Mild Cognitive Impairment and legal decision-making

Care managers and Elder Law Attorney’s frequently encounter clients with cognitive impairment who have challenges related to their legal decision-making. 

These clients tend to fall into two categories: (1) Those clients who completed legal documents but whose agents do not know how to exercise their authority, and; (2) Those clients who never completed legal documents but who may still maintain the capacity to do so.

When opening a new case, one of the first questions a care manager will ask is about cognitive capacity and the legal structure surrounding the potential client.   If legal documents are in place, but the client’s family is unsure if now is the time to act on them, the immediate question which comes to mind is whether or not the elder is at risk either financially or physically. 

By forming a relationship with the elder and observing how he/she moves through their day over the course of the “getting to know you” phase, the care manager is able to ascertain the level of risk and set up a plan to mitigate that risk as quickly as possible.

If a primary care physician or neurologist has not assessed the situation previously, care managers are able to conduct a baseline assessment of cognition.  This must be done gently, honoring the older adults’ self-concept of independence as they are most likely not aware of their deficits and may feel threatened and defensive.  Oftentimes, the elder may be functioning optimally in their own structured environment, but slowly over time he/she has begun to lose executive function to navigate their day safely.  Frequently these individuals are oriented to date and time and may even retain extensive details about certain portions of their life, making it difficult for loved ones to be sure there is an actual problem.  Examples of this are often found with poor self-care, medication management, medical visit coordination and bill paying.  

If the elder is found to lack the capacity to navigate his/her world safely, and legal documents are in place, the care manager will work with the assigned “agent” to gently maneuver authority over to them without ever questioning the elder directly about his/her capacity.  There is an art to doing so and allowing a care manager to finesse this process requires time, a gentle touch and a lot of patience. 

Having completed a baseline assessment, the care manager will ensure that the necessary letters of incapacity are written by the requisite authorities in order to “spring” the power of attorney document in to action.

For those clients who have not completed legal documents but have begun to show cognitive decline, care managers can serve as a resource to elder lawyers in order to assess “situational cognizance”.  In this scenario, the relationship of trust is established between care manager and client with the short-term goal of identifying whether the client is oriented enough to sign legal documents – in the hopes of forestalling a guardianship petition needing to be filed. 

In some instances, a care manager has also been used to assess situational cognizance for shared long term clients with the goal of making discrete decisions related to estate planning or advanced directives Knowing our clients as well as we do, the care manager is often able articulate the client’s core values and allow him/her the ability to express their wishes to the guardian, thereby decreasing anxiety for the client who is situationally cognizant that they lack the authority to make their own decisions.

As care managers, one of the most important roles we play with our clients is to help them to maintain a sense of self-worth and autonomy.  Optimal quality of life is at the forefront of any coordination of care.  The collaboration between care managers and elder lawyers allows for the best possible outcomes for our shared clients with mild to moderate cognitive impairment. 

Whether through ongoing engagement or a short-term assessment, care managers provide valuable insight into your client’s cognitive journey and facilitate an elder lawyers optimal client advocacy.