What I Learned This Summer

I don’t know about you, but I spent my summer in one continuing legal education program after another. Here’s some of what I learned this summer.

What I learned in Alaska

OK — I really went to Alaska to see the bears. And they were incredible, and worth the trip. But while I was there, I attended a continuing education program that was almost as wonderful.

One program focused on posthumously conceived children. With advances in reproductive technology, the issue has become more significant over time.

The early cases testing the boundaries of the developing science were about Social Security benefits. A series of court cases addressed whether a child conceived using frozen sperm some years after the father’s death would be entitled to survivor’s benefits under Social Security. One 2004 case, arising out of Arizona, had held that they should receive benefits. Other cases, from Iowa and Virginia, held the opposite way.

Then, in 2012, the U.S. Supreme Court settled the question. In its ruling (in Astrue v. Capato), the high court held that a child conceived after its father’s death must be entitled to inherit under the relevant state law in order to qualify. In most states, that would rule out Social Security benefits for posthumously conceived children.

But that’s not the end of the story. That ruling has been the spur for a number of proposed changes in the law in various states. So far, those changes have not included Arizona, but other states have explicitly allowed posthumously conceived children to inherit from their deceased father, at least in limited circumstances.

Alzheimer’s and dementia in KC

One notable addition to what I learned this summer came in a trip to Kansas City. Dr. Jeffrey Burns, Co-Director of the KU Alzheimer’s Disease Research Center, spoke about dementia diagnosis and treatment.

While I already knew about much of what Dr. Burns described, it was very interesting to get an update on the research and science.  Some of his key points:

• Alzheimer’s Disease accounts for about 60% of all dementia diagnoses. The next-leading dementing conditions are vascular dementia and Lewy Body dementia, at about 15% each. Of course, some people might have more than one condition leading to dementia.
• About one in ten people over age 65 may have Alzheimer’s Disease. For those over age 85, frequency rises to about one in three. But remember: not all people with Alzheimer’s will show symptoms of dementia at the same pace. And the frequency increases very rapidly with age over the mid-60s; less than 5% of individuals in their early 70’s demonstrate any evidence of dementia.
• While the strongest risk factors for dementia might be age and genetics, there are a host of factors you can actually modify. Education, alcohol abuse, smoking, hypertension, obesity, physical inactivity and others all contribute to the likelihood of dementia. Even hearing loss and social isolation can add to your risk.
• The incidence of dementia is actually decreasing over time, though the incidence of Alzheimer’s Disease may not be decreasing. While it’s difficult to compare different generations at the same time, one 20-year study showed that those born after 1929 had a significant reduction in dementia compared to older cohorts.

What I taught in Michigan

Inspired by Dr. Burns, I prepared for a presentation in Michigan on the future of elder law. It gave me a chance to make several points I particularly like to emphasize with my continuing education audiences. And it also gave me a chance to talk about what I learned earlier in the summer.

To my audience of elder law practitioners in Michigan, I emphasized the often over-estimated incidence of dementia among the elderly. Since I turned 70 earlier this year, I posed the question to my audience (composed entirely of experienced elder law attorneys): what are the odds of a 70-year-old demonstrating evidence of dementia? In other words, what percent of people of that age are showing signs of diminishing mental capacity.

As is almost always the case, my audience responded with enthusiasm — and with too-large numbers. “20%,” shouted the first person. Then I heard “30%” and “40%”. Almost all the shouters were in the 20-40% range until one person (I’d like to think it was someone who had attended an earlier presentation of mine) shouted “5%”. That was the winner, though actually the number is slightly lower than even that figure.

Dementia does increase rapidly in one’s 80’s and 90’s. One expert has suggested that the frequency about doubles every five years or so thereafter. But even with steep increases by age, only about 30% of people over age 90 will show evidence of dementia.