Dementia can be devastating when informed decisions need to be made.

Why should attorneys learn about Dementia?

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.

Legal matters rest on decision-making. Whether the case is probate litigation or fraud, a decision-maker’s competency and lucidity can be at issue.

A person with Dementia could be at risk to be manipulated in a case of undue influence. A Will contest almost always centers on testamentary capacity (will or revocable trust.) The victim of a scam, might be vulnerable if they have Alzheimer’s. Proving the presence or absence of Dementia and other cognitive defects might shift the pivot of a case or direction towards settlement or trial.

In a legal matter, a Dementia diagnosis can be a pivotal point.

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 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.

Signs and Symptoms

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

• 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, from bathing to paying bills.
Fig. 1 ^[5]

Causes

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 exam with a history and physical along with a 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.

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.

Testamentary Capacity

Assessing Competency to Sign a Will

Those with Dementia may not be able to understand the prerequisite elements of a will.^[9]

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.

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.

Fraud

Scams can seek to exploit diminished cognitive capacity in the elderly. Above I identify 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 it is possible dementia is 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 Expert Witness About Dementia