Estate Planning and Behavioral Variant Frontal Temporal Dementia

legal Older adults with offensive behaviors may have a diagnosis of bvFTD, behavioral variant frontal temporal dementia, or a mental illness like schizophrenia.

What if the amazing, outspoken, no longer politically correct, older adult who walks into your law office today might have a diagnosis of bvFTD or something else— possibly a mental illness? As an estate planning professional, what experience do you have recognizing the different types of dementia like BVFTD or a mental illness like schizophrenia?

bvFTD: Behavioral Variant Frontal Temporal Dementia

bvFTD is a variety of frontal temporal dementia with symptoms not associated with memory loss. How might an estate planning document for a client with this diagnosis hold up in a power of attorney abuse case or a contested guardianship hearing if you drafted documents believing your client to be a little mean but otherwise as normal as the next person?

Could you prove at the time the documents were executed that your client was a little mean but did not exhibit threatening behaviors, harm others, or self-neglect? What if, shortly after drafting estate planning documents, you receive a call from adult protective services that your client had violently threatened a neighbor or walked half-naked onto the playground of an elementary school?

How will you respond at a will contest after your client dies when estranged family members want to receive the estate proceeds instead of charities designated by your client? Will the power of attorney agent and subsequent personal representative have enough documentation to prove that this is what your client wanted without any reasonable doubt?

What can you do to recognize unusual client characteristics so that you can do right by your client with early behavioral variant frontal temporal dementia so that their wishes for care and their estate are honored?

What if a family member agrees to be appointed as an agent under power of attorney but has no knowledge about dementia or navigating the healthcare system, which will be a necessity? How do you protect your client from unintentional neglect due to inexperience or poor conflict resolution skills?
Can your client appoint a co-power of attorney or a power of attorney protector who is a professional with experience to advise the family agent and serve as a voice of reason when this family caregiver is at their wits’ end and does not know how to manage?

To learn more about support for family members appointed as agents who lack experience in dementia or healthcare, complete this contact form and check the box inquiry about power of attorney protector or advisor service.

Should Attorneys Wonder About Clients Who Speak Their Minds?

Eighty-five is the age, according to the Alzheimer’s Association, that persons are 33% more likely to have a dementia diagnosis. This leads to a theory that memory loss and being an older adult are close partners. The difference is that persons with bvFTD have little or no memory loss, but they exhibit behaviors that can be associated with Alzheimer’s and other types of dementia.

Should you question if an older client with odd or inconsistent behaviors has the capacity to create estate planning documents? Is getting older the time when adults become outspoken and comfortable saying whatever they want because they can, so this characteristic can be overlooked?

Does saying whatever one thinks have hidden consequences that should be concerning? And what is the politically correct term for aging clients who are a little out of character? The terms used to be old, crazy as a bat, or senile.

In 2017, the Journal of American Geriatrics Society changed how contributors should write about older people (1). The term older adult was chosen to avoid negative stereotypes about aging. The American Society on Aging uses older adults on its website and retains the name Society on Aging. The Center for Elders and the Court’s website uses elders, older adults, and older persons. behavioral variant frontal temporal dementia

Estate Planning and Mental Capacity

Estate planning requires a degree of mental competency or capacity on the client’s part to understand the plan’s implications and the document being signed.

What happens when a client walks into your office, and you do not know what (or who) is showing up today? Is it the mild-mannered Mrs. Smith or her alter ego who is mean or makes inappropriate jokes or sexual remarks to you or your staff?

This sweet older lady or gentleman you first met years ago has changed significantly and now possibly presents with bvFTD behavioral variant frontal, temporal dementia.

Today, this client tells you to draw up a new estate plan that disinherits all of their children and gives their money to a famous actor who is a close friend. If your memory serves correctly, this actor has been deceased for several years.

Are you mildly hesitant? How do you handle the situation knowing that your first responsibility is to your client?

Politically Incorrect Older Adults Versus Others With bvFTD

How many older adults do you know who say what they want? They don’t worry about who might be offended. Like children, they say what they think without thinking.

Years ago, at least three, if not more, outspoken comediennes played politically incorrect older adults on television. Take a quick trip down memory lane and click on their names to watch a short video clip.

Do you remember:

Gilda Radner as Roseanne Rosannadanna (2),
Lilly Tomlin as Ernestine the Telephone Lady (3), and
Dana Carvey as the Church Lady (4)?

What if any one of these characters showed up at your law firm?

Noticing Signs of bvFTD Behavioral Variant Frontal Temporal Dementia

The Association for Frontal Temporal Degeneration (5) confirms that, unlike Alzheimer’s disease, which affects memory, bvFTD spares memory and results in behaviors. Below is a list of behaviors associated with bvFTD that are often confused with psychiatric disorders.

Paranoid or delusional behaviors
Verbal or physical aggression
Inappropriate behavior
Agitation and mood swings
Repetitive behaviors
Declining social skills

Close Kin: bvFTD and Schizophrenia

Attorneys working in estate planning, elder law, or probate may work with children seeking guardianship of a parent diagnosed with dementia or work with clients for whom a professional guardian or conservator is appointed.

In my experience as a guardian, clients with a dual diagnosis of mental health and dementia were common. The challenge was deciding which diagnosis came first and obtaining treatment for either symptom. Few medical professionals felt qualified to stake a claim on a primary diagnosis.

Psychiatric hospitals did not want to accept my clients with a dual diagnosis of dementia and mental illness. Estate planning attorneys and guardians struggle to help these clients because the healthcare system struggles to diagnose and more than often refuses to admit them for treatment due to protections for individuals with a mental illness.

According to Neurocase (6) research confirms that the symptoms of bvFTD in about 50% of cases overlap with an initial psychiatric diagnosis. The opposite also occurs. The consensus for bvFTD is that behaviors are primary and should not be better described by a psychiatric condition.

Diagnosing bvFTD

In situations of multiple diagnoses, the wise action for the estate planning, elder law, or probate attorney is to work with the client to obtain a definitive diagnosis. Multiple appointments with a neuropsychologist and a psychiatrist may be necessary to get closer to a diagnosis but can support the creation of a solid estate plan if the client is still able to evaluate and direct their care and make decisions.

A PET scan or an MRI may be beneficial. Blood work to identify the presence or absence of the APOE4 gene, a gene related to Alzheimer’s disease, can eliminate an Alzheimer’s diagnosis and point to the possibility of bvFTD, which is a progressive disease that is very difficult to diagnose

Reviewing medical records may also include mention of unusual behaviors or behaviors related to a mental health concern. Apathy and inertia may also be early signs in a person who seems less interested in prior activities but more agitated or verbally and physically inappropriate.

Collaboration between the specialties of neuropsychology and psychiatry may be necessary to determine which came first, the BVFTD or the mental health condition, if one co-exists.

Knowing the diagnosis can support an estate plan that avoids unexpected challenges. Being proactive can make it easier to appoint a family power of attorney agent who later may become a guardian or conservator.

Having a diagnosis will make creating a care and financial plan easier. If family members are involved, they may become more understanding and less critical about a loved one’s odd behaviors if they have a greater understanding of the diagnoses and access to professional advice.

When appointed in any legal role and a formal diagnosis of bvFTD is available, family members can more confidently perform their responsibilities. Few clients want to purposely place their family caregivers in a position of stress or anxiety due to an advancing and irreversible cognitive condition.

By discussing the role of a family member as an agent, coupled with the professional support of a co-agent or a power of attorney advisor, a thoughtful plan can be put in place to ensure the implementation of the client’s best care and financial wishes that can avoid family disagreements or potential neglect by an agent who lacks the experience to navigate complicated situations and decision-making.

Looking for More Practical Advice About Caregiving, Aging, and Health. Check out Pamela’s Online Webinar Program.

Sources:

(1) Editorial. When It Comes to Older Adults, Language Matters: Journal of the American Geriatric Society Adopts Modified American Medical Association Style. JAGS 65:1386-1388, 2017. Doi: 10.1111/jgs.14941.

(2) Radner, Gilda. Weekend Update: Roseanne Rosannadanna on Smoking -SNL. 11/18/78. https://youtu.be/9hYGtXIqDa0

(3) Tomlin, Lilly. The Telephone Operator Calls General Motors. 3/20/17. https://youtu.be/RT4__Nz5HWY

(4) Carvey, Dana. Oprah Winfrey: How Dana Carvey Created His Most Famous Characters. The Church Lady and Others. 2/14/15. https://youtu.be/IXG5EluavRM

(5) The Association for Frontal Temporal Degeneration. Behavioral Variant FTD https://www.theaftd.org/what-is-ftd/ftd-disorders/behavioral-variant-ftd-bvftd/

(6) Kerssens, C.J. et al. Schizophrenia as a Mimic of Behavioral Variant Frontotemporal Dementia. Neurocase, 2016 June; 22(3): 285-288 doi: 10.1080/13554794.2016.1187178

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