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Dementia: Facts, Figures and Legal Effects

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At a seminar for lawyers and accountants last week, our ears pricked up when we heard a speaker say: “remember, something like 60% of your clients over 75 suffer from Alzheimer’s Disease.” (OK — that might not be an exact quotation, but that was the sense of the observation.) That made us sit up straight, and dive into an online search. That number seemed high — and it was.

Not to take anything away from the problem of dementia among elderly clients. It is a common concern, and it appears far, far too often. Lawyers’ and accountants’ clients too often wait to take care of things they should deal with until they are no longer able to make complex decisions. Elderly clients are too often frail — both mentally and physically — and are susceptible to financial exploitation or physical abuse. Very few of the educated, committed professionals in the room were qualified to recognize, much less diagnose, dementia. So the problem is very real, and more emphasis should be given to the prevalence of dementia among the elderly.

At the same time, there is a danger in the opposite approach, too. We see plenty of bright, capable, engaged seniors whose family have decided that they are too old, too frail, even too demented to make their own decisions. We constantly struggle against marginalization, sequestration, even infantilization of seniors. So we think it’s important to keep in mind that most seniors are NOT demented, even though a significant percentage do have problems with memory and reasoning. We also think it’s important to note that even a diagnosis of dementia does not mean the patient (our client) can not make any decisions.

We vividly recall an older couple, married for fifty years, who came to see us for a review and possible revision of their estate plan. They hadn’t been in the office for about five years, and we were delighted to catch up with them. Both husband and wife were engaged in our conversation, both laughed easily, and both remembered all the important details of their lives necessary to handling revision of their estate plans. When we got down to details, the wife could explain why they had come to the office, what changes they were considering, and what effect those changes might have on her (and them).

As we finished up our discussion, the husband quietly pushed a pill bottle over for our inspection. It was for a well-known drug usually prescribed to early dementia patients. It took a few moments to figure out how to address the implied statement, but finally we asked: are you showing us this because you worry that your wife is not able to make changes in her estate plan? Because if so, you should have no concerns. She clearly understands the discussion, and it is apparent that she not only agrees with your proposed changes, but even initiates discussion and explains her views. All that was said, of course, to both clients, and without marginalizing the early-dementia patient’s involvement.

It is critically important — for their sakes and for our collective humanity — that demented individuals be allowed and encouraged to participate in their own planning. It is dangerous to spend too much energy on the likelihood of dementia, or the typical stages of the condition. But it is also important for professionals to know what is out there, and what to watch for.

So what is the actual incidence of dementia in the older population? The best resource is the excellent annual report of the Alzheimer’s Association — the leading American organization dealing with this debilitating disease. You can find links to the current annual report on the Alzheimer’s Association website — as we write this, the 2013 report is current. You will find the report interesting reading, but we are prepared to synopsize some of its findings for you:

  • The incidence of dementia is hard to pin down. Especially in the early stages, as many as half of demented individuals do not get diagnosed at all. Extrapolating from a Chicago study and analysis of national data, the Alzheimer’s Association estimates that about 14% of individuals over age 71 suffer from dementia. That’s not quite the same age as the one used by the speaker who caught our attention, but it does indicate that something like 1 in 7 of clients over 70 should be expected to have dementia.
  • Even among clients over 85, the Alzheimer’s Association calculates that the incidence of dementia is only about 1 in 3. Going the other direction, it is about 1 in 9 for those aged 65 and older.
  • Obviously, there is a very strong correlation between age and the dementia diagnosis. Remember that the figures described here (1 in 9 of those over 65, for example) include potential clients in their late 90s, with a much higher incidence. So maybe it is more useful to look at the question from the other direction: if you are 75 this year, for example, you might want to know what the odds are that you will be diagnosed with dementia before your death. The answer: well, it depends on whether you are a man or a woman — there is about a 10% chance if you are a man, and an 18.5% chance if you are a woman.
  • Alzheimer’s Disease is the most common condition leading to dementia among the elderly, but it is not the only one. Vascular disease (often described as a series of small strokes) is another leading cause, and there are others. One distinguishing characteristic: Alzheimer’s Disease may first appear as memory loss (especially short-term memory), while vascular dementia may first appear as impairment of judgment or the inability to make plans.
  • An Alzheimer’s diagnosis also indicates a shortened life expectancy. This is complicated to explain, but here’s what the report notes about one representative age group: “Among people age 70, 61 percent of those with Alzheimer’s are expected to die before age 80 compared with 30 percent of people without Alzheimer’s.” Presumably, similar statistical changes would appear for other age groups.

The report is fascinating, and now we think every professional dealing with seniors should look it over. We’ll be passing it around our office and discussing its meaning for our clients and our practice. But we hope to keep this key point in mind: it is not statistics or probabilities that should drive our representation, but individual people.


2 Responses

  1. What a great article! As a professional who works with seniors and as a caregiver of a parent who’s been on Namenda for four years, I echo all your comments and most especially the need to meet the client where s/he is, not based on some stereotype of aging, but on the individual’s abilities, wishes, and state of mind. My dad may forget where we are going that day, but he can tell you the names of every student in his eighth grade graduating class. It is a condition much more subtle than many recognize.

  2. I’d echo what Lorraine Glazar says. The condition is subtle and many AD patients work hard to hide their fading abilities. Attorneys need to watch for red flags that may indicate exploitation. Has a third party made the appointment? Does someone other than the elderly couple speak for them? Do they have any medical conditions that they want their attorney to know about? Those 3 questions would have saved my mother from exploitation by a step-son. Instead she was wiped out just when she needed her money for a care facility.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.