These days, life expectancy is longer than ever. We have previously blogged (for instance, here and here) about some considerations and consequences of having a longer life expectancy. A recent article in The New Yorker considers aging, and in particular, anti-aging now that people are generally living longer. The online version can be found here: Can We Live Longer but Stay Younger?
One of the problems with living longer, as highlighted in the New Yorker article, is that we still must deal with the challenges and realities of aging. What we really want is not eternal life but rather, eternal youth.
The article discusses several efforts to address or counteract the types of issues that we face as we age. For instance, a geneticist at Harvard has successfully extended the life of yeast, and is moving on to human trials. A Harvard molecular biologist, George Church, has had success reprogramming embryonic stem cells to essentially turn an old cell into a young cell. Church’s work has been done so far on mice and dogs, but there are plans to commence human clinical trials within the next five years.
The goal of the work being done by Church is to live better, not necessarily longer: “The goal is youthful wellness rather than an extended long period of age-related decline.” The article discusses the nature of this age-related decline, through the illustration of a “sudden aging” suit that allows the wearer to experience the physical challenges of aging, including boots with foam padding to produce a loss of tactile feedback, and bands around the elbows, wrists, and knees to simulate stiffness. The point of the aging suit is to help create empathy and understanding about how difficult each and every task (an example was reaching up to a top shelf and picking up a mug) can be for older adults, both physically and mentally. So the question becomes, if we are living so much longer, but with age, every day and every task becomes much more difficult, what can we do to counteract that?
The work being done related to anti-aging and the creation of products to make older people’s lives easier is interesting and seems to be moving in new directions. For instance, the article mentions the difficulty of marketing certain products aimed at older people, because we do not like the idea of buying something that reminds us that we are old. So instead of selling a personal-emergency-response system to send an alert and seek assistance in the event of a fall, or some other physical emergency, in the form of a pendant worn around the neck, it is suggested that the most effective such device would be an iPhone or Apple Watch app.
Unfortunately, the issue of dementia is still a concern. There still does not appear to be a cure in sight for Alzheimer’s or other forms of dementia. The causes remain unclear. The effects, however, are evident. One of the individuals mentioned in the article was Professor Patrick Hof, who studies brains. On the physical effects of dementia on our actual brains, Professor Hof notes that “[y]ou can’t tell any difference, even under extreme magnification, between an aging non-demented brain and a younger human one…But, holding an Alzheimer’s brain in your hand, you can see the atrophy.” It appears that there is still a lot of work to be done in this area, in particular.
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Other blog posts that you may find interesting:
This is an actual headline from an October 23, 2018 post on “Tennessean”, which is part of the USA Today Network.
Apparently, the doctor borrowed $300,000 some time ago from a long-time patient who was also a friend and the administrator at the doctor’s clinic. When the patient later requested repayment, the doctor diagnosed her with dementia in an apparent attempt to escape the debt. The doctor forwarded the diagnosis to the patient’s daughter, who in turn forwarded the letter to the patient’s financial company. The patient was then denied access to her assets.
The doctor later admitted that the diagnosis of dementia was based solely “on observation”, and that she did not use any testing methods or obtain a second opinion.
A later assessment by a psychologist stated that the patient had no indication of dementia.
As a result of disciplinary action that was brought against her, the doctor voluntarily retired her licence.
In an interview with the Tennessean, the doctor said that she was “set up” by a vindictive patient, and that she retired after state attorneys “presented her with an unwinnable legal case.” The doctor said that she borrowed the money 20 years ago and that she had been making repayments.
The doctor said that the patient did in fact “exhibit erratic behavior and signs of memory loss”. She said that the patient “later misled the psychologist so the dementia diagnosis would not be confirmed.”
What is not clear from the report is how the doctor could have expected to avoid the debt by having the patient declared incapable. Surely the patient’s daughter or someone else on her behalf could have taken steps to enforce the debt. That is, however, assuming that they knew about it.
A takeaway is to ensure that your legal and financial affairs are in order and are well documented, so that someone can step in and protect your assets and enforce your rights in the event that you are found to be incapable, legitimately or not.
Another takeaway may be to be careful when getting medical assistance in Tennessee. The headline to another story posted October 11, 2018 reads: “This pain clinic nurse gave a patient 51 pills a day. And she kept her licence.” (For the record, the pills consisted of 32 tablets of methadone, 8 Roxicodone, 4 Soma, and 6 Xanax throughout the day, topped off with 1 Ambien.)
Have a great weekend.
A recent report on the healthista.com website discusses ways to avoid or slow the progress of dementia.
First, the bad news: In the UK, one person is diagnosed with dementia every three minutes. One in twenty people develop dementia under 65, and after turning 65, a person’s risk of developing dementia doubles every five years.
Now the good news: there are various things that we can do to reduce the risk of developing dementia. These include:
- Stimulate your brain. This means doing more than “brain training”. Social interaction is seen as the key. Also, taking up new hobbies, interests and intellectual challenges is more beneficial than doing the things that you have always done.
- Develop a “cognitive reserve”. A high cognitive reserve, based on higher education, a complex lifetime occupation and high levels of social engagement helps maintain brain health. Lawyers, social workers, teachers and doctors were better protected from Alzheimer’s than shelf-stackers, machine operators and labourers.
- Take Aspirin. Long term use of aspirin is associated with a reduced risk of Alzheimer’s. Low doses of aspirin, traditionally associated with heart health, was found to lead to better memory and cognitive function.
- Take fish oil. This one is a bit controversial. Some studies have shown that fish oil slows the decline of cognitive function. However, a Cleveland Clinic post has suggested the research is not conclusive on the benefits of fish oil, and suggests that you should simply eat more fish.
- Help your heart, help your brain. The same processes that cause heart attacks and strokes are also associated with the development of dementia. Conversely, the lifestyle factors that help your heart can also help maintain cognitive function.
- Drink, eat and exercise. Drink champagne: one to three glasses a week. The phenolic compounds found in the grapes used to make champagne have the ability to increase spatial memory, improve cognitive function and promote learning and memory retention. Further, regular moderate exercise can prevent the onset of dementia. Even better is engaging in a sport, as this adds a social element, as well. Finally, a healthy diet, such as the Mediterranean diet, has been found by a number of studies to slow cognitive decline and lower the risk of developing Alzheimer’s.
More good news: in the next ten years, it is expected that research will reveal more specific actions that can help prevent Alzheimer’s and dementia.
Have a great weekend.
Canada’s population of seniors continues to rise and with that comes the concerns of attending to the unique needs of an ageing demographic. In 2016, Canadian census data showed that the number of seniors in Canada was slightly higher than that of children 14 and under. Canada, like the rest of the world, has been undergoing changes to account for the population changes that include a growing number of individuals struggling with dementia. Today, I’ll explore an innovative new project in British Columbia aimed at providing a safe yet independent living environment for seniors with dementia.
The Village is a new residence which will accommodate those with dementia in an environment meant to provide the feel of a small village or community. Residents will live in cottage style residences with nearby amenities such as a grocery store, a salon, a coffee shop and a community garden. While residents will be able to go about their lives in the community, they’ll also have the care they require. The project is modeled after the first “dementia village” that was opened in Amsterdam. The goal behind such communities is to move those with dementia away from an institutional setting so as to improve their quality of life.
With estimates that approximately 940,000 people will have dementia in Canada by 2031, it’s great to see new and innovative options available for those with such an illness. Right now, the project in BC is slated to open in 2019 and is a private endeavour meaning residents (or their family) will be responsible for the full cost.
While the project is still in its infancy, it will be interesting to see how it develops and how it might be implemented in the rest of Canada.
From a legal (and Ontario-centric) perspective, it is interesting to note how the goals of “dementia villages” align with the Residents’ Bill of Rights under Ontario’s Long-Term Care Homes Act, 2007. The Residents’ Bill of Rights includes a lengthy list of rights of residents of long-term care facilities designed to promote recognition of the dignity, security, safety, and comfort of residents. Included in the Residents’ Bill of Rights is “the right to receive care and assistance towards independence based on a restorative care philosophy to maximize independence to the greatest extent possible.” The development of dementia villages shows one way in which this right may be furthered.
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An Attorney for Personal Care and a Guardian of the Person is statutorily mandated under section 66(3) the Substitute Decisions Act, 1992 (the “SDA“) to make certain decisions in the incapable person’s best interests if the incapable person’s wishes and instructions are unknown or if it is impossible to act in accordance with those wishes and instructions.
A component of the best interests analysis, as set out in section 66(4), includes considering whether the guardian’s decision is likely to,
“i. improve the quality of the person’s life,
ii. prevent the quality of the person’s life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.”
Given that improving the quality of a person’s life and preventing their quality of life from deteriorating are two sides of the same coin, there is exciting and heart-warming new technology which uses Google Street View to treat Alzheimer’s patients.
This new technology is a prototype called BikeAround. BikeAround is essentially a stationary bike that stimulates the experience of, literally, biking down memory lane for an Alzheimer’s patient. The patient is placed on a stationary bike which faces a projection of his/her familiar hometown streets from Google Street View. The experience is intended to prevent memory loss by bringing to mind locations that are associated with the patient’s memories. The simultaneous physical stimulation from the act of biking is also considered to be a crucial component of the benefits from this new technology.
Anne-Christine Hertz is the biomechanical engineer who developed BikeAround.
This video on Hertz’s research is not to be missed.
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According to the Alzheimer Society of Canada, 25,000 Canadians are diagnosed with dementia each year, and more than 500,000 are currently living with the disease. While dementia can occur at a relatively young age, the risks increase as we grow older. According to the federal government’s Chief Public Health Officer, the average age of the onset of dementia symptoms is 70 years for men and 74 for women.
One of the risks for those with dementia is losing the ability to make sound financial decisions, or, even worse, falling victim to scams in which they willingly transfer money to others without a full understanding of what they are doing. In the United States, many financial advisors have put a safeguard in place to protect their senior clients who might develop the disease – it’s called an emergency contact authorization form.
How the Form Works
With an emergency contact authorization form, the client identifies someone they trust that their financial advisor can contact if the advisor believes the client is having trouble managing their finances or is being taken advantage of financially. You can view a sample form here: [http://www.virginialynn.net/files/72367/2016%20Emergency%20Contact%20Authorization%20Form.pdf]
The form only authorizes the financial advisor to discuss the situation with the designated individual. It does not give that individual authority to manage the client’s financial affairs, as a power of attorney would. The designated individual may be the same person named in the power of attorney, but it doesn’t have to be.
Because dementia is progressive, moving from mild, to moderate, to severe cognitive decline over time, financial advisors who advise seniors are in a unique position to see these changes occur between portfolio review sessions – or to spot any unusual financial requests or transactions that seem out of character for the individual. The emergency contact authorization form gives the financial advisor the ability to take action, and discuss the situation with someone the client has indicated they trust.
It’s a protection that we hope will gain greater prominence in Canada soon. You can learn more about the use of these forms in the U.S. here: http://www.themckenziefirm.com/financial-firms-roll-out-form-aimed-at-stopping-financial-elder-abuse/
Thank you for reading … Have a great day!
Testamentary capacity is most commonly an issue when a testator prepares a new will later in life, against a form of progressive dementia, whether it became apparent before or after the creation of the will.
The Main Question to be Considered
In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity. If the testator has been deprived of their capacity, it is likely (but by no means certain) that the will they signed will be invalid. Pursuant to the case of Johnson v Huchkewich (2010 ONSC 6002), a diagnosis of dementia is not tantamount to a lack of testamentary capacity.
Requirements for Capacity
As established in Banks v Goodfellow [(1870), [1861-73] All ER Rep 47], “the standard of capacity in cases of impaired mental power, is…the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding.” In applying the test for testamentary capacity, it is important to ensure that the testator was capable of appreciating the terms of the will, but also the circumstances surrounding the making of the will. The testator must be able to recall and comprehend circumstances beyond a range of familiar topics. As defined in Leger v Poirier (1944 CarswellNB 11), the individual must be able to have a “disposing mind and memory”, which is able to “comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like.”
Therefore, in a case where an individual has progressive dementia and is attempting to make a testamentary document, the lawyer has an obligation to ascertain if the individual can appreciate the circumstances as a whole. The ability for the testator to rationally respond to questions is not enough to determine that the individual has full capacity.
Furthermore, it bears repeating that a testator who is incapable to manage his or her affairs due to progressive dementia, does not necessarily lack testamentary capacity. As established in the case of Cranford’s Will, Re, (1978 CarswellNfld 23), “in determining the testamentary capacity of an aged person it is necessary to be careful not to substitute suspicion for proof so as to render it impossible for old people to make wills…”
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This September marks the fifth annual World Alzheimer’s Month. World Alzheimer’s Month and World Alzheimer’s Day, which took place on Wednesday, are part of a campaign to increase awareness of dementia and related misconceptions.
In honour of World Alzheimer’s Day, Global News posted an article outlining five common misconceptions about dementia. They focused on the following:
- “Misconception: A diagnosis of Alzheimer’s disease or dementia means my life is over.” Individuals can continue to live and function normally for years despite a diagnosis with Alzheimer’s disease.
- “Misconception: Dementia is a disease of the elderly.” Although the likelihood of developing dementia and other memory issues may increase with age, early-onset dementia can affect individuals in their 40s or 50s. In Canada, approximately 16 thousand of those living with dementia are under the age of 65.
- “Misconception: There’s nothing I can do to prevent or stave off dementia.” Research suggests that there are ways to limit the risks of developing dementia, such as an active and social lifestyle and a healthy diet.
- “Misconception: Dementia and Alzheimer’s disease are all about memory loss.” Dementia goes deeper than memory loss and this misconception may trivialize the disease.
- “Misconception: One of my parents had Alzheimer’s disease, so I’m going to get it, too.” The most common forms of dementia do not appear to be genetically inherited, so the risk of developing Alzheimer’s is only loosely connected to family history of the disease.
Have a great weekend.
Our population is aging but living longer. This has resulted in an increase in the prevalence of dementia and other aging-related conditions associated with cognitive decline, and a corresponding increase in the use and activation of powers of attorney.
As estate litigators, our firm is beginning to see a rise in power of attorney disputes between siblings and other family members. These types of disputes are often emotionally fuelled by longstanding sibling rivalry or distrust among family members, and can result protracted litigation and expensive legal bills.
Often a sibling or other family member will have concerns that the appointed attorney is acting improperly or is failing to fulfill his or her duties. In these circumstances, the sibling or family member may have concerns with respect to a lack of transparency or feel that they are being left out of the decision-making process.
It is useful for these individuals to know that the Substitute Decisions Act, 1992 (the “SDA”) imposes certain obligations upon an attorney, which may assist in addressing these concerns.
The SDA states that an attorney has a duty to consult with family members and keep them informed as to the incapable person’s health and wellbeing (ss. 32(5)) and that an attorney has a duty to foster personal contact between the incapable and his or her supportive family members (ss. 32(4)).
The SDA also states that an attorney has a duty to keep proper records and to provide updates regarding the incapable person’s financial circumstances (ss. 32(6)).
The SDA also states that an appointed attorney must also obtain and review a copy of the incapable person’s Will (s. 33.1). If the Will provides that a specific item of property is to be given to a particular beneficiary, the attorney must retain that property for that beneficiary unless it is essential to sell the item in order to satisfy the incapable person’s legal responsibilities or otherwise provide for the incapable person (ss. 35.1(1)).
These duties are ongoing and an attorney can generally be held personally liable for any damages that results from a breach of his or her duties.
The Office of the Public Guardian and Trustee has published a brochure that outlines the duties and powers of an appointed attorney for property in greater detail, which can be viewed here.
Communication is often the key to resolving these types of disputes between family members. However, where there is a breakdown in communication, the assistance of a litigator or mediator who specializes in this practice area is often helpful.
Thank you for reading.
If you have been to a wedding or to university within the last several decades, you know Spirit of the West’s anthem “Home for a Rest“. If ever there was a song guaranteed to get you up onto your feet and the party started, this is the song. I know I personally cannot think of my early days at university without it playing somewhere in the background. It is for this reason that I read with great sadness the Globe and Mail’s report that Spirit of the West will be performing their final ever show this coming weekend.
Spirit of the West’s lead singer, John Mann, who is only 53 years old, has previously been diagnosed with early-onset Alzheimer’s. While the band had previously advised that they hoped to keep performing for as long as possible, only two years after making the diagnosis public, the band has advised Mr. Mann’s status has declined such that the time is right to bring the show to an end. Mr. Mann’s story echoes that of country legend Glen Campbell, who recently publicly played out his own battle with Alzheimer’s, releasing the gut-wrenching “I’m Not Gonna Miss You” as his final song, detailing his battles with the disease.
While hearing stories like those of Mr. Mann and Mr. Campbell are never easy, they provide us with the important opportunity to remind ourselves that no one in this world is necessarily immune from issues affecting their capacity. While it can sometimes be difficult to talk about, stories like these remind us of the importance of executing documents such as a Power of Attorney for Property and Power of Attorney for Personal Care to ensure that you are properly looked after should you become incapacitated.
While we may no longer be able to hear Spirit of the West perform live in person, their music will no doubt live on for years to come. So without further ado, take me home: Spirit of the West – Home for a Rest (Music Video)