Legal and Scientific Thinking About Our Minds

The law has long recognized the importance of a person's mental state. When an adult takes some action, the law presumes that person has the required mental capacity to understand the likely results. Every day people make contracts, deeds, wills, powers of attorney, gifts of assets and some commit crimes. Every one of those acts is presumed to be knowing and voluntary. Our laws want people to benefit from, be obligated by and, when appropriate, be punished for the actions they take. But, our legal system contains special provisions for people who are less mentally capable of understanding the importance and consequences of their actions.

Insanity has been a recognized mitigating factor in criminal law since the 16th century in Great Britain and is as old as the court system in this country. A proven lack of mental capacity can invalidate a person's contract, deed, will, power of attorney and virtually any, otherwise legally binding, transaction. The law does not allow children (under age 18 in Pa.) to legally enter into most types of transactions because of their immature mental capacity. If a person is judged by a court to be mentally incapacitated, he can lose his right to manage his own legal, financial and medical decisions to an appointed guardian. The purpose of mental capacity laws in the civil courts is to protect people with mental deficiencies from being taken advantage of by others.

On more than one occasion, I have declined to prepare deeds, powers of attorney or wills for people who could not identify the assets they owned, the names of family members or understand the effect these documents would have. I advise clients and family of the option of seeking a medical opinion confirming the required mental competency is still present but usually the family already knows that is not possible. When forms of dementia such as Alzheimer's disease have progressed to the point where the person can no longer make a knowing and voluntary decision about his property or care, then the opportunity for independent estate and disability planning is lost. After that, the options are to do nothing or commence a guardianship proceeding in court.

Let's shift away from the law for a moment and consider what science is discovering about our brains - those amazing organs. While science has not discovered cures for the dementia, it has made many very positive discoveries. Recent studies have shown that in certain western European countries, the number of people afflicted with dementia is not increasing as fast as the rise in population of older people. This is good and unexpected news.

How is this happening? The studies show that we can influence how well or poorly our brains' age. Brain function will slow down as we age but our lifestyle can help us keep a healthy, responsive brain longer. Neuroscientists report that the brain's plasticity can help improve older brains and those damaged by stroke or trauma. Brain plasticity refers to the extraordinary ability of the brain to modify its own structure and function following changes within the body or in the external environment. Scientific evidence shows that maintaining a physically healthy and mentally active lifestyle allows our older brains' to function well and keep learning new things.

What should we do? Neuroscientists recommend that we exercise our brains with mentally challenging activities, such a learning to play music or engaging in new activities that require attention and mental effort. Playing games such as bridge, doing crossword puzzles or other activities which make us think are reported to be good brain activities.

Neuroscientists explain that memory can be enhanced by intentional repetition over extended periods and by associating mental pictures to the things to be remembered. Also, consciously engaging all of our senses when we encounter new things we want to remember helps because all of our senses are involved when we form memories. The more senses we associate with a memory the longer we will hold onto it.

Research has found that higher levels of physical exercise helps older adults maintain better reasoning, memory and problem solving skills especially when combined with maintaining low blood pressure and low cholesterol. A Harvard Medical School publication offers a simple and important piece of advice for seniors. It urges that we keep a positive attitude about our mental abilities because studies show that believing we can improve our mental capacity and then translating that belief into practice does make a difference.