All About Estates

Neuroimaging and Capacity

Today’s blog comes to you from Summer Student, Krysten Zator

Neuroimaging and Dementia

Technology has increasingly allowed us to peek into the brain, and medical professionals, scientists, lawyers, and laypeople increasingly form opinions of what these images tell us. When it comes to understanding the human mind, humans are more likely to trust brain imaging data as more authoritative and credible than behavioural data.[1]

This can be problematic, as the captured images project brain activity (e.g. blood oxygen levels in an fMRI) that must be interpreted carefully in context with the correct expertise.[2] For example, while an image may show brain activation, it may be difficult to discern what exactly that brain activity means. Further, much imaging data is composed of group data,[3] the aggregated average of many individual data points, rather than the data of an individual. This means that the models we rely on for reference might not reflect any one individual case.

Problems can arise, then, when neuroimaging is used in litigation to demonstrate data on a particular individual, in skillful, manipulative ways, or without providing the necessary expertise and context. [4] For these reasons, legal professionals may wish to familiarize themselves with the basics of neuroimaging techniques. The following discusses how neuroimaging may invade estates law, specifically regarding Alzheimer’s disease and dementia, with the increasing development of neuroimaging techniques that may reveal information about an individual’s capacity.

Testamentary Capacity

The concept of neuroimaging might raise estates law issues in relation to testamentary capacity. To date, no one test can provide a definitive diagnosis of Alzheimer’s disease;[5] usually, a combination of tests is used to diagnose it, though imaging techniques are being tested and developed that may help identify those with the disease.[6] While this may be extremely beneficial for the diagnosis, prevention, and treatment of Alzheimer’s, it may present issues with litigation, regarding testamentary capacity.

In 2017, as previously discussed in the blog post: Dementia does not Preclude Testamentary Capacity, in Birtzu v McCron,[7] the Ontario Superior Court of Justice suggested that dementia did not necessarily preclude a finding of testamentary capacity. Rather, the Court proposed that capacity may be time-specific.[8] Birtzu involved Mr. Birtzu, who changed his will in 2006, 3 years before his death in 2009, such that where his will previously benefited his children and grandchildren, the new will left his entire estate to only one daughter. His two sons brought a claim for lack of testamentary capacity at the time of making the 2006 will. The question before the court was whether Mr. Birtzu had testamentary capacity when he changed his will in 2006. The medical records in the decade before his death indicated that Mr. Birtzu had developed progressive dementia. However, behavioural accounts (e.g. from friends and neighbours) suggested that until about 1.5 years before his death (after making the 2006 will), he appeared of normal cognition, despite progressive dementia.

The decision in Birtzu did not touch on neuroimaging, but relied heavily on expert testimony suggesting that capacity is time-specific and that dementia does not preclude a finding of testamentary capacity. Bloom J relied on the typical test for testamentary capacity in finding that while by 2004, Mr. Birtzu was affected by dementia, this was confined to memory loss only. Bloom J accepted that Mr. Birtzu was still able to understand and manage his finances and health and that Mr. Birtzu’s behaviour was judged as normal by those around him until 2007, after the 2006 will was finalized.

While this case does not touch on neuroimaging, science does suggest that it may be possible to track the progression of dementia through imaging. Over the past couple of decades, imaging data has been used to track the progression of dementia and over time, scientists have gained increasing knowledge of what Alzheimer’s disease and dementia might look like in the brain.[9] These studies involve structural MRI scans, which present a static picture of the brain, but more recently, a different brain imaging technique called Positron Emission Tomography (PET) has been used to examine Alzheimer’s disease.[10] In this imaging technique, researchers use a material called Pittsburgh Compound-B to track the progression of the disease, which binds to amyloid β-proteins.[11] These proteins form the amyloid plaques on the brain that are characteristic of Alzheimer’s disease.[12] While this is currently costly,[13] it is not hard to imagine how this sort of science could be introduced into such a legal case. Being able to track the progression of Alzheimer’s disease might lend to capacity assessments by imaging for those wishing to make a will and also to confirm testamentary capacity after the fact.

Consequences and Benefits of Neuroimaging of Alzheimer’s Disease and Dementia

While imaging might be confirmatory of incapacity in some cases, if we rely solely on images to diagnose capacity, we risk losing the time-specific capacity nuance seen in Birtzu, as images may be seen as static reflections of an all-encompassing, rather than dynamic, disease. For example, someone viewing an image of an individual’s brain may see brain atrophy and assume the individual is incapable in all respects, when in all actuality, like Mr. Birtzu, they might still retain the cognitive functions to make a will. Therefore, caution should be taken if imaging is to be used in estate litigation. As noted, individuals are biased towards imaging, and may place greater weight on these images over behavioural data, such as the observational data in Birtzu that demonstrated testamentary capacity despite dementia-related short-term memory loss.

On the other hand, if neuroimaging becomes so sensitive that images could show atrophy in particular areas of the brain, neuroimaging used in the proper context with proper interpretation could prove useful in making a determination of testamentary capacity in someone with dementia. For example, if imaging could evidence no progression of the disease into areas of the brain involved in decision-making (as evidenced by a lack of amyloid β-proteins for example), an individual could make sure that at the time of making a will, they obtained images of their brain to demonstrate capacity in order to assist with other evidence, in refuting claims of incapacity later on. For example, since in Birtzu the question was whether in 2006 when Mr. Birtzu changed his will, the dementia was really restricted to short-term memory, brain imaging could have provided some insight into this if available.

As noted in the blog post: Dementia Villages: A Unique Approach to Dementia Care, the number of Canadians with dementia is expected to rise to 1 million by 2031. Thus, it is possible that this will become a very pressing issue if the science improves, the cost of imaging decreases, and the number of individuals living with Alzheimer’s disease or some form of dementia continues to increase. Since humans are more likely to believe images of the brain rather than behavioural data (e.g. an analysis of behavioural observations of someone such as Mr. Birtzu), the use of imaging presents a potential issue, but also a potential asset if done correctly when the technology allows. In order to more effectively serve clients and represent estates, certain members of the legal community may benefit from an increased understanding of the science behind neuroimaging techniques.

[1] David P McCabe & Alan D Castel, “Seeing is believing: The effect of brain images on judgments of scientific reasoning” (2008) 107 Cognition 343. In this study, participants rated brain imaging data as more convincing than statistical data.

[2] Owen D Jones et al, “Brain Imaging for Judges: An Introduction to Law and Neuroscience” (2014) 50 Court Rev 44.

[3] Ibid.

[4] Ibid.

[5] Ghiam Yamin & David B Teplow, “Pittsburgh Compound-B (PiB) binds amyloid B-protein fibrils” (2017) 140:2 J Neurochem 210.

[6] See e.g. ibid.

[7] 2017 ONSC 1420 [Birtzu].

[8] Ibid.

[9] See e.g. Prashanthi Vemuri, “Role of structural MRI in Alzheimer’s disease” (2010) 2 Alzheimer’s Research & Therapy; Giovanni B Frisoni et al, “The clinical use of structural MRI in Alzheimer disease” (Feb 2010) 6:2 Nat Rev Neurol 67.

[10] See Yamin & Teplow, supra note 5.

[11] Ibid.

[12] Ibid.

[13] See e.g. Adam M Staffaroni, et al, “Neuroimaging in Dementia” (October 2017) 37:5 Semin Neurol 510.

About Brittany Sud
Brittany Sud is a member of the Trust, Wills, Estates and Charities Group at Fasken, Toronto office. Brittany is developing a broad estates and trusts practice with a focus on planning and administration matters. As part of her practice, Brittany assists high net worth clients, entrepreneurs and professionals with Wills, powers of attorney, domestic contracts and trusts. She has experience developing and implementing cohesive estate plans that reflect the financial objectives and short and long-term goals of clients, including advising on probate planning, family business succession planning, asset protection strategies and disability planning. Brittany’s estate administration practice includes preparing applications for probate and administering the Canadian estates of non-residents. Outside of the office, Brittany enjoys playing softball and tennis, travelling and cooking. She is a dedicated volunteer of the United Jewish Appeal, Jewish National Fund, One Family Fund and Baycrest Foundation. Community Involvement • Host, Baycrest Foundation - Game Night for Baycrest, 2015 • Chair, Pitch for Israel Softball Tournament, 2014-2016 • Vice-Chair, United Jewish Appeal Young Lawyers Leadership Campaign Canvassing Team, 2016 Memberships and Affiliations • Member, Canadian Bar Association • Member, Ontario Bar Association - Trusts and Estates Law Section • Member, Ontario Bar Association - Young Lawyers’ Division • Student Member, Society of Trusts and Estates Practitioners (STEP) Canada

1 Comment

  1. Greg Barnsdale CFP CEA LFD

    July 24, 2019 - 4:46 pm

    Insightful article.

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