Alcohol and the Elderly: The Potential for Undue Influence While Under the Influence

Introduction
Most elderly people are not abusing the kinds of recreational drugs that will become more familiar to physicians as the baby boomers reach retirement age and beyond. Other than possible dependence on and addiction to prescription medications such as pain killers and sleeping medications, elders who have a ‘drug’ problem are usually battling with alcohol – and, silently, for that matter; one of the core features of the disease of alcoholism is the degree of denial that accompanies usage.

It is not in the scope of this brief article to review the definitions and causes of alcoholism. My own general rule as a clinician is that if family members are concerned about how much an elder drinks, and if socializing, driving, personal care or handling one’s finances have been compromised by drinking, there is a good chance that an elder has a drinking problem. The miseries of alcoholism have been well documented, and they include legal problems: while a physician may be concerned with whether an alcoholic patient is eating enough to offset nutritional deficiencies that accompany the disease, and a rehab counselor would be concerned with treating the underlying depression and anxiety that are mollified by alcohol abuse, a probate and estate attorney should be concerned about the alcoholic individual’s capacity to engage in estate planning.

Mental Functions Affected by Chronic Alcohol Use
The degree of neurotoxicity and accompanying cognitive changes that are caused by chronic alcohol abuse are dependent on many factors. An estate planning attorney who has concerns about an individual’s capacity to engage in estate planning should consider encouraging a neuropsychological evaluation before making any permanent judgments, and before deciding whether to proceed with representation. Below are some of the most frequent mental function deficits, however, that are affected by alcoholics.

Impaired Powers of Planning.
Alcohol is most toxic to the frontal lobes, which translates into damage to powers of planning and anticipation. Deficits in planning affect not only how to distribute one’s assets, but also how to budget one’s weekly income, and even more short-term planning, such as what to have for dinner. Such deficits undermine information processing capacities outlined in Probate Code 811, specifically, 2F, the ability to “plan, organize, and carry out actions in one’s own rational self-interest.” Another frontal skill affected is working memory, which allows for the individual to manipulate information conceptually and abstractly in order to solve problems. Such impairments may undermine criterion 2E (reason using abstract concepts) and 2G (reason logically).

Deficits in Judgment.
Judgment, also a frontal based skill, is almost always affected by alcohol abuse. Impaired judgment may appear as impulsivity, whereby clients appear not to have the patience or ability to examine all the possibilities in an estate plan before reaching closure on one approach. Another manifestation of impaired judgment is found in the loss of mental flexibility that is common to many alcoholics. When diminished mental flexibility is combined with a decreased ability at complex problem solving, making informed decisions becomes more difficult. It is characteristic of the disease that a person’s ability to consider the consequences of his or her actions is compromised. Adult children of alcoholics have written volumes of literature describing their parents’ inability to consider how their actions affect others. The ability to understand consequences is required under Probate Code §812(b). Thus, the estate planning attorney who represents an alcoholic client should be able to assess the client’s ability to grasp the consequences of his or her decisions, as well as the client’s ability to weigh the risks, benefits and alternatives involved in the decision.

Memory Problems.
Memory deficits are common but not universal (Probate Code §812(a). Chronic alcoholics often sustain short term memory and learning deficits that become more evident as task complexity increases. Thus, an alcoholic may understand the estate plan initially but as a trust becomes more complex, they may become confused. In very severe cases, when there are vitamin B12 deficiencies, individuals may develop a condition known as Korsakoff’s syndrome, characterized by gross memory problems. If it remains untreated, confusion, comprehension difficulties and inability to sustain and hold onto anything but that which has occurred within the last 2 – 3 minutes often occurs. In addition, the client also experiences a decline in remote memory, known as retrograde amnesia. For example, a client visited by the author in her home, the day after her birthday, was asked when she last saw her son. From caretakers’ notes, the author knew the son had come on the client’s birthday, and brought a cake, some part of which was in the refrigerator. The client replied with anger, “He hasn’t visited me in over a year.”

Susceptibility to Undue Influence.
Finally, individuals with a drinking problem are very vulnerable to undue influence. The more severe the alcoholism, the more immediate is their physical craving for alcohol, and whoever supplies it may invite dependence by the elder. Family members and close family friends, unfortunately, are often in a good position to influence older, alcoholic family members, who will later have no memory of having signed a document while inebriated. In most cases involving undue influence there is a relative/friend who is isolating the elder. In cases of alcoholism, it is often the elder themselves who choose isolation so as to further continue the drinking. If retrograde amnesia is dense enough, a trust can be changed even without the elder being inebriated, and they will not remember having signed the documents.

Case Study
Mrs. R. was widowed. She had been married three times. In the five years since the death of her last husband, Mrs. R. had created two different trusts with very different designations as to whom she nominated as her successor trustee and the beneficiaries of her trust. In the last trust, she nominated her daughter as trustee, and gave her general power of attorney as well as health care power of attorney.

Mrs. R. had a drinking problem, which spanned a 20-plus year period. She had lost her drivers license due to a DUI, and her neighbors refused to buy her alcohol. Her daughter also refused. Mrs. R. elected to move into an assisted living facility in which she knew two other women from her church. Her daughter helped her move. For the first month, Mrs. R. said she like it there, but, after that, she insisted that her daughter forced her to move from her home, and she wanted to return to it. The administrators of the facility did not object to this change of mind, as Mrs. R. would get so confused as to how to get to the dining room, a special aide had to be hired just to escort her there. Furthermore, her memory loss was so severe that she could not remember if she had eaten, and would insist on being taken back to the dining room for another meal.

Upon returning home, Mrs. R. accused her daughter of spending her money on the assisted living facility against Mrs. R’s wishes. Mrs. R sued her for paying for the care from her funds. Mrs. R. now wanted her daughter off her accounts, and intended to change the general power of attorney. She now wanted to appoint her two nephews, who were calling her every day, and bringing her groceries twice a week, as well as alcohol. The daughter was alerted to the suit when she received a notice from the attorney whom Mrs. R. had retained to represent her. Yet when her daughter called Mrs. R., Mrs. R. could not remember ever seeing an attorney, and when shown the papers did not recognize the name of the attorney. It appeared that it was the nephews who had brought Mrs. R. to the attorney. Mrs. R. was now saying that she wanted her daughter off the trust as the successor trustee, and wanted these two nephews to hare the role of successor trustee. Furthermore, she wanted to leave her biggest asset, her house, to these nephews as well.

The daughter sought temporary conservatorship for both person and estate. Mrs. R. was evaluated both by the court investigator and agreed to a full neuropsychological evaluation. Both examiners independently of each other, and through the use of very different methods, concluded that Mrs. R. lacked capacity to manage her personal and financial affairs. The neuropsychologist administered a competency test consisting of twelve different areas intended to assess mental functions relevant to capacity. The summary score of the test indicated that Mrs. R. was in the ‘mostly dependent range of functioning.’ The neuropsychologist stated that because of her dependency on others, a volatile personality, poor ability to monitor her own needs, and impaired cognitive functions resulting in inability to problem solve, manage her own checkbook or track her own accounts, she was highly vulnerable to undue influence.