“I can spell WORLD backwards.” These were the patient’s first words to me from her hospital bed. 

“I really mean it: D-L-R-OW.  See? That’s right, isn’t it?” 

I had been asked to come to the hospital to see this patient, a woman in her early sixties who needed to make some changes to her will. Because I was leaving for Ottawa, I said that was quite impossible, and provided her daughter with the names and telephone numbers of three lawyers who would possibly make a hospital visit. The daughter reportedly discussed this with her mother, who determined that she would wait until I returned – after her triple bypass.

I became alarmed when the patient phoned me the following week. 

I learned that she was more than a little preoccupied with her own competency. It took me a few minutes to realize that she was referring to question four on the Mini Mental State Examination (MMSE). She thought it important to convince me that she was competent to provide me with her instructions to change her will.

Assessing competence: a judgment call

Some hold the belief that as people age, they become less capable. However, age-associated memory impairment is not diminished capacity. In fact, when lawyers request an assessment from a client’s physician, the physician may use and could rely on an assessment tool such as the MMSE. (“‘Mini Mental State’”: A Practical Method For Grading The Cognitive State Of Patients For The Clinician, Journal of Psychiatric Research, 12(3): 189-198, 1975.)

The results of this test do not provide much assistance to lawyers for their purposes. A physician may evaluate a patient’s capacity to make decisions, but competence is a legal determination. However, because of the nature of the diseases affecting older persons, such as Alzheimer’s disease, physicians will continue to be called on to assess a person’s decision-making capacity. Assessment of decisional capacity is a functional assessment. Therefore, there is no substitute for a critical observation of the process itself.

Mini Mental State Examinations: challenges and limits

The MMSE has 11 questions that focus on orientation, registration, attention, calculation, recall and language. The test is scored out of thirty. The value of such testing is simply that it will screen an individual for cognitive impairment; for example, much like a simple blood test may screen an individual for diabetes.

A high blood sugar reading reveals that there is the presence of sugar (glucose) that can be detected in the bloodstream of the individual. Likewise, a score below a certain value on the MMSE is an indication of cognitive impairment. When high glucose is detected further, diagnostic follow-up is warranted before a diagnosis of diabetes is confirmed. Likewise, when an individual receives a score below a certain MMSE value (e.g. 23/30), further cognitive assessment and medical investigation is warranted.

For the legal community, it’s important to know that screening tests such as the MMSE are not shortcuts to a dementia diagnosis and cannot be used as measures of capacity (American Journal of Psychiatry, May 2007). The test serves to detect cognitive impairment. It is not designed to measure impairment that would affect the decision-making ability of a client to provide instructions to his or her lawyer. The limited scope of the MMSE has been recognized for many years by the medical profession (International Journal of Geriatric Psychiatry (1997) Vol. 12:101-108).

The value of lay evidence

As noted in Feeney’s Canadian Law of Wills (4th Ed.), there are a number of cases that show that the evidence of a layperson on testamentary capacity may carry greater weight than that of a physician. The key point is the opportunity and length of time that the layperson had to observe the testator and form an opinion about the testator. The value of lay evidence is even greater when the physician or medical expert has not examined the deceased testator personally, and is merely interpreting medical records in retrospect (see for example, Marquis v. Westin (1993), 49 E.T.R. 262 (NBCA).

What this means for lawyers is that while it’s helpful to have some knowledge of the various testing methods used by physicians, the responsibility to determine the competency of our respective clients remains with us individually as lawyers. We cannot shift the burden for this determination to physicians, and we certainly cannot delegate this responsibility to a screening tool such as the MMSE.

Editorial comment

By Jane Purdie, with assistance from Elizabeth Woodland, RN (elder health consultant). The author takes full responsibility for these comments.

The issue discussed in the above article was highlighted by John Phillips, co-chair in 2007 of the Southern Alberta Elder Law Section (recently deceased). In an August 17, 2007 Lawyers Weekly article, page 10, Phillips wrote:

Decision-making ability may be impaired for some types of decisions and functions but not so impaired in other areas as to justify a finding that the person lacks capacity to make any of their own decisions.

Most lawyers are familiar with the Folstein Mini-Mental State Examination [MMSE] as discussed in Desveaux’s article. The Family Physician Interpretation Guide, written by Dr. William B. Dalziel, who is now Chief of the Geriatric Program of Eastern Ontario, discusses in detail various capacity testing methods and indicates that MMSE “emphasizes the typical changes seen in Alzheimer’s disease (memory/orientation) as opposed to the early changes seen in non-Alzheimer’s dementias.”

This test does not focus on executive functions including SOAP – Strategizing, Organizing, Abstract Thinking, Planning – all those abilities that lawyers expect would be required to varying degrees for clients to have the competency to make legal decisions. 

The Family Physician Interpretation Guide: Common Cognitive Assessment Tests developed by Dr. Bill Dalziel, Chief of the Regional Geriatric Program of Eastern Ontario and Asssociate Professor, Division of Geriatric Medicine, University of Ottawa, refers to the Montreal Cognitive Assessment (www.mocatest.org) – “designed by neurologists and geriatricians as a rapid screening test for mild cognitive dysfunction.” Its strengths are that there is “minimal adjustment [needed to the results to take into account the] education [level of the patient]; and [it is] more comprehensive, but its weakness is that it is “less well known and takes a few more minutes to complete.”

For the elder law lawyer, requesting an assessment using MOCA might provide more insight into the client’s executive function rather than simply diagnosing memory/orientation deficits. However, as Jeanne Desveaux points out, the decision as to the client’s competency to make legal decisions rests with the lawyer involved in providing advice to that client.

Has your client purchased long-term care insurance? If so, your client has made a long-term commitment to spend a significant amount of money, monthly, on the premiums. Is that expenditure going to be worthwhile for your client? What do you need to know, as an estates lawyer, to answer that question, and why should you need to answer it at all?

The purchase of long-term care insurance interacts in at least two ways with the work of the estate planning lawyer. First, estate planning is not just estate planning, it’s disability planning. Our clients and the society in which they live want us to help them plan for those years when they are disabled, physically, mentally or both.

Second, a client who purchases long-term care insurance is being sold a means of estate preservation. Clients want funds to be available to meet their needs as they get older without having to encroach on the capital they are planning to pass on to grateful beneficiaries.

Many estate lawyers describe themselves these days as practicing elder law. But elder law is more than drafting wills and powers of attorney for elderly clients. Elder law involves identifying legal issues that are of particular interest to elderly clients because of their situation in life, and adding value to your work for these clients by giving them good advice on these issues. The purchase of long-term care insurance by clients is an emerging issue, in Canada, anyway.

In the U.S., where long-term care insurance has been sold and bought in greater volume for much longer, many issues regarding coverage have already been litigated. A recent United States Court of Appeals case, Milburn v. Life Investors Insurance Co. of America, 511 F.3d 1285 C.A.10 (Okla.), 2008, dealt with a fundamental question every purchaser of long-term care insurance should be confronting: what is this insurance going to cover?  In Milburn, it turned out that the insurance policy in question did not cover care in an assisted-living facility, only a nursing home.

Long-term care: definitions vary

So what does long-term care mean? It could mean care by a family member or private caregiver in your own home or their home, respite care, attending an adult day program outside your home, staying in a regulated long-term care facility or living in a retirement home while paying for extra care. Your client may be thinking of all of these possibilities when buying a policy. Are your client’s expectations going to match the coverage?

An examination of sample policies from two major Canadian long-term care insurance carriers illustrates the potential gaps between client expectations and coverage.

Both sample policies pay a greater monthly benefit if an insured is receiving “facility care” than if he is not. Yet the cost of staying at home and receiving care – in many cases the preferred option of the elderly – often matches or exceeds the cost of residential care.

The landscape of residential care available to elderly clients varies across Canada, but essentially there are two types:

• government-subsidized, regulated, statutorily defined, long-term care facilities, and,
• privately-owned, for-profit retirement or “assisted-living” residences, potentially governed by landlord and tenant legislation, where a resident can often receive a significant level of care, at extra cost.

In general, the latter is more expensive, but increasingly in demand by Canada’s elderly population because of their upscale, homey environments and less institutional feel.

Consumers don’t always distinguish between the different types of facilities, and clients may talk about “when I have to go into a home.” However, the distinction may be important in long-term care insurance policies. One sample Canadian policy specifically excluded a retirement home from its facility coverage. Another defined a “long-term care facility” such that some, but not all, retirement homes would be covered depending on how the care is provided.

Further, in both sample policies, coverage only extended to Canada and the U.S. If your client is planning to spend his golden years in the old country, that sojourn will be without long-term care benefits.

The paradox is that the type of client who can afford long-term care insurance premiums is exactly the kind of client most likely to opt for care at a home, higher end retirement-home-plus-care, or a villa in Tuscany.

Proceed with caution: review insurance policies

It is time for estate and elder law lawyers to educate themselves, and then their clients, about long-term care insurance. With insurance purchases essentially being made twenty years or more before the perceived need for coverage, every client needs to be advised that if the plan is to purchase long-term care insurance, a lawyer should review the policy first. Lawyers asked to look over policies should find out what their clients’ expectations are and then review the policy with the following questions in mind:

• When does coverage commence?
•  Where can long-term care be delivered?
•  What kinds of care are covered?
•  Who can deliver the care?
•  Will the client’s premiums be refunded if no claim is made?
•  And, critically, why does the client want long-term care insurance? Will the insurance deliver what the client wants?

Estate preservation may be a fine or even important goal, but it must be balanced against the objectives your clients have for the way they want to live before they die. That’s what disability planning should be all about.

The meltdown of the American subprime mortgage market has recently made worldwide headlines. Reading the press, it would be easy to think that this problem only affects large financial institutions and high-powered stock market investors. What does this international crisis have to do with senior citizen homeowners in Canada?

The Canadian Centre for Elder Law (CCEL) has released a new study paper investigating this question among others. The CCEL is the national, non-partisan organization dedicated to law reform and outreach on legal issues affecting older adults.

The CCEL’s study paper is specifically focused on predatory lending. In the United States, this scourge appeared as the market for subprime mortgages expanded in the 1990s and in this decade.

Subprime mortgages are mortgage loans made to people who have spotty credit records or who have not had the opportunity to build up a good credit history. The name “subprime” refers to less than ideal credit status of the borrower and not to the interest rate itself. In general, borrowers with the best credit records are able to get the best or “prime” interest rate. Borrowers with less desirable credit records have to pay higher rates of interest.

Seniors are tempting targets for unscrupulous lenders

The expansion of the subprime sector in the U.S. created opportunities for borrowers who otherwise could not obtain credit. But it also had a dark side. There was a rise in predatory lending—that is, aggressive, unfair, and deceptive practices and loan terms.

Unscrupulous lenders and brokers exploited borrowers in a number of ways. They steered borrowers into taking out high-cost loans that they could not afford to repay. They encouraged repeated refinancing of mortgages, taking a hefty fee for themselves each time. Or they packaged the loan with unwanted items, such as expensive life insurance policies or home renovation services.

Often these aggressive tactics were directed against seniors. Older adults proved to be a tempting target for predatory lenders for a number of reasons. They tend to own their homes outright, having paid off the original mortgage long ago. They often have to make do on a fixed income, and may sometimes need additional cash to make ends meet. And they may have gone a long time without needing to obtain a loan and may be unfamiliar with the credit market.

Victims of predatory lending: are there legal remedies in Canada?

The results of predatory lending can be catastrophic for senior citizens. A victim of predatory lending could be saddled with a crippling debt or even face foreclosure.

Could predatory lending take hold in Canada? Some people say that the inherent caution of Canadians is enough to protect us from the kind of crisis that occurred in the U.S. Other people note that our own subprime sector has been growing over the past few years and the value of our real estate keeps rising. The conditions that led to an upswing in predatory lending in the U.S. might be starting to form here.

Very little work has been done on how the Canadian legal system would respond to a crisis like the rise in predatory lending in the U.S. Do our laws adequately protect vulnerable borrowers? Can victims of predatory lending find remedies for their wrongs?

Before these questions can be answered, it is important to know how widespread predatory lending is in Canada. Unlike the U.S. market, which has been studied in depth, little is known about the scene in Canada.

The Canadian Centre for Elder Law would like to hear from readers about their experiences with predatory lending. Contact Laura Watts at: ccels@bcli.org, or visit our website for more information: www.bcli.org/pages/projects/predatory/Predatory_Lending_Study_Paper.pdf

This edition of the newsletter covers a range of issues arising in the practice of elder law. As a lawyer, you may have to give your input on the advisability of purchasing long-term care insurance or provide insight into the policy’s terms and conditions, test the competence of a client to sell a property, grant a power of attorney, loan money or provide instructions and execute a valid will.

Meanwhile, you must be alert to the fact that some decisions taken by an elderly patient may lack proportion – the gift that exceeds any stated rationale or the loan that would not make sense to a reasonable business person. The large population of baby boomers reaching their senior years will undoubtedly attract a group of convincing salespeople, con artists and fraudsters intent on taking financial advantage of this population.

Lawyers in the elder law field must be educated to recognize when a mental status test does not provide the answers to questions of functional competency, when insurance does not provide the coverage contemplated by the client, and how to safeguard clients against that “deal” that seems too good to be true. Alerting lawyers and the general public to these matters is an important part of the Section’s activities. We welcome your comments, responses and input.

A Section newsletter should normally include: legislative developments; judicial decisions of note; opinions and analysis; reviews of legal texts and other new developments including Section news.

I would urge all Section members to provide me with your submissions and shall be following up with the various members-at-large and Branch Section Chairs to expand our newsletter with succinct reports and commentary so we can learn from each other, celebrate shared successes and make efforts to support progressive legal changes for the elderly.

After sending out our first Elder Law Section e-newsletter in February, we discovered that the name we had chosen for the newsletter was a registered trademark of a seniors’ service in Alberta. Accordingly, we have sent out this edition under the name Elder Law News. Not too exciting.

So, we are holding a contest to “Name the Newsletter!” The prize for the winning entry is the honour and satisfaction of winning, the gratitude of the Section executive members, and a lasting claim to fame! Send your entries to Judith Wahl at wahlj@lao.on.ca no later than September 30, 2008. The Section’s officers will be the judges and their decision will be final.

The National Elder Law Section is seeking nominations for three Executive Member positions for the term September 1, 2008 to August 31, 2009. Candidates must be Section members at the time of nomination and throughout their term. Full details are on the Section webpage.

The National Elder Law Section is seeking your input to develop and enhance relevant services and to increase participation in programs offered.

If you have not had the chance to complete the survey, please take a few minutes to do so.