Elder Law

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Understanding the Intentions of a Client with a Communications Disorder:   A Technique for Estate Planning

Dr. Vivian Clayton, PhD is a geriatric neuropsychologist in private practice in Orinda, California. She is co-author on the CEB Action Guide Capacity and Undue Influence: Assessing, Challenging, and Defending.
E-mail: vivianclaytonphd@ix.netcom.com

Introduction
The Non-Communicative Client
Procedural Memory Triggered
Case Illustration


Introduction
The purpose of this article is to introduce a technique for use in estate planning that relies on perceptual motor skills to recall personal information relevant to establishing testamentary capacity in older adults suffering from various mental function deficits. The use of this technique bypasses dependence on language as the main tool for communication, and is particularly helpful with aphasic clients. This technique can be used in conjunction with the more traditional methods for determining an individual’s dispositive wishes. The method is not limited to identifying heirs alone; it can also be used to identify and specify dispositive wishes for tangible and intangible aspects of the estate.

The Non-Communicative Client
Oliver Sacks, a world renowned neurologist published a book in 1970 entitled “ The Man Who Mistook His Wife for a Hat.”  Breaking traditional boundaries of medical journaling, he publicized the intriguing but obscure phenomenon of an individual who substituted one thing (identification of his wife) for another (a hat). The condition, known as visual agnosia, was due to a degenerative disease. In age-related conditions, such as Alzheimer’s, it is not uncommon for an afflicted person to repeat the same name over and over, and one might assume that they are referring to that named individual, when, in fact, they might be referring to someone else. This behavior is called perseveration. 

Following a stroke or as a result of dementia, people often don’t exactly mean what they say, and can say what they don’t really mean. At minimum, this can result in embarrassment and social withdrawal. In estate planning situations, particularly with regard to identifying one’s heirs and specifying one’s dispositive wishes, these communication disorders can become a problem.  In some cases, because of severe deficits in communication, the individual can be perceived as lacking in competency to create an estate plan.

Procedural Memory Triggered
This new technique relies on visual processing and motor skills in getting responses to questions. The objects that are manipulated are known as “memo clips,” and can be bought at most stationery stores. They have a hand cast resin base that comes in different colors; a cable is inserted vertically into the base, with an alligator clip at the top, to which either pictures or names of family members can be attached. One can think of these objects as pieces one moves around in a game of chess, or Monopoly. Rather than calling on episodic memory (the memory for personal information), this technique, by using motor skills, relies on procedural memory, which is a more primitive memory system. It is unaffected in early to middle stage dementias, or amnesic conditions. It is this memory system that one draws upon when learning to ride a bicycle or drive a car. It is why individuals with early Alzheimer’s type dementia can, in fact, still ride a bicycle, play golf, and continue to drive a car. Knowledge is displayed in action, not words. These memo clips also allow for the introduction of color as another way to draw the client’s attention to different generations within their family. In this process, ideas can be grasped without conceptual understanding.

Case Illustration
In question was whether a 96 year old woman with long standing and progressive dementia had the mental capacity to amend her trust. In reviewing the estate planning documents, her lawyer discovered that the wording in her trust was such that it left open to interpretation who would inherit her estate — that her beneficiaries could include not only her five living children, but her 18 grandchildren, as well. The lawyer knew, from early discussions with the client, that she only intended her estate to be passed on to her adult children. However, disputes within the family prompted concern that after the woman’s death, there could be a challenge to her trust, based on the lack of clarity on this particular issue. The client had significant word finding problems and often did not seem to understand questions asked of her that required problem solving or conceptual understanding.

A pyramid was created with these memo clips. The client was at the apex, her name attached to the alligator clip at top, in a color matching the resin base (white). Then, underneath her clip, the names of the five children were displayed, each with their own memo clip, all in the same color, but different from the client’s (yellow). Finally, underneath each adult child’s name, were grouped their children. Each child had his/her own memo clip and were coded in green. The client was asked to identify each level in the pyramid. She was able to do so without hesitation. “These are my children (pointing to the yellow based clips)”; “These are my grandchildren (pointing to the green based clips)”. The client was then asked, “When you die, how do you want your estate distributed?” She responded immediately, and with emphasis, “Just the children.” She was asked to point out who were her children. She pointed to each of the yellow based memo clips. She was then asked, “Do you want your grandchildren to receive anything?” “The children will take care of the grandchildren,” she replied.

Just to increase the examiner’s certainty of her responses, this client was then shown a two dimensional pyramid, with each generation coded in a different color. Again, the client immediately grasped the separation of generations created by the different colors. The question was asked again, “When you die, how do you want your estate distributed?” The client ran her hand along the line in the pyramid on which her children’s names were written.

 

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