Lawyers who practice in the area of Wills and Estates frequently consider and examine the issue of capacity.
Mostly, the issue arises with clients’ abilities – to make a Will, to make a gift, whether they were coaxed into taking a step (such as giving someone Power of Attorney) they would otherwise not likely have taken, and so on.
Lawyers are permitted to make capacity assessments and we do it every day, with people making Wills and so on. It is an issue we face more frequently now.
With the rising proportion of older people across the world, the amount of research into capacity, and more particularly into diseases such as dementia (and its most well known sub-type, Alzheimer’s) seems to be increasing.
The problem we face is how to deal with the rising rate of dementia. Put another way, how will we treat, house and otherwise look after the wave of people with dementia now upon us?
The answers will come, but not too soon. The research is fascinating, and so are the stories at an individual level. Here is some recent work.
The Older Mind
A recent article in the New York Times revealed some surprising news about memory. Apparently, the speed and accuracy of memory start slipping at age 25. But the article discusses an aspect of cognitive decline called data mining.
Researchers in Germany experimented with word retrieval. Older people, they postulated, know more words than younger people because they have been alive longer.
An experiment looked into what an older brain has to do to retrieve a word. When researchers incorporated the knowledge of more words (for older people relative to younger) into word retrieval for aging people, “deficits” in advanced learning in aging people seemed to disappear.
The lead author of the research, Dr. Michael Ramscar, said: “What shocked me, to be honest, is that for the first half of the time we were doing this project, I totally bought into the idea of age-related cognitive decline in healthy adults. But the simulations fit so well to human data that it slowly forced me to entertain this idea that I didn’t need to invoke decline at all.”
While this German study may appear revolutionary, the writer of the article (Benedict Carey) suggests that the study will not overturn a century of research.
Neuroscientists believe neural processing speed slows with age, and anatomical studies suggest the brain undergoes structural changes that could affect memory. But, the study will likely help challenge how steep age-related decline really is.
Dr. Laura Carstensen, a psychologist at Stanford University, has found that the aging person becomes biased in their memory toward words and associations that have a positive connotation. However, many studies put older people at a disadvantage because they don’t take that bias into account.
The article also discusses two types of intelligence that scientists investigate. The first is known as “fluid” intelligence. This is seen in short-term memory, analytical reasoning, and the ability to tune out distractions.
The second is “crystallized” intelligence: accumulated knowledge, vocabulary, and expertise.
Dr. Zach Hambrick, a Michigan State University psychologist, concludes that in the German study, they argue that an increase in crystallized intelligence can account for a decrease in fluid intelligence. Dr. Hambrick’s studies show that crystallized intelligence climbs sharply between ages 20 and 50, then plateaus, as the fluid intelligence drops steadily, by more than 50% between ages 20 and 70.
It will take time (and more studies), says Dr. Hambrick, to see whether one type of intelligence affects the other.
For now, the challenge to the knowledge of cognitive decline can explain “senior moments.” In other words, the author concludes: “It’s not that you’re slow. It’s that you know too much.”
Where Memories Go
Mamie Baird Magnusson might have been a good person for Dr. Hambrick or Dr. Ramscar to have as a participant in their studies. She is the subject of her daughter Sally’s new book, Where Memories Go: Why Dementia Changes Everything.
The senior Ms. Magnusson was born in Scotland in 1925. Her early talent as a journalist got her a job at the Sunday Post, and in 1947 she moved to the popular Scottish Daily Express in Glasgow.
She met a fellow journalist there (Magnus Magnusson), and married him in 1954. The couple had five children (Sally is the eldest). Ms. Magnusson enjoyed a prolific career as a journalist, writer and mother. Mr. Magnusson died of cancer in 2007, and Ms. Magnusson died of Alzheimer’s disease in 2012.
Sally Magnusson is a well-known TV reporter in Scotland, for the BBC. When her mother showed signs of dementia, she started writing, perhaps in an effort to cope with the disease that took hold and caused her mother to slip away.
She writes in the book (after an incident in which her mother did not recognize her, and angrily rebuked her greeting): “I have a sudden impulse to rush around the house waking up those five grown up children of mine, all gathered under one roof for Christmas. I want them to know that what is in my own heart for them at this moment is me, the essence of me. Does this make any kind of sense, Mum? I am asking them to believe that if this disease should one day hunt me down, if it should ever cause me to stare into their eyes with the icy dislike I saw in yours, it comes from a diseased brain and not from the place I will call my soul, which is theirs for ever. […] This is the moment, in a cold house in the early hours of Christmas morning, that I realize it is the same for you. Whether or not I ever see another sign of it, you love me. Of course you do. Brain experts may shake their heads, but I don’t care. This is heart-sense. I have you safe in my possession. You are you.”
The book eloquently shows the strength of the bonds in this special family, and how arduous was the journey of the mother and her family during her steady decline.
To be sure, there is a long way to go on the road to discovering successful treatment(s) for dementia-type illnesses. But the quality of research illustrates that we are on the road.
Meanwhile, Ms. Magnusson’s book vividly portrays the struggle so many families face when a member is afflicted.
In the legal profession, capacity is now a more significant topic for discussion and analysis than ever before. The (perhaps growing) challenge for a lawyer lies in assessing whether, at a certain point, a person has the necessary capacity to make a document, exercise a judgement, make a gift, and so on. It’s a problem we will see more often.
This column ran in the Richmond Review on February 5, 2014.