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Assessing Cognitive The following relationships exist related to this presentation: Impairment in the Elderly ►Edwin J. Olsen, MD, JD, MBA: No financial relationships to disclose. SPEAKER Edwin J. Olsen, MD, JD, MBA Off-Label/Investigational Discussion ►In accordance with pmiCME policy, faculty have been asked to disclose discussion of unlabeled or unapproved use(s) of drugs or devices during the course of their presentations.

Assessing Cognitive Impairment/Capacity Outline in the Elderly 1. General Concepts Edwin J. Olsen, MD, JD, MBA 2. Issues in Primary Care 3. DSM V—Neurocognitive Disorders • University of Miami, Miller School of Medicine 4. Evaluations Department of Psychiatry ([email protected]) 5. • President, The Florida Veterans’ Medical & Legal Center, 6. Medical Professions Role Inc. 7. Physician Capacity • Co‐Director Miami VA Healthcare System, Medical/Legal 8. Driving Capacity Clinic 9. Permanency Planning • Veterans Advocacy Project Attorney, Florida International 10. Contested Wills University College of

General Legal Terms Capacity vs Competency

• Testamentary competency: legal concept of being capable of executing a will • Usually Ask: “Is this person Competent?” • Competency: legal definition defined by a • Should ask: “Does this person have the judge capacity to………….(specify) • Capacity: medical determination made by a • Competence is determined by a Judge doctor indicating that an individual • However, used interchangeably. understands relevant facts and appreciates potential out‐comes Civil Capacities Issues in Primary Care

1. To handle funds‐‐Fiduciary (VA Compensation • Identify early dementia—Mild Cognitive & Pensions— “Incompetent for VA Purposes”) Impairment (MCI); Depression 2. To make a will (Testamentary) • Interview and History: How patient presents 3. To Drive • Testing: Folstein Mini Mental Status; MoCA; 4. To consent to treatment (Informed Consent) MiniCog; Stroop Test; Telephone Interview for 5. To be married/divorced Cognitive Status(TICS) 6. To make a 7. Physician Capacity

National Institute on Aging Cognitive Clinical Issues DSM‐5 Instruments • Neurocognitive disorders—Dementia, • 116 Instruments to Detect Cognitive Delirium, Amnestic, and Other Cognitive Disorders) Mild & Major Impairment in Older Adults • Domains Assessed • Dementia Subtypes: Alzheimer’s, vascular, • Time Lewy bodies, Parkinson's, Frontotemporal, • Cost TBI, HIV, substance/medication, Huntington's, • www.nia.gov/research/cognitive‐ Prion disease, Other medical condition, Multiple etiologies, Unspecified. instruments/search

Mild Neurocognitive Disorder DSM V Mild Neurocognitive Disorder DSM V

• A. of modest cognitive decline from and 2. Modest impairment in cognitive a previous level of performance in one or performance, preferably documented by more cognitive domains (complex attention, standardized neuropsychological testing, or in its executive function, learning and memory, absence, another quantified clinical assessment language, perceptual motor, or social B. Cognitive deficits do not interfere with cognition based on: capacity for independence in everyday activities. • 1. Concern of the individual, a knowledgeable C. Not exclusively in delirium informant, or the clinician that there has been D. Not explained by another Mental disorder (eg a mild decline in cognitive function: Major Depression, Schizophrenia) Due to Mild Alzheimer’s Due to Mild Alzheimer’s

• A. Criteria are met for Mild NCD • Possible—no evidence of causative genetics • B. There is insidious onset and gradual • All 3 of following: 1. Clear evidence of decline progression of impairment in one or more in memory and learning. 2. Steadily cognitive domains progressive, gradual decline in cognition, • C. Criteria: Probable‐‐causative genetic without extended plateaus. 3. No evidence of mutation from genetic testing or family mixed etiology (absence of other history; neurodegenerative NCDs or CVA disease contributing to cognitive decline)

Due to Mild Alzheimer’s Due to Mild Alzheimer’s

• D. Disturbance is not better explained by CVA, • Alzheimer’s: impairment in memory and another neurodegenerative disease, the learning, sometimes deficits in executive effects of substance abuse, or another mental, function. Depression and/or apathy often neurological, or systemic disorder. seen • Culture‐Related—memory loss is considered normal in old age; face fewer cognitive demands in everyday life, or where very low educational levels pose greater challenges to objective cognitive assessment

Major Depressive Disorder Depression Screens

• Signs and Symptoms: 2 weeks period‐ • US Preventive Services Task Force (USPSTF) SIG:ECAPS (Suicide, Interest, Guilt, Energy, • January 28, JAMA—primary care practitioners Concentration, Appetite, Psychomotor, Sex) offer screening for all patients • Often difficult to separate from early • Patient Health Questionnaire (PHQ 2, PHQ9) dementia—Interview: Depression “I don’t • Hospital Anxiety & Depression Scales know” or won’t try; Dementia gives an • answer, although may not be correct. Geriatric Depression Scale Subtle Early Signs of Cognitive Subtle Early Signs of Cognitive Impairment Impairment • Shopping Sprees • Back Pain • Drinking Heavily • Risky Sexual Behavior • Forgetfulness • Exaggerated emotions • Excessive Internet Use • Problem Gambling • Binge eating and obesity • Smoking • Shop lifting • Not Taking Care of ones self

National Alzheimer’s Association: Mild Costs Cognitive Impairment (MCI) • Decline in cognition (concentration, communication, memory and orientation). May also impact the person’s ability to conduct daily • activities in such areas as dressing, bathing and NIH Supported study found US dementia care eating meals. costs as high as $215 Billion in 2010 • MCI is often thought of as the period between normal cognition and when Alzheimer’s disease develops. • Others consider it to be the actual early stages of Alzheimer's, although not everyone with MCI will develop Alzheimer’s.

Mild Cognitive Impairment (MCI) Mild Cognitive Impairment (MCI)

• Originally: Only area an individual could demonstrate • Alzheimer's Association and National Institutes of impairment was memory Aging recommended revised definition of MCI in • Allowed for problems in other cognitive areas, such as 2012 reasoning and judgment. However, the person had to continue functioning quite well in daily life; if activities • Allows for mild impairment in ADLs, in addition to of daily living were impacted, the diagnosis would then the cognitive challenges. While it gives more likely be dementia, or specifically, the early stages of flexibility and perhaps is more accurate, it also Alzheimer's disease. may result in some people who were already • More recently not fitting in evaluations of those who were diagnosed with MCI, since many people with MCI diagnosed as having Alzheimer’s or another did indeed demonstrate a functional impairment. dementia now fitting the criteria for MCI instead. Mild Cognitive Impairment (MCI) Mild Cognitive Impairment (MCI)

• Newly revised definition blurs the line • It’s estimated that about 20% of people over between MCI and Alzheimer’s, so some the age of 70 have MCI. researchers recommended that the term MCI • Cause unknown. Appears to have similar risk due to AD (Alzheimer’s disease) be used, factors to Alzheimer’s: age, education and unless it's clear that the MCI is related to such brain/body health factors as stroke, other potentially reversible causes diabetes, cholesterol, heart health and blood pressure.

Difference Between MCI and Normal Difference MCI vs Alzheimer’s Age‐Related Memory Changes • MCI is a general term for mild impairments in • Normal to experience some occasional memory thought processes and memory, whereas gaps, such as not being able to remember someone’s name or where keys were put down. • Alzheimer’s is a specific disease in which “Benign Senescent Forgetfulness” memory and functioning continue to decline • A periodic delay in being able to access over time. memories is also typical. • Not normal: the experience of additional concerns in the areas of language, judgment and problem‐solving, or when the memory loss is more than just occasional.

Treatment of MCI MCI References

• • There is no medication approved for Alzheimer’s Memory Center. Mild Cognitive Impairment. http://www.amcneurology.com/blog/2009/12/02/mild‐cognitive‐impairment‐mci/ treatment of MCI at this time. Some • Journal of Alzheimer’s Disease. Effects of Varying Diagnostic Criteria on Prevalence physicians do opt to prescribe donepezil of Mild Cognitive Impairment in a Community Based Sample. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3146555/ (Aricept) • Morris, J. Archives of Neurology. February 6, 2012. Revised Criteria for Mild Cognitive Impairment May Compromise the Diagnosis of Alzheimer Disease • Other physicians recommend general risk‐ Dementia. http://archneur.ama‐assn.org/cgi/content/full/archneurol.2011.3152 • reduction strategies similar to what is Neurology. Longitudinal pattern of regional brain volume change differentiates normal aging from MCI. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690968/ recommended for Alzheimer’s, including • NYU Langone Medical Center. Mild Cognitive Impairment. maintaining healthy eating habits, an active http://www.med.nyu.edu/adc/forpatients/cognitiveimpair.html#what • University of California, San Francisco. Mild Cognitive Impairment. brain and regular social interaction. http://memory.ucsf.edu/education/diseases/mci Evaluations Folstein Mini‐Mental Status Exam

• Folstein’s Mini Mental Status Exam (MMSE) • MMSE: used to assess mental status. It is an 11‐ • MoCA (Montreal Cognitive Assessment) question measure that tests five areas of cognitive function: orientation, registration, • Mini COG attention and calculation, recall, and language. • Stroop Test • Maximum score is 30. 23 or lower is indicative of • Telephone Interview for Cognitive Status cognitive impairment. The MMSE takes only 5‐10 (TICS) minutes to administer and is therefore practical to use repeatedly and routinely. • Not a diagnostic test

Montreal Cognitive Assessment MMSE Reference (MoCA) • Folstein, M., Folstein, S.E., McHugh, P.R . • Memory (1975). “Mini‐Mental State” a Practical • Executive Function Method for Grading the Cognitive State of • Language Function Patients for the Clinician. Journal of Psychiatric • Research, 12(3); 189‐198. Attention • • Patent Visual Context/Visual Spatial

MoCA Mini Mini‐Cog Test

• A short, 5‐minute version of MoCA test. • The Mini‐Cog test is a 3‐5 minute instrument Covers mostly memory and executive to screen for cognitive impairment in older functions. adults in the primary care setting. • Three‐item recall test for memory and a More information about our test will be simply scored clock‐drawing test (CDT). coming soon. • Reference Borson S. The mini‐cog: a cognitive “vitals signs” measure for dementia screening in multi‐lingual elderly Int J Geriatr Psychiatry 2000; 15(11):1021. Mini‐Cog Mini‐Cog Instructions

• Mini‐Cog was at least twice as fast as the 1. Instruct the patient to listen carefully and Mini‐Mental State Examination. repeat the following • The Mini‐Cog is less affected by subject APPLE WATCH PENNY ethnicity, language, and education. 2. Administer the Clock Drawing Test • Mini‐Cog detects many people with mild 3. Ask the patient to repeat the three words cognitive impairment (cognitive impairment given previously ______too mild to meet diagnostic criteria for ______dementia).

Clock Draw Scoring Mini‐Cog

• Inside the circle draw the hours of a clock as if • Scoring: 1 point for each recalled word • Score clock drawing as Normal (the patient places the a child would draw them. Place the hands of correct time and the clock appears grossly normal) or the clock to represent the time “forty five Abnormal Score minutes past ten o’clock” • 0‐‐ Positive for cognitive impairment (no words) • 1‐2 & Abnormal CDT‐‐ then Positive for cognitive impairment • 1‐2 & Normal CDT‐‐ then Negative for cognitive impairment • 3‐‐Negative screen for dementia (no need to score CDT)

Stroop Test Stroop Test

• Consists of colors that are written in words • Stroop test: dates back to the 1930’s and but in the wrong color ink. measures cognitive functioning. • The test‐taker has to be able to state the color • An effective measure of executive functioning, that the word is written in and be able to the ability to plan, apply knowledge and make ignore whatever the actual word is. If you see decisions and short term memory. the word “red” but it’s written in blue ink, the correct answer would be “blue”. Stroop Test Results Stroop Test

• How Accurate Is the Stroop Test in Identifying • Older adults who do not have any cognitive Mild Cognitive Impairment or Alzheimer’s? impairment have, on average, a slower response time than younger and middle‐age adults, but • In one study conducted by Hutchison, Balota they typically answer the questions correctly. and Duchek in 2010, variations of the Stroop • People with mild cognitive impairment, will be Test were better than 18 other typical slower in answering but also have a significantly cognitive tests at differentiating between higher rate of incorrect answers because of their healthy older adults and those with early decline in processing information and the Alzheimer’s. inability to ignore one stimulus (the word) while focusing on the one (the color).

Telephone Interview for Cognitive Status (TICS) TICS

• I am going to ask you some questions to test Item Item response Scoring criteria Max score Item score your memory. Some of these are likely to be 1. Please tell me your full name. 1 point for correct first 2 name (or nickname) easy for you, but some may be difficult. Please (Do not document the response; and 1 point for correct just mark correct or incorrect for bear with me and try to answer all the questions last name as best you can. If you can’t answer a question, each) don’t worry. Just try your best. Are you ready? 2. What is today’s date? Probe for 1 point each for 5 These instructions may be repeated verbatim or month, date, year, day of week, and season precisely correct month, date, year, day if not provided spontaneously (e.g., What paraphrased, if necessary. For each of the TICS of the week, and day of the week is it? or What season items, except Item 5 and Item 8, single season (e.g., a hot day is it?) repetitions are permitted. in early June is not summer)

Testamentary Capacity Testamentary Capacity

• Approximately 13% of all wills will be • Legal term of art used to describe a person’s legal challenged, with about 1% being found invalid and mental ability to make or alter a valid will. • Estimated that $41 trillion of wealth • Adults are presumed to have the ability to make a transferred before 2050 will • 2002 study found only 7% of doctors could • Challenger must meet the burden of proof that answer basic questions regarding TC. did not possess the capacity (mental) • Shifts burden and must show clear & convincing evidence that did have requisite capacity Testamentary General Legal Terms Legal Terms (cont)

• Testamentary competency: legal concept of • : amendment to an existing will being capable of executing a will • Testator (Testatrix):person who makes will • Competency: legal definition defined by a • : handwritten will judge • State law of : when no valid will • Capacity: medical determination made by a exists ( Court—Individual state doctor indicating that an individual define) understands relevant facts and appreciates potential out‐comes

Testamentary Capacity Lord Cockburn Criteria

• Even when Testator found to lack capacity due to • 1870—case of Banks v. Goodfellow—5 basic dementia, courts will sometimes rule that the requirement still basis of most laws testator had a “temporary period of lucidity” or a “lucid moment” at the time of the execution of • 1. Understand the nature of the act going to the will and will validate it. sign (what a will is; making a will) • Dead Man’s Act: provides that any person • 2. Appreciate the effects (distribution) interested in the outcome of the litigation is incompetent to testify in their own behalf • 3. Know the extent of bounty (property) concerning any conversation or event that took • 4. Know their natural heirs place with or in the presence of the testator. • 5. No insane delusion shall effect will

Will Challenges

1. Dramatic or “radical” change from a previous • Relationship where there is a power will or inconsistently expressed wishes of imbalance or a dependency, used to influence testator (72%) (coercion, compulsion, deception) 2. Alleged Undue Influence (56%) • Definition varies from state to state 3. Characteristics: Dementia (40%), Alcohol • Exerted by: family members, “friends”, abuse (28%), Other Neurological/psychiatric professionals (lawyers, accountants, conditions (28%) physicians, spiritual leaders) and caretakers Simple v Undue Influence Undue Influence

• Objectors must show heirs had Opportunity • Undue implies outside, with intent of unfairly and Disposition to unduly influence a benefiting person who exercises influence Susceptible testator to obtain Coveted results • Usually province of Psychiatrist (documents, witness reports) renders opinion postmortem

Maryland State Code 8‐801 Difficult to Prove Exploitation of Vulnerable Adults • Evidence of harassment/pressure, threats of • (i) “Undue Influence” means domination and abandonment, or intentional lies that result in influence amounting to force and coercion negative feelings to heirs. exercised by another person to such an extent • Rarely: Overvalued friendships, increased that a vulnerable adult was prevented from attention, rendering of services, or insincere exercising free judgment and choice. or excessive praise or flattery • (ii) “Undue Influence” does not include the normal influence that one member of a family has over another member of the family

Warning Signs for Undue Influence Warning Signs for Undue Influence

• 1. Elderly person’s actions inconsistent with • 4. Caretaker dismisses previous professionals past longstanding values/beliefs and directs older person to new ones • 2. Older person making sudden changes in • 5. Elderly person isolated from family, friends, financial management that enrich one community and other stable relationships individual • • 3. Elderly person suddenly changes will or 6. Nonfamily caretaker moves into the home disposition of assets and directs to one or takes control of daily schedule individual who is not a natural “object of their • 7. Wills, living wills, or trusts altered with new bounty” caretaker or friend as beneficiary/executor Warning Signs for Undue Influence Warning Signs for Undue Influence

• 8. Older person directs income flow to • 11. Power imbalance‐caretaker assuming caretaker (SS benefits, Pensions, Trusts) restrictive control and dominance • 9. Elderly person develops mistrust of family • 12. Caretaker accompanies elderly person to members, particularly about financial affairs, most important transactions, not leaving them with this view supported by new friend, alone to speak for themselves acquaintance, or caretaker. • 13. Elderly person writes checks for cash, in • 10. Caretaker guarantees lifelong care if given round numbers or large amounts, or gives elders assets cash gifts to caretaker or their family

Warning Signs for Undue Influence Medical Professions Role

• 14. Older person increasingly helpless, • Fact witness: treating doctor frightened, or despondent, feeling that only • Expert Witness: did not treat, but recognized the caretaker can prevent their decline by the court having special knowledge • 15. Elderly person sees acquaintance or caretaker as exalted, with unusual powers or influence • None alone, but combination raises question

Medical Professions Role Medical Professions Role

• Any physician can conduct a capacity • 1. Define the health of the individual at the assessment time the will was made • Generally conducted by Psychiatrists—most • 2. Determine if the will was made voluntarily challenges related to mental state • 3. If there was an emotional connection • Core cognitive domains: 1. comprehension and encoding of information 2. information between the testator and an individual named processing 3. communication of decisions in the will made during an evaluation • 4. Comment on the testator’s level of • Cockburn rules & potential state requirements functioning at the time the will was made General Mental Status Exam General Mental Status Exam

• Appearance (how dressed, degree of • Affect (mood congruent, elevated, constricted, cleanliness, appears confused or not) blunted) • Abnormal movements • Suicidal ideation/homicidal ideation/passive • Orientation (person, place & time) death wish • Speech (rate, rhythm, volume, tone, clarity) • Hallucinations (auditory, visual, tactile) • Speech Content (goal‐directed, tangential, • Delusions (false, fixed idiosyncratic beliefs) word finding difficulties) • Anxiety • Mood (reported and assessed by examiner) • Cognitive Mental status exam—if possible

Dementia’s Affects on Wills Medical Professions Role

• Executive dysfunction/judgment affects ability to • Illness can affect cognitive abilities: insight, proportion estate perception, impulse control, susceptibility to • Deficits in working memory affect appreciation of current relationships influence, short‐ and long‐term memory • Autobiographical memory affects significance of • Conditions: cancer, CVD, endocrine, neurological, long‐term relationships stroke, diabetes, organ failure, alcoholism, drug • Apathy & Passivity render people vulnerable to abuse, affective disorders, dementia & delirium influence • Medications: muscle relaxants, anticholinergics, • Paranoia & Suspiciousness lead to changes of sedatives/hypnotics, narcotics, etc. heirs based on delusions or erroneous beliefs

Pre‐Death Competency Evaluation Pre‐Death Competency Evaluation

• Essential ingredients of a are • Reluctance to give information about potential money and unhappy potential heirs. heirs and their relationship to testator • Competency statement is routine due to • The mere anger or hurt or a need to act in a age mean way toward some potential heirs does • Appointment made by someone other than not in any way negate the will. testator or attorney • Someone else answers most of the questions • Testator seems unclear about specific items Lucid Interval Lucid Interval

• Defense of will made by person known to have • Wills: “a period of time within which an insane been demented for some time person enjoys the restoration of his faculties • Black’s Law: “Intervals occurring in the mental life sufficiently to enable him to judge his act” of an insane person during which he is • Generally conceded by Geriatric Psychiatrist that completely restored to the use of his reason so individuals with advanced stages of Alzheimer’s far restored that he has sufficient intelligence, disease do not have the capacity for lucid judgment, and will to enter into contractual intervals, whereas individuals with vascular relations or perform other legal acts without dementias and early stages of Alzheimer’s do disqualification or by reason of his disease. have fluctuations in mental capacity.*

Miami Rescue Mission, Inc. v. Roberts Clear and Convincing

• 1998 3DCA: Raimi v. Furlong—Just because • Reasonable Certainty of the truth of the you’re “insane” doesn’t mean you necessarily ultimate fact in controversy lack testamentary capacity if you happen to • sign your will during a “lucid Interval” Requires more than a “preponderance of the evidence” (>50%) but less than “proof beyond • Lack of testamentary capacity can be established by “clear and convincing” a reasonable doubt” (100%) evidence regarding the testator’s general • Truth of the facts asserted are highly probable health and mental well being in the days • Evidence which is positive, precise and leading up to the will signing. explicit—make a prima facie case

Video Taped Testamentary Capacity Questions for Video Taping

• Not fool proof but ensures that the reasons • Do you understand that the new will makes given for why the will was written and the old will invalid? distributed in a certain manner are available • What are the differences between the old will to future judges and juries—provide a clear and the new will? sense of the individual’s functioning at the • What is the reason the will is being written or time the will was executed. changed? • Who and what do you consider putting in the will or not including and why? Questions for Video Taping Physician Capacity

• Why divide the estate this way? • Test for Competence at Age 65? (Physical & • How will people feel or view this division? Mental Disabilities) • What are the economic implications? • Few Hospitals currently evaluate Age 70 • AMA June 2015—create guidelines for testing— • What are the important Relationships in your young also impaired—humiliation life and why? • AMA Senior Physicians Section: Claire Wolfe (not an easy sell) Report—”formal guidelines on the timing & content of testing of competence may be appropriate—preliminary guidelines creation

Physician Capacity (cont) Driving

• Mandatory retirement: 64,000 in 70s—2010; • Poor coordination, memory loss, and confusion >65 15.1% 2011; >60 33% in 2012‐‐AAMC are a dangerous combination behind the wheel. • Face‐to‐Face “fitness to work” evaluation by a • If you feel someone should stop driving, tell them vocational specialist; about 1 hr—cognitive, why. If they won’t listen, ask their doctor to step metabolic, psychological and physical in. domains‐‐$300‐$500 ? hospital pays, licensing • If they still insist on driving, contact the boards not interested Department of Motor Vehicles for an assessment. • Stanford Experience • Make other plans for transportation needs.

Senior Driving Test Physician’s Guide

• Physician’s Guide to Assessing and Counseling Older Drivers created by AMA, with support from the National Highway Traffic and Safety • https://www.facebook.com/video.php?v=772 Administration (NHTSA), 990296083073 • Help physicians address preventable injuries through assessment and counseling of older drivers. • Promote the safety of their patients and of the public. NHTSA: 20 Signs Unsafe Drivers NHTSA: 20 Signs Unsafe Drivers

• Drifts into other lanes • Coasts to a near stop in the midst of traffic • Straddles lanes • Presses simultaneously on the brake and accelerator • Makes sudden lane changes • Difficulty seeing pedestrians, objects and vehicles • Ignores or misses stop signs and traffic signals • Increasingly nervous when driving • Gets easily confused in traffic • Drives at significantly slower than the posted • Brakes or stops abruptly without cause speed • Backs up after missing an exit or road • Accelerates suddenly without reason • Difficultly reacting quickly

NHTSA: 20 Signs Unsafe Drivers Driving

• Problems with neck flexibility in turning to see • A number of states now require physicians to traffic notify the Department of Motor Vehicles if a • Gets lost or disoriented easily, even in familiar places patient is diagnosed with Alzheimer's or • Fails to use the turn signal another health condition that could affect • Increased "close calls" and "near misses" driving safety. State specific! • Two or more traffic tickets or warnings in the past two years • Dents and scrapes on the car or on fences, mailboxes, garage doors, and curbs

Driving in Florida Driving

• Section 322.126 (2), (3), Florida Statutes: “Any • File an unsafe driver report with state's Department of Motor Vehicles. Contact your state's DMV to find out the physician, person, or agency having knowledge of exact procedure. any licensed driver’s or applicant’s mental or • include reasons for making the complaint, contact physical disability to drive…is authorized to information. report such knowledge to the Department of • Be as specific as you can when outlining your reasons for Highway Safety and Motor Vehicles… The reports believing that someone poses a driving risk. • After receiving a complaint, the state agency will contact authorized by this section shall be confidential… the person and request a medical evaluation. The agency No civil or criminal action may be brought against might also require a driving test. Depending on the findings any physician, person or agency who provides the of these evaluations, they could either restrict their license (some elderly people cannot drive on the highway or at information herein.” night, for example) or revoke the license altogether. Driving Questions Permanency Planning

• T F Physicians are required to report patients • Will (Last ) with dementia • Advance Directives • T F Federal regulations govern the guidelines – Living Will for drivers – Durable Power of Attorney (property/person) • T F Someone with MCI should definitely not • Burial Arrangements be driving

Advance Care Planning Advanced Care Planning

• What is advance care planning? • Medicare Coverage of Advance Care • Service that supports conversations between Planning patients and their doctors and non‐physician • Beginning in 2016, Medicare Part B will cover practitioners to decide on what type of care advance care planning—i.e., discussions of may be right for them in the event of life‐ beneficiary preferences for end‐of‐life care. limiting conditions or incapacitating illness. • Outlined in a final rule published by the Centers for Medicare & Medicaid Services (CMS) in November 2015.

Advance Care Planning Advance Care Planning

• Plan for a time when they cannot make their own medical decisions. Life‐threatening condition, • Is advance care planning the same as an may discuss creating a disease‐specific plan, help advance directive? explore their understanding of the illness • No, advance directives, are legal documents that specify what should happen if a person is no progression, and discuss their own and family’s longer able to make their own medical decisions. hopes, fears, and concerns. Advance directives take many forms, such as • living wills and durable powers of attorney for Care choices during a critical event, and how health care. State forms should be completed aggressive patients would like their treatment to according to the state’s rules, to make the be (DNR status, antibiotics, and feeding tubes). documents legally binding. Advance Care Planning Advance Care Planning

• What do patients need to know about Medicare costs • Beginning January 1, 2016, two billing codes for this service? will be available for health providers to use for • Advance care planning benefit is not one of the free preventive services under Part B. Have to pay the 20% payment by Medicare when providing cost‐sharing (after the Part B deductible) associated advance care planning services. Previously, with using this service. However, if a patient chooses could only seek reimbursement from to have this service in conjunction with their Annual Wellness Visit, they will not have any cost‐sharing Medicare for this service under very limited liability (though the physician can bill Medicare for circumstances. both the AWV and advance care discussion separately). .

Warning Signs of Caregiver Stress Advance Care Planning

• References . • Federal Register, Vol. 80, No. 220, 70885. Nov. Caring for someone with Alzheimer's can be 16, 2015. Revisions to Payment Policies Under physically and mentally draining. Signs of the Physician Fee Schedule and Other caregiver stress include: Revisions to Part B for CY 2016. • Anger, sadness, and mood swings • Kaiser Family Foundation. Nov. 5, 2015. 10 • Headaches or back pain FAQs: Medicare’s Role in End‐of‐Life Care. • Trouble concentrating • Trouble sleeping

Legal Terms in Will Contests 23 Landmark Cases of Contested Wills

• Lucid Interval • Most Judges did not found their decisions on • Testamentary Capacity the doctor’s report, unless the treating • Undue Influence physician • • Insane Delusions Disgruntled family members left out, when included in an earlier will Will Contests Will Contests (cont)

1. Later will differs from earlier (revokes) with different • Hospitalization for MI alone is not reason to relatives/persons as beneficiaries consider person to not have capacity 2. Property disposed in a way that is “detrimental” to • Delusions: Influences Reasoning for provisions family members • 3. Marries or becomes involved affectionately with a Courts lean favorably to protect family integrity— person family questions in state’s interest 4. Mentally incapacitated or severe physical illness • Unlikely to uphold if pauperizes a helpless 5. More susceptible to influence of others (physical, member of the family mental, unusual dependence) • Distant, only natural relatives not seen in years 6. Refuses medical intervention/procedure to prolong seldom prevail if willed to church or other life—question of competency meaningful organization

In re Estate of Weil Insane Delusion

• Court noted short term memory loss does not • Spontaneous conception & acceptance as a render a testator mentally incompetent fact of that which has no real existence except • Testator recollect who are “natural objects of in imagination their bounty”—knows expectations of family • Conception originating spontaneously in the by the very act of mind without evidence of any kind to support • Focus on capacity to know who objects of it, which can be accounted for on no bounty are and (they are my sons) and not if reasonable hypothesis, having no foundation appreciates moral obligations and duties to in reality and springing from a diseased or heirs as fixed by society, courts or psychiatrists morbid condition of the mind.*

Estate of Hodtum, Ohio Mechanics Inst Cappock v Carlson v. Nora Casesaree Harmony Lodge • Thought “kicked out” of his Masons’ Lodge • Died age 84, sister age 92 disinherited • Lawyer verified not true, testator refused to • Sister claimed interest—left money to woman believe known 3‐4 years • • Court—Will set aside because of insane Told lawyer not leaving anything to sister because he did not think that she would delusion, without Psychiatric testimony survive him and was “well fixed” • Upheld—despite thought member of a SWAT team and drug enforcement agent at age 84; Nothing in delusion to do with sister Smith v. Smith Smith v. Smith

• Consistently told story v. delusion • Court—Test is his ability to exercise reason and • Deserted wife & lived with younger paramour reach a rational conclusion however erroneous with reference to the children • Convinced him that he was unable to father • Stupid error in either his reasoning or conclusion children and children in Massachusetts could is not a lack of testamentary capacity not be his; married after wife pregnant • A belief based on evidence, however slight, is not • Left estate to charity, paramour died first a delusion that rests on no evidence but mere • Will upheld—did not have insane delusion surmise. (Religious belief distinguished from delusion)

Will made by “Insane” Person Facts

• Capacity‐‐precise moment the will is executed • Long time Care taker—ill • Woman worked for his Podiatrist • May be valid if made during “lucid interval” • Got Power of Attorney • Moved from home without telling relatives • 89 yo—entire estate to caretaker of 1 month where to find him • Her lawyer prepared will, witnessed by her friends—testified alert and stable

How Did Court Rule? Burden of Proof

• Exception to Rule: Estate of Lamberson • Person who seeks to invalidate the will —unnatural disposition—sufficient— • 2 Exceptions: lacked testamentary capacity at time of will 1. testator adjudicated incompetent prior to signing (Beneficiary) 2. Undue Influence (Beneficiary) – Occupies confidential relationship with testator and active procurement—undue influence? Active Procurement In re Estate of Weil

• 1. Presence of beneficiary at the execution of • Mother disinherited sons who had not visited will her often • 2. Presence of beneficiary on testimony was • Sons—could not understand natural objects of discounted her bounty • Psychiatrist—totally unable to be aware and recognize the relationship to her children

How Did Court Rule? Lucid Interval

• Court—Relationship recognition did not • Defense of will made by person known to have influence in any manner testamentary been demented for some time capacity insofar as it dealt with the legal • Black’s Law: “Intervals occurring in the mental life requirement that she know natural objects of of an insane person during which he is her bounty completely restored to the use of his reason so far restored that he has sufficient intelligence, judgment, and will to enter into contractual relations or perform other legal acts without disqualification or by reason of his disease.

Lucid Interval Miami Rescue Mission, Inc. v. Roberts

• Wills: “a period of time within which an insane • 1998 3DCA: Raimi v. Furlong—Just because person enjoys the restoration of his faculties you’re “insane” doesn’t mean you necessarily sufficiently to enable him to judge his act” lack testamentary capacity if you happen to • Generally conceded by Geriatric Psychiatrist that sign your will during a “lucid Interval” individuals with advanced stages of Alzheimer’s • Lack of testamentary capacity can be disease do not have the capacity for lucid established by “clear and convincing” intervals, whereas individuals with vascular evidence regarding the testator’s general dementias and early stages of Alzheimer’s do health and mental well being in the days have fluctuations in mental capacity.* leading up to the will signing. Clear and Convincing In re Estate of Supplee, Boyd v. Cooper

• Reasonable Certainty of the truth of the • Died age 79, will made age 76 ultimate fact in controversy • Adjudicated incompetent before signing will— • Requires more than a “preponderance of the stepdaughter, niece & brother—not all to evidence” (>50%) but less than “proof beyond “favorite” stepdaughter (left 1/3) a reasonable doubt” (100%) • Small items of value missing from home— • Truth of the facts asserted are highly probable blamed stepdaughter and changed will • Evidence which is positive, precise and explicit—make a prima facie case

How Did Court Rule? In re Estate of Van Horne

• Chronic Alcoholic • Court upheld—not “insane delusion”—turned solely on testimony of witnesses at signing • Codicil—Guardian named beneficiary

How Did Court Rule? Gentry v Briggs

• Schizophrenic adjudicated incompetent • Left everything to his mother & nothing to • Case Law—Chronic Alcoholic is considered to daughter (lived with maternal grandmother) have capacity, when sober, to make a will How Did Court Rule? TICS: Questions and Scoring

Item Item response Scoring criteria Max score Item score

1. Please tell me your full name. 1 point for correct first 2 name (or nickname) (Do not document the response; • Court—Schizophrenia controlled by and 1 point for correct just mark correct or incorrect for last name medication and mental capacity determined each)

at precise moment will is executed—Lucid 2. What is today’s date? Probe for 1 point each for 5 month, date, year, day of week, and season precisely correct Interval month, date, year, day if not provided spontaneously (e.g., What of the week, and day of the week is it? or What season season (e.g., a hot day is it?) in early June is not

summer)

TICS TICS

3. Where are you right now? Probe for 1 point each for correct 5

house number, street, city, state, and zip house number, street,

code if any not provided spontaneously (e.g., city, state, and zip code (5‐digit zip code is What number is that? What is your sufficient). If 2 points if completely 2 zip code?) 4. Please count backward from participant is in a correct on first trial. 1 20 to 1. If participant makes an facility with no house point if completely

number (e.g., hospital, error, ask him/her to try again. correct on second trial

nursing home), the

name of the facility

may be substituted for

the house number.

TICS TICS

5. I am going to read you a list of 10 1 point for each 10

words. Please listen carefully and try correctly recalled word. 0 point for to remember them. When I am incorrect responses, 6. I would like you to take the 1 point for each correct 5 done, tell me as many of the words as repetitions, or subtract. Do not inform (Pause for you can, in any order. Ready? The intrusions. number 100 and subtract 7. participant of incorrect words are (pause) cabin, pipe, response) Now keep subtracting 7 from responses, but allow elephant, chest, silk, theater, watch, the answer until I tell you to stop. No subtractions to be whip, pillow, giant. (Pause) Now tell further prompts or instructions are given, made from the last me all the words you can remember. except to “keep going.” Stop the response. For example, The words should be read at participant after five serial subtractions. “93, 85, 78, 71, 65” approximately one word every 2 seconds. would be awarded 3 No repetitions of the word list are

permitted. points. TICS TICS

7. What do people usually use to cut 1 point each for 4 “scissors” or “shears”. paper? (Pause for response.) 8. Please repeat this after me: “No 1 point for correct 2 1 point for “12”. repetition. How many things are in a dozen? ifs, ands, or buts.” (Pause for a response) 1 point for “cactus”. (Pause for response.) 1 point for correct 1 point for “sheep” or Now, please repeat this after me: repetition. What do people call the prickly “lamb”. “Methodist Episcopal.” No green plant that lives in the repetitions of the phrases are

desert? (Pause for a response.) permitted. What animal does wool come

from?

TICS TICS

9. Who is the President of the United 1 point for current 2 10. With your fingers, tap five times 2 points if fives taps 2 president’s full name. States right now? (Pause for response.) are clearly heard. on the part of the phone you speak 1 point for current vice‐ 1 point if either more Who is the Vice‐President? Both president’s full name. into. If the TICS is being administered in than or fewer than 5 first and last names must be correct. If person, the participant should be asked to taps are heard. only the last names are given, probe for tap on the table rather than on the 0 points if no taps are the full name. telephone receiver. heard

Telephone Interview for Cognitive TICS Status(TICS) Max 41

11. I am going to say a word and I 1 point for “east”. 2 1 point for “cheap”, want you to give me its opposite. For  Passing score of Telephone Interview for Cognitive Status (TICS). “stingy”, “tight”, example, if I said “hot”, you would “selfish”, “greedy”, < High School Age Range ≥ High School say “cold”. 31 < 60 yrs 33 “mean”, “meager”, or 30 60‐69 32 29 70‐79 31 What is the opposite of “west”? other correct antonym. 28 80‐89 30 (Pause for a response)

What is the opposite of

“generous”?