Capacity, Wills Variation, Undue Influence, Unjust Enrichment (Part 1 of 2)

Earlier this week, extensive reasons for judgement were released in the case called Wiseman v. Perrey and others.

This Supreme Court of B.C. case involved a mother who passed away in 2008, survived by her husband of 37 years and two sons (from a prior marriage). In the year before she died, she expressed the desire to benefit her two sons, but not her husband. She transferred most of her assets to her sons.

The deceased also gave one of her sons Power of Attorney, which angered her husband. She owned a variety of assets including land, an RRIF, bank accounts and investments, although the total value of the assets was not overly large.

The husband challenged the Will that his wife had executed, the transfer of the assets (to the sons of the deceased), and everything else. If the Will was valid, he sought variation. I expect this case will be good authority in this area of law.

Next week, the decision.

This ad appeared in the Richmond News on December 7, 2012.

Nutrition and Capacity: a Conference (who knew?)

I attended a meeting earlier this week, where the main speaker discussed the importance of lawyers and doctors communicating more fully (in “the same jargon”) about patient capacity. As life expectancy rises and our population ages, more and more people will be living longer, and many will develop capacity troubles.

What does capacity mean? In general, it refers to a person’s ability to understand what they are doing, and the consequences of what they do. For lawyers, capacity becomes especially significant when preparing Wills and incapacity planning documents, such as Powers of Attorney, Advance Directives and Representation Agreements.

Many factors influence a person’s capacity. Age is certainly one of them. But I doubt that many people think of nutrition as affecting capacity — when it may play a larger role than we think. Recent stories from a conference, and studies on the topic, made me think it is worth examining.

The Conference
“Issues in Nutritional Care of the Geriatric Patient” is the conference that took place earlier this month at a geriatric hospital in Israel. Like Canada, Israel has an aging population, and it is felt that properly feeding elderly patients will become a key practice in the future.

At present, 10% of the population in Israel are elderly, and half suffer from two or more chronic diseases. Their health care costs constitute 30% of all public medical expenditures.

Successful treatment will not only improve their quality of life, but also save medical costs. The elderly are thought to have different illnesses and different metabolism from children and adults. Again, I expect the situation is not too different here in Canada.

Hospital treatment
On admission to a hospital in Israel, patients are first seen by a dietitian. The dietitian determines (among other things) what the person likes to eat. The hospital serves three main meals and two smaller ones per day.

Staff and family members are encouraged to feed patients by hand, rather than through a feeding tube. Research is being done on this practice as well.

The clinical part
Surprisingly, though many studies show that special diets limiting fat, salt, sugar or protein can be effective in treating chronic diseases, little information exists about the effects of a particular diet on elderly patients. Most of the research is done on persons under age 65.

For some patients above 65, certain conditions require specific (controlled) levels of salt and sugar. A poor state of nutrition is in itself believed to be a risk factor for death. A properly fed patient will not become undernourished.

It is common to serve pre-packaged frozen food to hospital patients, but at this particular hospital in Israel, the staff cook every meal, every day. There is a four-week cycle of menus. The patients like it. The texture of the food is tailored to each patient. There is also no waste.

In addition, the staff watch patients for swallowing problems. There are, apparently, seven stages of swallowing food.

Studies also show that elderly people survive longer if they are not thin. Furthermore, if their cholesterol level is a bit elevated, it’s actually protective, because too little fat may indicate poor nutrition. Weight loss is a bad sign, so patients in this situation are given cream and other high-calorie food.

Meanwhile, too much salt (sodium) raises blood pressure and is harmful. So the staff try to achieve a balance, because too little salt is also harmful.

One of the conference lecturers, a kidney specialist, discussed implications of low salt levels in a patient. Some sodium is necessary to maintain blood pressure and ensure the proper working of muscles and nerves.

A drop in sodium levels can cause brain swelling. Symptoms of this condition range from confusion and irritability to coma and abnormal mental status. Thus, the sodium level in the body is a key indicator of a person’s overall condition.

The body’s vitamin D levels are also important. A lack of this vitamin has been linked to many diseases, including depression, cancer, MS, diabetes and Alzheimer’s.

Legal implications?
On a day-to-day basis, most people have capacity to understand incapacity planning documents and Wills. Some people obviously do not, and a lawyer will be able typically to determine that one way or another quickly.

However, someone with capacity problems may not be able to understand the legal documents that they need to review and sign. They present in a way that leaves the lawyer uncertain as to whether they have capacity. For these people, some days can be better than others.

I wonder, having read about this conference and the studies summarized, whether any individual with such capacity trouble may be undernourished or otherwise not receiving proper (or enough) food.

In particular, I would think that a reasonable question for a lawyer who is meeting with a “questionable” patient (in terms of capacity), in a hospital or care facility, would be when the patient last had a meal, and whether the patient is being regularly fed.

In such situations, returning in a day or two might be preferable, because if the patient has been properly fed, perhaps he or she will be in a regular state and therefore able to discuss and understand documents.

It may be that food plays a more significant role in the elderly person’s overall state than we think.

This column appeared in the Richmond News on November 30, 2012.