Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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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
 

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Huntington’s disease (HD) is a progressive, degenerative brain disorder that causes certain nerve cells in the brain to waste away. Huntington’s is inherited, and if one of your parents has Huntington’s disease, you would have a 50% chance of getting the gene for the disease. Everyone who carries the gene will develop the disease. Since the HD gene was isolated in 1993, one can be tested to see if they are a carrier, however because there is no cure for HD, some people choose not to be tested.

About 1 in 10,000 Canadians has HD.

There are two types of HD: i) adult-onset, the most common form, with symptom onset in the mid 30s and 40s; and ii) early onset, which accounts for about 16% of all HD cases, with symptoms developing in childhood or adolescence.

Huntington’s disease is associated with three types of symptoms:

· Movement symptoms, referred to as chorea, which consist of jerking, involuntary movements (‘tics’) of the limbs, trunk or face;
· Cognitive symptoms including a gradual impairment of concentration, memory, judgment, reasoning, decision-making and learning. This cognitive decline starts in a very subtle fashion, but eventually results in dementia; and
· Psychiatric symptoms may include depression, and psychotic behaviours such as delusions, hallucinations, paranoia and inappropriate outbursts.

HD usually runs its course in about 10 to 30 years, with a strong correlation between an earlier onset and a more rapid progression of the disease.

Jennifer Hartman, Guest Blogger
 

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Insights on Aging and the Elderly Seminar - Hull on Estate and Succession Planning Podcast #106

Posted on April 1^st, 2008 by Hull & Hull LLP

Ian Hull: Hi and welcome to Hull on Estate and Succession Planning.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada.  Here are Ian and Suzana.

Ian Hull: Hi, it’s Ian Hull and I’m here today, on a solo mission again, just because of crazy schedules.  Suzana and I weren’t able to get together.  However, we did talk before and thought we’d touch on a couple of topics that I think should be of interest.  Now, don’t forget to check out our web page at: www.hullandhull.com where you can get easy access to our daily blog and of course, the phone-in number which is at: 206-350-6636.

So I thought what I’d like to talk about today is a seminar that I was involved with.  Two seminars I did last week.  One was with the Law Society of Upper Canada, it was an interesting seminar.  It was about dealing with disability planning and estate planning and it was really…it was a phone-in seminar and it was really interesting to hear from…there was 5 or 6 of us speaking in different perspectives.  But the second seminar I spoke at was the Trust and Estates Group, the Lawyers’ Division of B’nai Brith.  And in conjunction with the Beth Tzedec Congregation of Toronto.  It was a seminar which was sponsored by Scotia Private Client Group and it was held at Beth Tzedec on March 27^th, 2008.  Pretty interesting, great crowd and interesting group of speakers.  And I just thought it would be worthwhile sort of doing a segway onto this because, in large part, I think it was such a helpful seminar and I encourage those who are interested.  It’s going to be, it was videoed and it’s going to be on the Beth Tzedec web page and I think they are going to have a video link to it.

The program started off with Dr. Nathan Herrmann.  Now Dr. Nathan Herrmann is the Head of Geriatric Psychiatry at Sunnybrook Health Sciences Centre.  And Dr. Herrmann did what very few doctors can easily do, and that is, essentially bring down to an understandable level the whole question of cognitive impairment, from the medical practitioner’s standpoint.  And he talked about cognitive impairment and the difference between that and dementia.  And then, of course, finally Alzheimer’s Disease.  And he kept pointing out, and I thought it was very important was that Alzheimer’s Disease is only part of the cognitive impairment aspects of any analysis that you undertake with regard to this kind of issue.  Obviously, cognitive impairment dealing with problems with memory loss, language, concentration…that can affect anybody of any age.  Alzheimer’s Disease is typically a disease that affects the elderly and dementia itself is also part of the cognitive process.

He pointed out that 8 to 10% of people over the age of 65 are afflicted by dementia and 20 - 30% of people over the age of 80.  It was an interesting point that he raised was that a very high percentage of people, of course, in long-term care institutions, suffer from dementia.  In Canada today, 200,000 people are said to suffer from Alzheimer’s Disease.  He talked about some of the causes of it, talked about sort of the medical analysis behind it, and I thought that was really helpful.  But he spent some good amount of time on what Alzheimer’s Disease is.  And as he said at the seminar, he said “you know, over 60% of those suffering from Alzheimer’s comes from the dementias and the cognitive impairment world in that sense”. 

And he raised the 10 early warning signs of Alzheimer’s Disease.  No. 1 was memory loss that affects daily functioning; No. 2 was difficulty with familiar tasks; No. 3 - problems with language; No. 4 - disorientation to time and place; No. 5 was poor or decreased judgment; and No. 6 was problems with abstract thinking; No. 7 - misplacing things; No. 8 - changes in mood and behaviour; No. 9  - changes in personality; and the last one, as a symptom, was loss of initiative. 

So he works through the continuum of cognitive impairment, starting with mild cognitive impairment, leading to earlier mild dementia, moderate dementia, severe dementia and then, of course, end stage dementia.  So he was very anxious to make sure that we all understood the importance of ensuring that there was a proper diagnosis, that those who were suffering from it were obviously…lived healthy and safe environments.  And treating the dementia itself is an issue that was raised by those in attendance and by Dr. Herrmann.  And he talked a little bit about that, talked about managing the illness as opposed to obviously resolving it.  He mentioned that there was a couple of new drugs that are always in sort of the loop, so to speak, in terms of care and was really helpful, I think, in large part just putting people at ease in terms of how the medical community sees the illness and how to manage it.

Now his comments were to set the stage for what was then to be sort of the more legalistic approach to these questions and also what I thought was a phenomenal approach was by Rabbi Roy D. Tanenbaum, who is the Rabbi at Beth Tzedec Congregation of Toronto.  He brought in sort of Jewish philosophical issues and the conflict between elderly autonomy and the family perception of best interests.  And it was fascinating because when we litigate over these matters, the Courts are by statute compelled to consider and analyze any sort of decision that they make in the context of Power of Attorney litigation, with the balancing act of the rights of the individual independence, as Rabbi Tanenbaum mentioned, parental autonomy in his example, versus the best interest test.  And, sure enough, for many thousands of years, the test has indeed been both from a religious standpoint and a statutory and legal standpoint, the test is this struggle between what is for the benefit of the person versus does the patient get to make his or her own decision?  And Rabbi Tanenbaum took us through what was a challenging analysis of the existing legal system.  And it was fascinating for me to see that many of the core issues that we work with in coming to the Courts, are very much founded in religious beliefs. 

The last speaker I want to speak about, because I spoke, but the fourth speaker was Charles B. Wagner who is the Chair of the Estates and Trusts Lawyers’ Division of the Estates and Trusts Group.  And Charles was really a phenomenal speaker at the seminar.  He talked about duties of a person appointed as Power of Attorney over property.  And talked about the privilege that it is to help our aging parents, at the same time, the challenge that brings with it.  And Charles, of course, used some great anecdotal examples, but also spent some time going through what has been, you know, sort of, classic scenarios where we are faced with having to balance the act of the personal interest and independence of our parents versus what is in their best interest.  And this is all done in the context of the grey area, and that is, what is indeed, you know, your capacity to do how much, and what will the Courts let you do in that respect.

We were reminded to step back and look at the Substitute Decisions Act under Section 22 and then Section 55.  That sets out the, sort of the code of conduct to bring an application for guardianship when you don’t have a Power of Attorney.  And then other provisions in the Act deal with what are essentially the accounting obligations that Charles talked about.  Now the Act is much more voluminous than that and obviously more complicated than that, but he was very helpful in sort of setting us and grounding us in that regard.

So I thought those were really helpful words and brought some real insight on aging and the elderly.  And my final thought on this seminar was that…the thing that was so wonderful about it was the participation from the audience.  It was clear that this is a very important issue for everyone now, becoming more important, and based on the questions that were asked and the enthusiasm of the audience, we are seeing obviously development in this area that is not just because its our area of work but it is an important area for our society to keep mindful of.

So anyway I think that sort of summarizes that seminar and the seminar before, I will talk about at another podcast.  So much missed was Suzana at this podcast, but in an effort to keep making sure that we get our daily podcast out, I’m doing it solo again.  And I want to remind you to go to our web page at:  www.hullandhull.com and you can work your way through that page and then ultimately to our blogs and our phone-in, which is at: 206-350-6636.

So thanks again for listening and we’ll be back to you next week.  Thanks.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.