As estates practitioners know well, the medication that an individual takes could reflect underlying conditions that affect mental capacity. High doses of pain medications or other medication prescribed to treat serious physical ailments may also impact a person’s cognition.
A recent article on Considerable highlights the impact that certain common medications may have on mental capacity. An estimated 25% of seniors take “anticholinergic” drugs to treat a variety of common issues, including allergies, insomnia, and asthma. These medications are known to target acetylcholine, a chemical messenger that plays an important role in concentration, cognition, and memory. Some drugs (including over-the-counter medications as well as those for which a prescription is required) impact acetylcholine levels more than others and, when they are taken together, can have a cumulative effect. As a result, high doses of anticholinergic drugs, which are often believed to have only inconsequential side effects, can interfere with brain messaging and result in symptoms consistent with dementia.
The article refers to a patient whose score on a Mini-Mental Status Examination increasing from 11 to 28 out of 30 after a readjustment of her medication, which included common antihistamines and medication for mood and gastrointestinal issues. Further research is being conducted on the short-term and long-term effects of anticholinergic use, as there is concern that prolonged use may cause irreversible cognitive decline.
As our readers know, due to the nature of capacity standards and importance of reviewing capacity on a case-by-case basis at the time of the relevant decision or instructions, it may be worthwhile to consider whether medication, even that commonly prescribed to seniors, may be a contributing factor.
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Many estate solicitors are retained to draft Wills for elderly clients. Concerns over capacity are normal. As such, I am frequently asked how thoroughly a drafting solicitor should enquire into capacity.
Although there is no universal answer, the decision in Wiseman v Perrey, provides helpful insight. Referring to an earlier decision from the Manitoba Court of Queen’s Bench, the Court set out the basic rules dealing with testamentary capacity where a professional, such as a drafting solicitor, is involved:
(a) neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity;
(b) the duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill and, particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous; and
(c) a solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.
There are a variety of tools a solicitor should employ, including having the testator take a Mini-Mental State Examination.
Depending on the severity of the solicitor’s concern, the use of a capacity assessor who specializes in assessing testamentary capacity should be considered. The assessor should be specifically instructed to assess whether a testator has the capacity to make a new Will. Although not an easy topic to broach with a client, these types of assessments can assist in ensuring the testator’s last ‘capable’ wishes are followed.
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A conversation about driving with dementia exploded in the press in recent weeks. Everyone is weighing in on this debate, with potential stakes running obviously high. Certainly the decision to take away a patient’s licence could never be undertaken lightly, so how can a physician accurately determine driving risks associated with dementia?
A patient’s score on the Mini-Mental Status Examination (MMSE) score, when considered on its own, is a surprisingly poor predictor of a driver’s ability to drive safely. In fact, studies have shown that as many as 76% of patients with mild dementia are still able to pass an on-road driving test. Last month, in a strong effort to refine the entire process of assessing driving risk associated with dementia, the American Academy of Neurology issued updated guidelines for physicians. These updated practice parameters take into account the following characteristics that have proven useful for identifying patients at increased risk for unsafe driving:
• Clinical Dementia Rating Scale (CDR);
• A caregiver’s rating of a patient’s driving ability as ‘marginal’ or ‘unsafe’;
• The patient’s driving history, including accidents and citations;
• Self-reported ‘situational avoidance’ [Studies have shown that self-restricted driving, perhaps by avoidance of highway driving or night driving, or driving in inclement weather, or simply reduced overall mileage, is an accurate indicator of a driver at increased risk];
• An MMSE score of 24 or less; and
• Aggressive or impulsive personality characteristics.
This multi-faceted risk assessment brings the Americans more in line with the current Canadian approach, as outlined in the Canadian Medical Association’s document: Determining Medical Fitness to Operate Motor Vehicles CMA Driver’s Guide which takes this stance: "The driving ability of people with mild dementia should be tested on an individual basis. Studies have shown that a significant percentage of those in the early stages of dementia are able to operate a motor vehicle safely."
Jennifer Hartman, guest blogger
In the course of reviewing medical records in advance of estate litigation, one will encounter a wide variety of cognitive screening tools used to identify cognitive impairment. A handful of these tools are described here:
• Confusion Assessment Method (CAM): an ICU assessment tool used to detect the presence or absence of delirium. A CAM assessment is usually carried out once every 8-12 hours (once per nursing shift). Results are presented as either ‘CAM-positive’, or ‘CAM-negative’, indicating the presence or absence of delirium, respectively.
• Mini-Mental Status Examination (MMSE): a quantitative measure of cognitive status in adults. Despite its well-documented limitations, the MMSE is the most widely used standardized cognitive screening test in both clinical practice and research. Scores (out of a maximum 30 points) are paired with an associated level of impairment, i.e. no impairment, mild impairment, moderate impairment or severe impairment.
• The Montreal Cognitive Assessment (MoCA): a rapid cognitive screening instrument used to detect mild cognitive impairment. This user-friendly tool assesses attention and concentration, executive functions (these are the high-level abilities that control more basic abilities and behaviours), memory, language, conceptual thinking, visuoconstructional skills, calculation and orientation. Studies have shown the MoCA to be far more sensitive than the Mini-Mental Status Examination (MMSE) in its ability to detect mild cognitive impairment.
There are dozens of other cognitive screens in use including the Mini-Cog, the Rowland Universal Dementia Assessment Scale (RUDAS), the Clinical Dementia Rating (CDR), the Memory Impairment Screen (MIS), and the recently published Self-Administered Gerocognitive Examination (SAGE). In the context of a dispute regarding testamentary capacity, cognitive screening results are valuable for the estate practitioner, in that they provide tangible, measurable, time-sensitive information regarding the testator’s cognitive functioning, and serve as a tool for assessing the progression of the impairment.
Jennifer Hartman, guest blogger