April 27, 2018 With over 70 million Baby Boomers retiring, elder financial exploitation has been labeled the “Crime of the 21st Century.” In this half-day event, we will explore the neuroscience, psychology, and legal doctrine of financial decision-making in older adults. How does the aging brain make financial decisions, and when is it uniquely susceptible? How can courts best use science to improve their adjudication of disputes over “competency”, “capacity”, and “undue influence”? Is novel neuroimaging evidence of dementia ready for courtroom use? This conference brought together experts in medicine, science, and law to explore these important questions and chart a path forward for dementia and the law. For more information, visit our website at: http://petrieflom.law.harvard.edu/events/details/our-aging-brains

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2. The Center for Law, Brain and Behavior
at Massachusetts General Hospital
Visit our website: www.clbb.org Follow us: twitter.com/mghclbb
The Brain Matters. Science Matters. Justice Matters.
View past events: vimeo.com/clbb
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Judith Edersheim, JD, MD Bruce H. Price, MD
Translating Neuroscience into Action

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4. Cognitive Continuum
Normal Aging
MCI
Dementia
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5. Cognitive Performance over the Lifespan Occurs in Two Key Categories
• Crystallized intelligence (solving a familiar problem: skills, knowledge, experience)
• Crystallized intelligence rises until the 60’s
• Fluid intelligence (solving novel problems: thinking fast, flexibly, and creatively)
• Fluid intelligence starts falling quickly at age 20
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8. Figure from: Park DC, Bischof GN, The aging mind: neuroplasticity in response
to cognitive training. Dialogues Clin Neurosci 2013 Mar: 15(1): 109-19.
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9. Financial Challenges at 65 and Beyond
• Retirement
• Fixed income
• More funds needed for daily
expenses
• Unpaid debts, loans, supporting
other relatives
• More needs of family members
• Relocation/downsizing
• Refinancing mortgages
• Estate Planning
• Business Succession
• Asset Protection (Home, Savings,
Investments)
• Charitable Planning
• Long Term Health Care
• Medicare Planning/Declining
Health
• Assisted Living/Nursing Facilities
• How much longer will I live?
• Will my savings last?
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10. Wesley Ernest Brown was a U.S. District Court judge who, as of his death at 104, was the oldest federal judge still hearing
cases. Wikipedia
Born: June 22, 1907, Hutchinson, KS
Died: January 23, 2012, Wichita, KS
Education: University of Kansas, University of Missouri–Kansas City School of Law
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11. WHAT IS WISDOM?
• An elusive, difficult to define quality regarding the highest level of potential that the human
mind can achieve
• The search for essential, transcendent truths
• An inherent, intuitively recognizable quality that transcends periods or styles
• The elusive art acquired on the long-term path toward genuine compassion
• An earnest acceptance of life’s pains and promises
• The ultimate refinement of intuition
• The great capacity for judgment
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12. Wisdom is…
• Rare
• Contextual
• Enduring
• Practical
• Generalizable
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13. “The same level of thinking that got you into the problem
is never the same level of thinking to get you out.”
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Albert Einstein
1879-1955

14. Wisdom is not…
• Being perfect and knowing everything
• Hard wired, predestined, divine or genetic
• Derived from self alone or learned in the classroom
• Directly related to age, education, IQ, or predictable by current
neuropsychological instruments
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15. Cognitive Continuum
Normal
MCI
Dementia
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17. Behavioral & Cognitive Correlates of MCI
• Impaired awareness
• Depression (20%), apathy (15%), irritability (15%)
• Diminished complex decision-making capacities including medical and
financial decisions
• Increased risk of motor vehicle accidents
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18. Complex Decision Making Capacities That May Be Affected By
Mild Cognitive Impairment
• Response to emergencies
• Pilot or drive transportation vehicles
• Make medical decisions
• Manage complex medical treatments
• Stand trial
• Testify as a witness
• Qualify as a juror
• Handle firearms
• Fulfill social and occupational roles
• Engage in intimate, sexual relations
• Resist undue influence over personal decisions
• Execute a will and last testament
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19. Factors Which May Obscure Early Recognition of AD
• Intact social graces
• Intact personality structure
• Preservation of most activities of daily living
• Overestimation of their own cognitive skills
• Masking, compensatory behaviors
• Acceptance as normal aging
• Denial, fear, therapeutic nihilism by families, friends and physicians
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20. Cognitive Continuum
Normal
MCI
Dementia
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22. Dementia Indicates Impairment Of Daily Functions Due
To Problems With Thinking And Memory
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23. Early signs of cognitive problems
• Forgets important information that he or she would
previously have easily recalled, such as appointments,
conversations, or recent events.
• Experiences a reduction in the ability to make sound
decisions (e.g., victimized by internet scams).
• Difficulties judging the time or sequence of steps needed to
complete a complex task (e.g., misses flights).
• Loses the ability to perform spatial reasoning (e.g., starts to
have lots of fender benders).
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Adapted from Bruen PD, McGeown WJ, Shanks MF, Venneri A. Neuroanatomical correlates of
neuropsychiatric symptoms in Alzheimer’s disease. Brain. 2008 Sep;131 (Pt 9):2455-63

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26. Age is the biggest risk factor!
The Prevalence of Dementia essentially Doubles every 5 years after the Age of 65
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Prevalence rates of dementia

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Women are at higher risk for Alzheimer’s Disease

28. search studies, engaging in legal contracts, making financial decisions,
voting, operating a motor vehicle,
• Domain specific, adequate data is lacking regarding the effects of early
neuropsychiatric changes on functions such as medical decision making,
consenting to medical research studies, engaging in legal contracts, making
financial decisions, voting, operating a motor vehicle, resisting undue influence
and composing a last will and testament.
• Some instruments exist, but are not widely used. Why not?
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29. • Family members, legal authorities and health care providers may
erroneously conclude that complex judgment and decision-making
remain intact from adequate performance on tasks of orientation,
memory, and calculations
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30. • Medical and legal frameworks for evaluating and determining
competence to perform these life activities vary greatly amongst specific
tasks and differ from state to state with few agreed upon medical or legal
guidelines.
• This results in a wide spectrum of accepted, common medical and legal
practices which may yield widely varying outcomes, often to the
detriment of the patient and their family.
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31. Most internists, neurologists, psychiatrists, and neuropsychologists do
not understand undue influence, its assessment, or how to help
prevent future exploitation.
There are currently no reliable domain specific instruments to assess
undue influence.
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The Health Care Provider’s Dilemma

32. Magnitude of the Problem: Facts to Remember
• 10,000,000 Americans have Cognitive Impairment or Dementia
• 50% of the U.S. population in their 80’s suffers from significant cognitive impairment
• 2,000,000 new cases of dementia are diagnosed in the U.S. every year
• 10,000 Americans turn 65 every day
• Over the next 50 years, $41 trillion will be passed down from the estates of the elderly in the U.S.
• Many elders do not obtain necessary medical and social support due to lack of known resources,
diminished cognitive capacities, embarrassment, fear of retaliation, not knowing where to turn, and
outright refusal of care
• Nevertheless, our existing legal protections are greater for 50 year olds than 90 year olds. In
contrast, all 50 states have statues to report child abuse and abuse of individuals with intellectual
difficulties
• It is important to plan for the possibility of your own cognitive impairment
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33. Resistance in Planning for Cognitive Decline
• Lack of meta-cognition My memory is fine.
• Desire for control I want to keep driving.
• Over-optimism I won’t develop dementia.
• Procrastination I’ll do it next month.
• Aversion to complexity A living revocable trust?
• Planning for cognitive decline Costly and Frightening.
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