As we’ve mentioned previously in this blog, the reluctance to assertively declare that a patient is suffering from Alzheimer’s does impact the course of will contest litigation. Despite the prevalence of Alzheimer’s disease, there are many flaws in the diagnosis. There are two main areas where diagnosis of the disease sees challenges. The first, physician reluctance to diagnose the disease, resulting in delayed diagnosis by an average of 2-3 years after the onset of symptoms1. Such reluctance and delay has obvious, and large, impacts to the challenge of a will based on lack of testamentary capacity. The second is inaccurate or faulty diagnosis of the disease. Both of these situations greatly affect parameters of law, especially will contests. Foremost, if Alzheimer’s disease is present during the preparation of a will, but not yet diagnosed, the testator’s reasoning behind the document may be unsound — consequently, capacity could be lacking much earlier than previously known. And of course if we are dealing with a misdiagnosis, the will in question perhaps has grounds to be contested. For example, a misdiagnosis of some other condition that improves versus Alzheimer’s, a progressive disease, could dramatically impact the validity of a will and give rise to grounds for challenging a will.
The current diagnostic approach to Alzheimer’s diagnosis is a structural CT scan and / or MRI with screening lab blood work. This is typically combined with personal history and accounts from the patient and caregivers. However, these scans and others are not always available due to cost and other limitations. Because of the limited diagnostic capabilities, physicians do not always feel comfortable handing down a clinical diagnosis of Alzheimer’s disease. This reluctance results in a delayed diagnosis until symptoms are so prevalent a diagnosis cannot be overlooked. One study evaluating clinical diagnosis1 found that up to 50% of patients with any form of dementia are not formally diagnosed during life. Imagine such a patient executing a will!
The other side of the coin is not only is there a delay in diagnosis, but there is evidence that diagnosis of Alzheimer’s disease can often be quite inaccurate, due to faulty or inconclusive diagnostic tests. Twenty-five percent of patients clinically diagnosed with probable Alzheimer’s disease did not have evidence of the disease at autopsy. This all despite the fact that we have many definitive tests available to us today to help in diagnosis. Some are costly and others have simply not gained widespread popularity.
All of this data points to how imperative it is that clinical diagnosis be improved, without increasing costs prohibitively. According to an article in the journal of Neurology and Therapy the approach to diagnosing Alzheimer’s disease has been by excluding other health conditions. The article states that it’s time to shift to making the diagnosis of Alzheimer’s disease a diagnosis of inclusion, with a tiered approach, incorporating questionnaires and biomarkers.
Technology has greatly improved the diagnostic accuracy of Alzheimer’s Disease. The aforementioned article proposes a novel algorithm that incorporates a structured history, an aggregate risk assessment, a cognitive screening measure, a thorough neurologic examination and the incorporation of biomarkers such as APOE genotyping (the risk for developing AD for a patients who is homozygotic for this gene is 91%) and immunomagnetic reduction technology. The use of this algorithm could improve the accuracy of a diagnosis of dementia due to Alzheimer’s disease up to 90% without escalation of costs. And the tiered approach would allow for additional tests as needed.
Knowledge is power and assurance in diagnosis offers medical advantages and more favorable outcomes, not to mention peace of mind for sound estate planning to avoid inheritance disputes.