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UTS study finds lawyers treating a dementia diagnosis as a finding of incapacity
The first study of dementia capability among legal professionals names five areas practitioners need, and reports that even experienced lawyers are unclear on how dementia types differ and on when a diagnosis bears on capacity.
The Scientist · Science desk
What happened
- A University of Technology Sydney study by law professor Nola Ries and doctoral candidate Karen Donner is the first to examine dementia capability among legal professionals, drawing on lawyers, people with dementia and their support people.
- The interviews turned up knowledge gaps even among experienced lawyers, especially on the differences between types of dementia and on the distinction between a diagnosis and a finding of incapacity.
- The researchers are working with Dementia Australia on training courses for legal professionals and running free webinars for lawyers that include perspectives from people living with dementia.
Compiled by The ScientistSomething wrong?How this is made
Why it matters
- exposure A client turned away because a diagnosis was read as incapacity loses the chance to appoint an attorney while the chance still exists, and the family inherits the dispute or the exploitation that follows.
- constraint Because the design is qualitative, the study can name the gaps without counting them, so nobody can yet say whether the profession is closer to the workforce goal than it was.
- decision Firms have to settle how far the work goes: certify capacity and draft the document, or advise with the client's condition in view. Minarelli argues for the second.
- capability Professional bodies now have five named categories to write courses and practice standards against.
Capacity in law is decided task by task. A diagnosis is a clinical finding, and the two are not the same judgement. The University of Technology Sydney researchers found that distinction slipping even among practitioners with long experience [4].
"One of the biggest concerns was the tendency to equate a dementia diagnosis with incapacity, and the risk that legal planning may be denied due to fear of legal repercussions. Determining if a person has capacity varies depending on the legal task," said Nola Ries, the UTS law professor who led the work [5].
The error runs in the cautious direction, which is what makes it hard to see. A lawyer worried that a document will be challenged later has an incentive to decline the instruction now. The client sent away is the one who still had time to put plans in place. Phys.org's account of the study describes the consequences of missing that window as family disputes and financial exploitation [6].
"Different types of dementia can also affect people in very different ways. For example, frontotemporal dementia can cause changes in judgment and behavior, which may lead to accusations of criminal behavior, as our previous research has shown," Ries said [7].
The paper, in the International Journal of the Legal Profession, sorts what practitioners need into five categories: knowledge, legal rights and risks, capacity, communication and advocacy [3]. "Our findings reveal both the necessity and complexity of developing dementia capability among lawyers. The five attribute categories we identified provide a framework for professional development and practice improvement," said Karen Donner, the doctoral candidate and lawyer who co-authored it [8].
The design is qualitative, drawing on lawyers, people living with dementia and their support persons [2], and the phys.org report does not state how many people took part. So the study can name a misconception and say it surfaced among experienced lawyers; it cannot say what share of the profession holds it, and it does not measure the profession against a target. Ries said the plan is where the question came from: "Australia has a National Dementia Action Plan, and improving dementia capability of workforces and professions is one of the priority areas in it. This raised the question: What does that mean for the legal profession?" she said [9].
More than 55 million people worldwide live with dementia, and it is the leading cause of death in Australia [1]. Ries and Donner are now working with Dementia Australia to deliver training courses for legal professionals, alongside free webinars for lawyers that include perspectives from people living with dementia [10].
One practitioner quoted in the announcement, Mark Minarelli, said he increasingly sees friends and clients dealing with a dementia diagnosis [11]. "There is an opportunity for lawyers to support clients and families facing these challenges, rather than merely being document providers," he said [12].
What to watch
- Whether the Dementia Australia training courses for lawyers are evaluated on what practitioners do afterwards.
- Whether state law societies write the five capability areas into continuing professional development requirements for practitioners.
- Whether reporting under Australia's National Dementia Action Plan counts the legal profession among the workforces it tracks.