Estate Planning

Dr. Vivian Clayton PhD., is a geriatric neuropsychologist at Rossmoor Medical Center, Walnut Creek, CA. She is a co-author on Cal CEB Action Guide: Capacity and Undue Influence: Assessing, Challenging and Defending, Winter 2001. Her e-mail address is miel@ix.netcom.com

Introduction
On November 11th, 2002, the New York Times ran an article on its front page entitled, "More than Death, Fearing a Muddled Mind." It highlighted several middle-aged children whose parents had developed dementia. These individuals were beginning to notice the earliest and most benign of age related changes in memory in themselves - namely, the difficulty in recalling someone’s name - and they were concerned it might be the start of a dementia such as Alzheimers. The main purpose of this article is to introduce what is normal with regard to memory changes and what is more likely to be a sign of something more serious, representing possible underlying neurological disease. The secondary purpose of this article is to help the attorney observe and assess early signs of dementia during a client interview.

Normal Age-Related Cognitive Changes
Retrieving information from memory
The most normal - and obvious – age-related change is the difficulty experienced in retrieving information from memory. This change starts to occur after the age of twenty-five. No matter how short or long, simple or complex the material, it takes longer to recall information, especially under high stress conditions. The encoding process suffers a bit as well with age. The brain is less efficient in absorbing all the incoming information in its entirety the first time around, which is why review and repetition are beneficial to all individuals who must read documents and process volumes of data.

Slowing of mental functions
Another normal age-related change is the slowing down of all mental functions, whether they are intellectual or motor. It takes longer to do everything as we get older - whether preparing breakfast, running for exercise, or reading a report. That’s because the central nervous system slows with age and it controls all these functions. When an elderly person is reading a document, or, when the contents of a document are being explained to them at a normal conversational pace, it is likely that they will not completely follow everything being said or being read the first time around. This is both due to encoding deficiencies, as well as speed of processing information. And, never underestimate the power of hearing loss with age. Men, more than woman, shy away from acknowledging it or wearing hearing aides. A client often acts like he or she understands what you are saying, but if they ask a question out of context, or an unexpected question is asked in context, this may reveal hearing difficulties.

Personality and character traits – more pronounced with age
Personality and character traits do not change with age. An individual ages in character. If a person was an altruistic sort when young, he or she will be like that in older age, only more so; if the individual was introverted and quiet when young, this trait persists and becomes more exaggerated with age. It is always important, therefore, to ask if the person has always been similarly predisposed, or whether this behavior represents a change. The ability to ask this question depends on context, comfort with the client and related family members, and the business objective with the client in the first place. A major shift in character traits is often a sign of neurological disease

Detection of Abnormalities
Structuring a client interview
Many of the cognitive deficits related to susceptibility to undue influence as well as management of an estate, will not emerge unless part of the client interview remains unstructured allowing the client to reveal his or her true nature. One must have the chance to observe HOW the client goes about structuring a part of the meeting. In my opinion, the best time for this to happen is in the first fifteen minutes of a meeting, when introductions are completed, and light social conversation ensues.

What to look for?
In conversation:
Observe whether the person is repetitive, as if they are not tracking what they have just told you five minutes earlier. Is the person tangential in conversation, i.e., never making or reaching a point, but rather being led from one topic into the other until the original thought is completely lost or obscure? If you respond to a thought or comment, does the client’s response relate to what has just been said? Is the client unable to provide a reasonable structure to this unstructured period, such that they are passive and somewhat indifferent? When asked a question that focuses more on dates or quantitative information, do they divert your attention by telling a joke? Though the joke might be very funny, when you think about it afterwards, it is clear that you were not able to obtain that information from them. Or, do they say that their spouse or adult child knows the answer, and they defer to these individuals?

In appearance:
Another observation to make is the manner in which they walk into your office. If they walk unassisted (without cane or walker), do they shuffle? Do they slant a bit to one side, or need to hold onto someone’s arm? Are there signs of personal neglect? How do their clothes look? Are there food stains? Are their buttons unbuttoned, or buttoned out of sequence? Do their nails look untended, uncut or dirty? If they have a slight bruise, and you ask them if they’ve fallen, do they respond in an overly concrete way? For example, I recently asked a man where did he fall, and he immediately replied, "on the floor". We had, however, just finished discussing how he lived alone, and how it would be a good idea to have Life Line (a device elderly people can wear around their necks to alert a call station that they are in trouble). His response did not reflect the context in which I had asked my question.

In understanding legal documentation:
Attention to the same details still apply when you are ready to switch to the more focused part of the interview. You may already feel comfortable that the client understands the nature and purpose of the estate plan, the consequences of their choices and decisions. If you ask a question, however, and they answer with information that is unrelated, it is wise to consider whether you are merely observing age normative hearing loss or a more irreversible loss of comprehension and processing of complex information. If you must repeat a question several times because the client is not grasping the details, it is fair to consider whether they are distracted or depressed. An estate planner familiar with this writer always sends out a questionnaire requesting certain basic information from prospective clients. A sure red flag for her is if a client writes the wrong year. Though most retired people say they don’t know if it’s a Wednesday or Thursday, and this is considered a benign sign, it is important that they get the year and month correct

Though many women are more familiar with listing the names and birth dates of their children, omissions might signify more serious long-term memory problems. By the time an organic disease affects long-term memory, capacity to make even a simple will is at question, as it is unlikely that the individual will be able to remember all their financial holdings. It is important to observe whether they rely on you exclusively to tell them what is in documents, or whether they attempt to read them themselves. If they struggle with this task, and complain that they haven’t had their glasses checked in a long time, this could be a sign of cognitive dysfunction. (One client of mine casually commented that he didn’t need duplicates of anything - his eyesight created duplicates every time he tried to read. This was a sign of a neurological condition called diplopia, sometimes occurring after a stroke.)

In recall of previous meetings:
Most estate planning attorneys see the client several times before a final document is signed. Though normal memory changes affect encoding and retrieval of information, people retain information that is meaningful to them. Rest assured that a visit to an attorney is a meaningful event. Does the client recall the essence - and the important details - of the previous visit with you? How much do you have to review before you find yourself wondering if they are having serious memory loss?

Dependency on others:
One of the insidious changes that occur with neurological disease is an increasing dependency on others for assistance. Sometimes during the initial interview with a client, I actually have to turn the caretaker’s chair in such a way that they cannot see each other, because the client is continually asking the caretaker for the answers to questions. If it’s just normal age -related retrieval problems, the client should be able to demonstrate good compensation strategies. They might have taken notes of the previous visit and so pull them out of their pocket to review. They may not recall their medications, but they have them written down and can produce them at the appropriate moment.

The Final Question
In psychology, we are taught that often the most important information about the patient is gleaned either in the very beginning of the interview, or at the very end, as the patient is walking out the door. One of the most diagnostically useful questions I’ve developed in my practice, as the patient is getting ready to leave, is as follows, "Is there anything that you think I should know about you that hasn’t been touched upon during our interview today?" Years ago, when my daughter was a toddler and I was interviewing potential baby sitters, after a long forty-five minute interview with a very promising candidate, I asked this question as she was walking out of my house. She replied, "Oh, yes, I have had several black outs in the last few months that the doctor thinks are due to small seizures."

How you translate this final question to conclude your meeting with the client is an individual matter and certainly must in some way blend into the context of the interaction. However, it should be asked if there is information you feel hasn’t been extracted by your usual procedures, and you have inferred from the client’s behavior that there is more to the picture than he or she has been able to convey directly.

FEATURED BOOK

Action Guide: Capacity and Undue Influence: Assessing, Challenging and Defending
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