32 Trial Lawyer • Winter 2023 In practice, I see some consistent differences between dementia and other conditions. Individuals with dementia will often have new, persistent behaviors with little insight into how their behavior is experienced by others. This can be experienced as a lack of empathy. Alissa Sauer, Why There is a Lack of Empathy in People with Dementia, Alzheimers.net (August 10, 2016), https://www.alzheimers.net/8-10-16-lack-of-empathy-in-people-with-dementia. Individuals with dementia will also regularly have unresolved memory lapses. Clients who are not experiencing a neurodegenerative disease will typically resolve memory lapses at a later date. I was recently speaking with a busy, retired-ish couple running a horse ranch in rural Oregon. The husband had called his wife to ask where his phone was, to which she responded “I’m not sure…” They quickly noticed what had happened and had a good laugh. They asked if they should be concerned. Of course, this was not a clinical assessment but I did not bat an eye at continuing with their planning. They had realized what had happened, had insight into the humor of it and were not exhibiting any other symptoms during the meeting. It can be particularly difficult to differentiate between dementia andMild Cognitive Impairment (MCI). This is defined by the Alzheimer’s Association as a “slight but noticeable and measurable decline in cognitive abilities.” MoreThan Normal Aging: Understanding Mild Cognitive Impairment, Alzheimer’s Association, https://www.alz.org/media/ Documents/alzheimers-facts-and-figuresspecial-report.pdf. People with this diagnosis are at an increased risk of developing dementia but it is often not severe enough to interfere with daily life or independent function. A person with MCI may have legal and clinical capacity; however, you need to ensure they continue to have capacity throughout the proceeding. MCI can be part of a larger disease continuum for neurodegenerative diseases. The Mayo Clinic reports approximately 10% to 15% of individuals with MCI go on to develop dementia each year. Another important distinction to make is whether the client is impaired or simply a character. The law does require that we not confuse “incapacity with eccentricity or lack of prudence.” Margulies, Peter, Access, “Connection and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity,” 62 Fordham L. Rev. 5 1073, 1083 (March 1994). The right to folly in Oregon is alive and well. Schaefer v. Schaefer, 183 Or App 513, 52 P3d 1125 (2002). If the client is exhibiting impaired judgment but it does not seem to be attached to an underlying medical condition, they may simply have a strong personality. We have occasionally had to question a client’s diagnosis. There are more than 85 diagnostic categories and discreet conditions causing dementia. “American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders,” Fifth Edition. Arlington, VA: American Psychiatric Association, 2013. Most incidences are correlated with increased age, but some causes are reversible. We once had a tragic case where a wife had a dementia diagnosis. Her husband had promised he would never place her in a memory care facility but unfortunately, it was no longer safe for her to be in the home. Upon placement, sadly, he took his own life. The wife’s family subsequently came into our office to do planning. We were curious about the rapid progression of the illness and asked them to confirm it was not Normal Pressure Hydrocephalus (NPH), which is commonly misdiagnosed as Alzheimer’s or Parkinson’s. It was NPH. The wife received treatment and the first thing she asked after treatment was “Where is my husband?” Of course, we are not in a Capacity Continued from p 31
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