unexpected bequests may lead beneficiaries to wonder if the testator (person making the will) was competent when they signed the document.

Assessing a Decedent’s Capacity Retrospectively

To determine testamentary capacity after death requires some detective work to opine on the person’s mental state in the past.

If an autopsy is ordered, the deceased’s brain and other findings may provide clues about dementia or other neurocognitive disorders.

In addition, a close review of medical records and collateral interviews with the deceased’s treating physicians, family, friends, or caregivers are a consideration for the forensic evaluator.

As a Forensic Psychiatrist, I also scrutinize the observations of anyone who benefits emotionally or financially.

Undue Influence and Dementia

Does Dementia Make a Person More Vulnerable?

Those with dementia are emotionally and cognitively susceptible to undue influence. Undue influence is often litigated with questions of testamentary capacity.

Probate litigation may address a range of behaviors by the testator that give rise to the legal conflict. The behavior of others around the testator may also be relevant to the extent they appear to manipulate or control the testator with dementia.

Just because a person has dementia does not mean they will be unduly influenced for someone else’s gain. However, it is a risk factor.

Undue influence is complex. Psychological and medical factors are usually at play, and a detailed discussion is a topic for a future article. 

Fraud

Scammers can seek to exploit diminished cognitive capacity in the elderly. Above, I identified several ways in which dementia can manifest. For example, “confusion that is out of character” may cause a person to believe an unlikely story that involves transferring money to someone they do not know. Another form of fraud is manipulating a person to sell or give away their assets in an uncharacteristic manner. This does not have to be a family member, though that may be the case.

The capacity for self-advocacy and critical thinking is crucial to defend against fraud.

Elder Abuse

Those with dementia could be susceptible to elder abuse. Elder abuse can involve physical abuse, psychological abuse, sexual abuse, financial exploitation, medication abuse, passive or active neglect.

Crime

Competency to Stand Trial & Criminal Culpability

Dementia may influence alleged criminal acts or lead to incompetency to stand trial. It is important to remember that dementia is not only seen in the elderly. Brain injuries are believed to be associated with early-onset dementia, for example. As a result, dementia may be a factor in competency to stand trial or culpability.

Unlike some cases of incompetency due to schizophrenia, those with dementia are generally more likely to be unrestorable (e.g., treatment will not restore them to be competent to stand trial). Dementia may provide the basis for an insanity defense or sentence mitigation. In some states, such as Texas, a forensic certification in psychiatry or psychology is required to opine in Insanity or Competency to Stand Trial cases. Geriatric psychiatrists and neurologists without forensic certification would not be permitted in some states to opine on these questions.

How to Choose the Right Dementia Expert Witness

Case-Specific Questions

In choosing an expert witness for cases involving dementia, take note of the expert’s background and qualifications about the issues in your case. At the time of retaining an expert, before incurring costs, proactively avoid having your expert disqualified due to a lack of expertise about the subject. Dementia and brain injuries and diseases fall under specialty training and experience.

Applicable Board-Certification

It may appear logical to an attorney with a case involving claims of dementia to consider an expert in dementia-related medical specializations. Note that diagnosis and treatment is the training of those board-certified in specializations such as geriatric medicine, neurology, internal medicine, psychiatry, and others.

Treatment and Forensic Experience

However, in treatment-focused medical specializations, no training is received in medico-legal considerations. This can have consequences in a lawsuit.

Training in medical diagnosis and treatment does not include application to medico-legal considerations. As a result, a physician may arrive at a diagnostically sound opinion that is not helpful to a jury considering a legal matter with complex and unique features and consequences.

Forensic psychiatry is the only medical specialization that addresses the interface of psychiatry and law, e.g., interpreting and opining about complex medical-legal features relevant in a lawsuit.

A doctor board-certified in forensic psychiatry with further subspecialty certification in brain diseases (i.e., brain injury medicine) may be a better choice of expert witness than a physician with other specializations.

If more than one physician in complementary specialties best serves a jury or judge, a team of a forensic psychiatrist and another specialist may be indicated, depending on the complexity of the case.

Neurology / Forensic Psychiatry

Although neurologists are adept at treating dementia and its neurological causes, they may not have the experience to evaluate the psychiatric complications of dementia, which can have the types of medical-legal implications described in this article.

As a Forensic Psychiatrist Board-Certified in Brain Injury Medicine, I regularly treat both the psychiatric and neurocognitive manifestations of dementia due to TBI, stroke and other neurological conditions. In addition to NCD due to TBI, which is of more immediate onset, TBI can elevate the risk of developing Alzheimer’s disease years after the brain injury. My patients at TIRR Memorial Hermann include individuals who may have developed an NCD after, for example:

What Is Neuropsychiatry?

The term “neuropsychiatry” is descriptive. There is no universal criteria to determine what constitutes a neuropsychiatrist.

Broadly speaking, neuropsychiatry describes treatment in the interface of psychiatric conditions and injuries and diseases of the brain.

Many knowledgeable psychiatrists also specialize in brain disorders that are not exclusively psychiatric. There may be overlap in symptoms, diagnosis, and treatment. Such a physician might self-identify as a  neuropsychiatrist. They may or may not be neurologists.

Neuropsychiatrists are not homogenous in their professional qualifications or expertise.

I practice psychiatry and brain injury medicine (BIM). BIM is in the realm of rehabilitation medicine, thus I am a neuropsychiatrist inasmuch as I practice psychiatry with patients who also have a neurological injury or disease. I may treat complex interactions between conditions.

Neuropsychiatry is not a subdiscipline board-certified by the American Board of Psychiatry and Neurology, the body that board certifies psychiatrists, forensic psychiatrists, and neurologists.

*Neuropsychology is an entirely different, non-medical discipline.

  • A severe blow to the head, such as in a car accident or fall, can result in TBI.
  • A stroke could result in vascular dementia.
  • Repeated concussions (mTBI) such as those suffered by an athlete are described by some as causing chronic traumatic encephalopathy (CTE), though research is inconclusive.

Conclusion

Dementia is a neurocognitive disorder that can profoundly impact a person’s quality of life, independence, and ability to make decisions. Scientists and doctors continue to research the causes and risks of dementia to help discover effective ways to treat and prevent it.

As competency is a feature of many adjudicated matters, dementia has numerous medical-legal implications. If dementia is a possible factor in a case, the Trier of Fact may wish to have this assessed with a forensic evaluation conducted by a qualified physician.

It is advisable to retain an expert who has both medical-legal expertise in conducting IMEs, such as a Board-Certified Forensic Psychiatrist, and experience in treating those with dementia. 

Endnotes:

I encourage readers to learn more about dementia. Here are some sources you may find interesting. This is not an endorsement of the sources’ validity.

  1. Centers for Disease Control and Prevention. What Is Dementia? (2019, April 5). Retrieved from https://www.cdc.gov/aging/dementia/index.html.
  2. American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders(5th ed.), p. 602. https://doi.org/10.1176/appi.books.9780890425596.
  3. Mayo Clinic. Dementia: Symptoms and causes. (2021, June 17). Retrieved from https://www.mayoclinic.org/diseases-conditions/dementia/symptoms-causes/syc-20352013.
  4. Mayo Clinic. Mild cognitive impairment (MCI). (2020, September 02). Retrieved from https://www.mayoclinic.org/diseases-conditions/mild-cognitive-impairment/symptoms-causes/syc-20354578.
  5. Legislative Analyst’s Office. A Long-Term Outlook: Disability Among California’s Seniors. The California Legislator’s Office Non Partisan Research Fiscal and Policy Advisor, p. 6. Retrieved from https://lao.ca.gov/reports/2016/3509/disability-long-term-outlook-112816.pdf.
  6. Op cit. [re CDC reversible causes]
  7. Chandra, A., Dervenoulas, G., Politis, M. et al. (2019). Magnetic resonance imaging in Alzheimer’s disease and mild cognitive impairment. Journal of Neurology, 266, 1293–1302. https://doi.org/10.1007/s00415-018-9016-3.
  8. ElderConsult. Anticholinergic Meds. (2019, September 9). Retrieved from https://www.elderconsult.com/resources/medication/anticholinergicmeds/.
  9. The term “testamentary capacity” is often used in connection with the signing of a will. In fact, a will may not be the guiding instrument to distribute a person’s estate. The term “testamentary capacity” is used here to generally describe questions of competency that apply to estate planning decisions.

 

Table top of page:

These sites provide statistics and information about dementia worldwide and in the United States. We have not conducted a thorough peer review of these sources, but we hope the reader will find it interesting to read about dementia and its impact on society, mortality, and prevalence.

1 in 3 Seniors dies with Alzheimer’s or another dementia.  Alzheimer’s and Dementia: Translational Research and Clinical Interventions Journal (TRCI)

GBD 2019 Dementia Forecasting Collaborators. Estimation of the global prevalence of dementia in 2019 and forecasted prevalence in 2050: an analysis for the Global Burden of Disease Study 2019. Lancet Public Health. 2022 Feb;7(2):e105-e125. doi: 10.1016/S2468-2667(21)00249-8. Epub 2022 Jan 6. PMID: 34998485; PMCID: PMC8810394. https://pubmed.ncbi.nlm.nih.gov/34998485/ NB: “GBD” is “Global Burden of Diseases.”

The top 10 causes of death. World Health Organization, Dec. 20, 2020  https://www.who.int/news-room/fact-sheets/detail/the-top-10-causes-of-death

Alzheimer’s Association Facts and Figures. https://www.alz.org/alzheimers-dementia/facts-figures#:~:text=1%20in%203%20seniors%20dies,rise%20to%20nearly%20%241%20trillion.

Thies, W. and Bleiler, L. (2013), 2013 Alzheimer’s disease facts and figures. Alzheimer’s & Dementia, 9: 208-245. https://doi.org/10.1016/j.jalz.2013.02.003

Global Dementia Observatory. World Health Organization report. https://www.who.int/data/gho/data/themes/global-dementia-observatory-gdo

Zhou Y, Xu J, Hou Y, Leverenz JB, Kallianpur A, Mehra R, Liu Y, Yu H, Pieper AA, Jehi L, Cheng F. Network medicine links SARS-CoV-2/COVID-19 infection to brain microvascular injury and neuroinflammation in dementia-like cognitive impairment. bioRxiv [Preprint]. 2021 Mar 22:2021.03.15.435423. doi: 10.1101/2021.03.15.435423. Update in: Alzheimers Res Ther. 2021 Jun 9;13(1):110. PMID: 33791705; PMCID: PMC8010732. Not yet peer-reviewed, preprint per website. https://alzres.biomedcentral.com/articles/10.1186/s13195-021-00850-3

Citation format varies with source including online publications.