Tuesday, September 27, 2011

Diminished capacity when a relationship is breaking up

Q: Here is another question I got by email, with details changed:
I have a client (call him Joe) who has an unmarried partner (call her Abigail) with diminishing capacity due to encephalitis, secondary to liver disease. Abigail's capacity has diminished to such a point that Joe no longer feels he has a romantic partner, and he wants to dissolve their relationship and have her move out, possibly to a skilled nursing facility. He works full time and can't take care of her to the extent he thinks she needs now, although he has been helping take her to doctor's appointments and meet with specialists about her condition. Abigail doesn't want to move out, and may not be in good shape to make her own decisions about housing, finances, or medical care, nor to care for herself. Abigail has disability and Medicare. Joe would like her to have an evaluation of capacity, but doesn't know how to suggest it. Any ideas?


A: I am not sure of the exact cause of encephalitis, but it sounds as if this is not a condition that is going to get better without curing the liver disease, and possibly not even then. Instead, it sounds like she is getting worse. Basic ethics: Obviously, you know that Abigail needs a guardian who can look out for her best interests. Psychologically, it will be almost impossible for Joe, since he wants to end their romantic involvement, to be able to make an objective judgment of what is best for Abigail.


The first step to getting Abigail a guardian or temporary guardian would be to determine whether or not she can make her own decisions. I would suggest that the easiest approach would be that the next time Joe takes Abigail to her doctor, he should just ask for a capacity evaluation by a neuropsychologist, specifically to determine whether Abigail can manage what are called "instrumental activities of daily living": shopping and planning meals, managing finances, maintaining a home safely, knowing what to do in an emergency at home, preparing food, taking care of her own health, personal care, and medications. It sounds from Joe as if Abigail cannot do these things, but that is for a professional to determine. Joe will probably be an important source of information, since he's been living with her, but the neuropsychologist will also do some testing with Abigail, independent of Joe. I am surprised that no one has already done this for her if she has encephalitis. Joe needs to ask for it. Medicare will pay, though the neuropsychologist may have to bill it under a mental health code, rather than a medical code.


It might be helpful for Joe to write out some things that the capacity evaluation should address: Here are my suggestions:
How much can Abigail understand about how she gets her financial support?
Can she interpret a bank statement, and can she list her various bank accounts?
How much can Abigail understand about her own medical condition?
How much is Abigail able to understand the various housing options and health care options that are available to her?
How able is Abigail to fill out forms for Medicare, or forms to apply for other benefits?
Can Abigail understand and remember which medications she has to take?
Does she remember to take her medications?
Can Abigail describe the steps she would have to take to prepare a meal, including shopping?
Does Abigail drive? Has her driving been evaluated by a specialist?
Is Abigail able to understand that her romantic relationship with Joe is over?
Does Abigail always remember to turn off the stove?
Does she know what to do if something on the stove catches fire?
Could she handle an emergency, such as a fire, at home if she was by herself?
Until you start to break it down, you don't realize how many aspects of daily living require mental capacity and problem-solving. The courts won't need to know what Abigail scored on a neuropsych test as much as they will need to know how her performance in testing relates to these critical self-care abilities.


If Abigail really is incapacitated mentally and cannot take care of herself, then she needs someone to make important decisions for her. A guardian obviously cannot force Joe to continue to provide housing for Abigail if he doesn't want to, but if she can't make her own decisions about housing, then someone else, whose job it is to look out for Abigail, should be making those decisions to get her into a housing situation with home health care or a skilled nursing facility that can take care of her.


It sounds like a heart-wrenching and difficult situation, and Joe must feel terribly guilty. Please reassure him that he really cannot continue to make decisions for Abigail, and that he can best serve her by getting her the evaluation she needs, and then help start the process to get her an objective decision-maker who can help her.

Wednesday, June 22, 2011

What happens when a spouse is in denial about losing capacity?

Here was a question an attorney called with. Let's call this couple Mr. and Mrs. Smith. Mrs. Smith contacted the attorney because she was concerned about all of the couple's money being lost through the husband's bad business deals. The husband had started a small business, funded out of the couple's joint account. For a couple of years, the husband had been forgetting more, and making very bad decisions, and the business was bleeding money. The husband denied that the business was losing money, but the wife could see the books, and knew what the facts were. Wanting to protect their financial assets for the rest of their retirement, she went to the attorney, who suggested that the husband needed a medical or psychological evaluation to determine his decision-making capacity. Since the husband became very angry whenever the wife suggested there were problems, the wife did not believe her husband would consent to having an evaluation. The attorney called me to ask if I had any recommendations in this situation.

First of all, some facts about Alzheimer's: the very circuits in the brain that allow us to be self-aware are often affected by the disease. Denial of problems isn't just the person being stubborn, it's a real symptom of ALzheimer's. On top of that, the individual with Alzheimer's is often frightened by the changes taking place, and the anger that comes out in response to family members' saying something is wrong sometimes comes from this fear. Imagine that you couldn't remember things, and didn't realize that you couldn't remember - the world would suddenly seem like a bewildering and frightening place. It's easy to understand someone being edgy and defensive in such a situation.

It is also possible the husband doesn't have Alzheimer's, but some other condition. One much less common type of dementia* is called "frontotemporal dementia," because the frontal lobes and temporal lobes begin to atrophy in this disease. Memory is generally fine until very late in the disease, but the person has problems with social judgment, motivation, empathy, and self-awareness. So frontotemporal dementia also means the person will be in denial, not out of stubbornness, but because the brain circuitry for self-awareness has been damaged by the disease. Since poor judgment in interpersonal situations is a key symptom of frontotemporal dementia, making bad decisions about finances is not uncommon with this disease.

As to what to recommend in this case, it's a very difficult situation. One possibility would be for the wife to initiate guardianship or conservatorship proceedings, and request the court to intervene. In this case, the wife was not willing to do that -- it was too adversarial, and she thought it might ruin what there was of their marriage. My suggestion in terms of getting the husband for an evaluation was this: Perhaps the wife could go to the husband and be an ally to him, saying, "Look, how about going to get an evaluation to prove once and for all that everything's fine with you. So when creditors for the business start asking questions, or anyone asks about your ability to be independent, we can say, no, look, we've had it tested, and it's all fine." I'll be honest, I didn't think this had a high chance of success, but it was clear that the more confrontational approach of telling the husband he was having problems and asking him to go get an evaluation had a 0% chance of success.

An elder law attorney I talked to in general terms about the case also suggested that the wife could move some money from their joint account to her own personal account to protect some of their nest egg.

I wish that there were easy answers in situations like this, but unfortunately, there are not.

* dementia = any progressive neurological disorder that has been present for more than 6 months, and has caused a gradual loss of functioning from a previously higher level. Listen to the podcast on "Those Grey Areas" at www.AboutCompetency.com for more detailed information.

Wednesday, May 25, 2011

Welcome to the Competency & Capacity Q&A!

No one wants to see their clients taken advantage of, or financially abused by others. Elder law attorneys work to protect their clients' rights and assets. We offer information from the latest brain research to help in these difficult cases, so that vulnerable adults can be protected.

Just because someone has a diagnosis of a neurological or mental health condition does NOT mean that they lack the ability to make their own decisions. Autonomy and protection must be balanced. Many brain-based conditions can affect decision-making capacity: Alzheimer's, frontotemporal dementia, vascular dementia, traumatic brain injury, more severe autism spectrum disorders, and other developmental disabilities. However, deciding at what point a client really is having serious enough trouble that he/she no longer has testamentary capacity, contractual capacity, donative capacity, or decisional capacity is tricky ground.

Here, we answer attorneys' and judges' questions about how the latest science on assessing capacity might affect your case. Here in this monthly Brain Science & the Law Q&A, we give specific information to legal professionals who need it, each 3rd Tues 11 am-12.

Ask a question by posting a comment here. (Please anonymize client info in your posts, changing name, gender, identifying details.) For questions that get emailed to me (vestone@gmail.com), I will post and answer as many of them here as I can.