There comes a point in every inheritance litigation when you have to decide whether or not to retain an expert. Do you want to spend the money? Do you really need an expert to win your case? Can you just have the treating physician testify? We recently interviewed a clinical neuropsychologist who has served as an expert witness in many inheritance disputes, Dr. Glenn Hammel.
Dr. Hammel has spoken at numerous seminars regarding how the conditions of aging impact brain functioning, vulnerability to elder abuse, and the ability to make decisions. We discussed with him the role and importance of an expert in inheritance litigation, with particular emphasis on the role of an expert in the cases involving allegations of lack of capacity coupled with undue influence. Read the highlights of our interview below.
Can you provide an overview of what happens in an aging person’s brain that can make them more susceptible to undue influence?
There are numerous neurobiological and social conditions that lead to someone becoming more dependent, and less self assured as one ages.
We have to proceed on the presumption that anything that diminishes a person’s self efficacy puts them in a position at the least of being frightened, and at worst, dependent on other individuals. A lot of the natural aging process can place an elderly person in such a position.
Decline can happen functionally (someone is limited in their cognitive ability, more helpless, less able to function) and socially (when one struggles with their place in the world, how they fit in, etc.)
You typically hear about Alzheimer’s disease in the elderly. But it is important to note that there are many types of dementia that are not called Alzheimer’s disease and that not all forms of dementia are the same.
For example, a vitamin B12 deficiency or a urinary tract infection can be accompanied by forms of cognitive diminishment. Positively, these conditions can be reversed once properly treated.
Depression is also a lesser known cause. With depression, an elderly person may show a greater amount of cognitive problems that can mimic dementia. This is called pseudo dementia, or geriatric depression. This type of dementia can also be reversed, with anti-depressive medications, and with therapy.
All of these conditions lead to someone, particularly an elderly person, becoming more dependent on another person, and less self assured. Even a relatively intact brain of an elderly person can become highly persuadable. This is due to normative age-related cognitive decline.
Undue influence can occur even if there is no diagnosis of dementia, is that correct?
Yes, there are a number of situations where someone can be unduly influenced even if there is no dementia diagnosis present. Just think Patty Hearst, for example (Hearst was kidnapped as a young woman by a group of armed radicals and then brainwashed into becoming a poster child for their revolution). A person with diminished cognition is simply more vulnerable than a person without.
Undue influence is not just over-persuasion. It is not merely a power differential. There is also a trust differential. The victim puts trust into the undue influencer. Conversely, the victimizer has no reason to place trust into the victim. Ultimately, the victim’s trust is misplaced.
Further, a person with diminished cognition or dementia is not just suffering from loss of sense of self. It is the dependency on another that is the key. There is a dependency on others psychologically as well as physically. Such circumstances lead a person to experience the world as they did in childhood.
What should parties and attorneys be looking for in medical records as clues for the susceptibility to undue influence?
There are many things to look for in medical records that could indicate the potential for undue influence.
We’ll start with the obvious – look for major neurocognitive disorder and/or dementia. You also want to look for other disturbances in cognition, marked by disorientation, confusion, language disturbance or perceptual disturbance, like hallucinations. Delirium is another cognitive indicator that could open the door for undue influence.
Look for subcategories of dementia, such as Alzheimer’s disease, frontotemporal lobar degeneration, Lewy Body Disease (which often accompanies Parkinsons), and traumatic brain injury. All of these are all indicators of a non-intact brain and rendering a person more susceptible to undue influence.
You also need to look for medications that can cause problems. An elderly person simply does not metabolize medications in the same way that a younger individual would. Even a variety of over-the-counter drugs can cause a cognitive disturbance in an elderly person.
When you look in the medical records, you have to ask what reduces that person’s ability to involve him or her self in the world with strength and self-efficacy. For example, someone with a hearing loss or a visual impairment maybe can’t drive or do bills. That person could also be socially isolated because of a hearing loss. Deafness, particularly geriatric deafness, can take us out of the world of interacting with other people.
Also, when going through the medical record, you have to see what degree anxiety is taking a role. What medications are being used to treat any anxiety? Many anti-anxiety medications can lead to fatigue, can reduce cognition, and reduce mental focus and concentration.
Finally, look at whether or not the individual believes they are going to die. Do they believe their lifespan is markedly attenuated? If a person is going through an existential crisis, any individual who offers soothing and makes them feel like they are not alone, can have a remarkable amount of influence.
Is a treating physician a more credible witness than an expert because they’ve actually seen the patient?
To analyze medical records and really explain how the information in the records can make someone susceptible to undue influence, you need an expert. A treating physician is not necessarily an expert on undue influence. You really need a neuropsychologist to link all of the information together.
The treating physician generally spends very limited time with the person. A caretaker could have filled out the forms. Doctors are far more adept at spotting physical abuse than financial abuse.
Again, a lack of obvious evidence of a dementia in the medical records does not mean an inability to be unduly influenced.
What do you do if you get medical records that look bare bones?
Medical records can be bare. Sometimes a person challenging a will sees that and thinks all is lost. But it is not. You hear a lot about the MMSE (mini mental status exam). I have seen attorneys wave around a record that shows a patient performed strongly on the MMSE and therefore could not have been unduly influenced.
But a simple MMSE can miss a wide swath of conditions, unless the person is moderate to severely demented. The MMSE is only a screening instrument. It cannot be used to rule in or out a dementia. It is simply not a diagnostic tool. Very often a physician will have about 15 minutes with a patient, without the opportunity for any deep analysis.
In a post mortem analysis, I gather as much information about the decedent as I possibly can. I might be limited to medical records. Usually, I can supplement the medical records with other records. I often will look at DMV records to see if they still drove. I try to get their check registry, to see if they were still writing their own checks, and where their money was going. I generally try to get a sense of who that person was, pre-mortem, as far as their basic life functioning.
Do you have any general advice about retaining an expert in inheritance litigation?
Generally, if you are challenging a will on the grounds of lack of capacity and undue influence, medical records are not enough at trial. Unless the medical records are out of the park obvious that the testator could not have orchestrated the preparation and execution of a will by themselves, you really need to retain an expert in your inheritance litigation to tie the medical records in with the psychology of undue influence. It’s the complete picture of the person, their life, their capabilities, and their fears that allows the undue influencer to take advantage of the situation.
Will contests are challenging. You are very often testifying against a drafting attorney (and possibly another expert) that says that the testator was perfectly fine and free from undue influence. But most attorneys are not engaging in a neuropsych assessment when a testator comes into their office.
You really need to assess what the records are showing you. It is important to remember that neurocognitive disorders frequently affect short term memory functions before long term memory functions. Long term memory-related behaviors include our social repertoire. So a person could be acting socially appropriate, but it is a total veneer and in fact, a cognitive disorder is lying just below the surface.
Therefore, someone who appears ok could actually be highly vulnerable to the powerful sway of undue influence. Having the trained eye of a neuropsychologist assess the testator’s capacity and susceptibility to undue influence I believe is one of the key components to prevailing in inheritance litigation.
Dr. Hammel’s biography and contact information can be accessed here.