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Capacity, Dementia & Undue Influence

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Presentation on theme: "Capacity, Dementia & Undue Influence"— Presentation transcript:

1 Capacity, Dementia & Undue Influence
NYC Elder Abuse Training Project, 2004

2 Capacity Issues in Court
Courts likely to be dealing with more capacity issues Elderly population growing rapidly Age a risk factor for dementias People with developmental disabilities living longer

3 Capacity Considerations
Central to guardianship cases Can be determinative in: Fraud cases Mental health commitments Adult protective service proceedings Cases involving health care decisions

4 Capacity: Definition Ability to perform a task
Each state defines capacity in its guardianship (or conservatorship) statutes Based on criteria from 3 categories Specific disabilities: mental retardation, mental illness Decision making impairment Functional impairment

5 NYS Mental Hygiene Law Article 81 Definitions
Functional level: Ability to provide for personal needs and/or ability with respect to property management Functional limitations: Behavior or conditions which impair the ability to provide for personal needs and/or property management

6 Capacity: Definition Not defined in NYS Mental Hygiene Law
Capacity to consent to financial transaction addressed in People v Camiola Capacity to create joint bank account addressed in People v Patricia Gbohou and Calloway Johnson

7 Courts must evaluate capacity over time
Past capacity: Civil cases - contesting a will or contract Criminal cases - legality of consent an issue Present Capacity: Determine if someone needs a guardian Determine if someone can assist in own defense Present and future capacity In guardianship/conservatorship cases

8 Capacity can fluctuate
Some people have lucid and confused days Fluctuations make it difficult to discern capacity from one or two examinations Could lead to misleading conclusions

9 Capacity not a single state
Capacity is an individual’s ability to perform certain tasks normally performed by adults A person can have or lack capacity in specific areas

10 Mental Capacity Remembering, reasoning and understanding consequences of an action or choice May be capable of performing simple task, but unable to perform more complex one May have capacity in one area, but not another

11 Decisional Capacity Complex and multi-dimensional
Eludes precise definition Entails abilities to understand information, deliberate about it and make a decision

12 Testamentary Capacity
Must often be determined retrospectively For a will to be legal, individual must be able to: Understand what a will is Recollect nature and extent of own property Remember and understand relationship to living descendants and others who will be affected by will

13 Capacity to Sign Contracts
Understanding what a contract is and the consequences of the contract Need not be formal written contract For proper consent, individual must: Have mental capacity to contract Understand the transaction Act voluntarily, free from threats or force

14 Testimonial Capacity Comes into play when an impaired person appears in court to testify Court may decide that individual lacks testimonial capacity, but admit un-sworn testimony

15 Need for Capacity Assessment
Incapacity is risk factor for elder abuse Careful capacity assessment is vital Needs to be assessed because capacity is hard to determine and can fluctuate

16 Capacity Assessment by MD
Should consider: Physician’s training and experience Timeliness and thoroughness of examination Whether subject was ever able to perform assessed activities Whether temporary, reversible conditions could be responsible Constancy of symptoms Prognosis

17 Evidence of Functional Impairment
Reports of subject’s functional abilities by social workers, psychologists, gerontologists Functional abilities include: Maintaining personal hygiene Maintaining proper diet Following medication regimens Responding appropriately to health problems Performing financial activities

18 Functional Assessments
More accurate if conducted over time in environment where subject feels comfortable Different situations demand different levels of capacity and call for flexible solutions

19 Assessing a Capacity Evaluation Report
How recently done? Duration and number of times At what times of day? Was subject on medication; does report indicate impact of medication(s)? What was the setting? Who else was present?

20 Assessing an Evaluation Report Continued
What tests were performed?: Neurological exam Psychological exam Medical exam Assessment of Activities of Daily Living and Instrumental Activities of Daily Living Any other exam What records were reviewed? Did evaluator ask others about subject’s history?

21 Assessing an Evaluation Report continued
What is evaluator’s expertise? What was evaluator’s knowledge of subject’s history? Who is arranging/paying for the evaluation Does evaluator have history with abused person, alleged abuser, or any other concerned person? State statutes may outline procedures to guide the process of capacity evaluation

22 Dementias and Psychiatric Disorders
Impair ability to report abuse and to testify in court Depression: victim feels hopeless and passive Paranoia: pervasive distrust results in reluctance to cooperate with investigation and prosecution Identification with the abuser Dementia: gradual deterioration in cognitive functioning

23 Dementia Primarily associated with aging, but not a normal part of aging Some dementia–like symptoms can be reversed Others irreversible (e.g., Alzheimer’s disease) About 5%-8% of those over 65 have dementia About 47% of those over 85

24 Subtypes of Dementia Alzheimer’s disease Vascular dementia
Obstruction to blood flow in the brain Often caused by stroke Parkinson’s disease Degeneration of nerves in the brain, leading to tremors, weakness of muscles and slowness of movement Dementia has been reported in 20% - 60% More likely in older persons or those with severe or advanced Parkinson’s

25 Subtypes of Dementia continued
Frontotemporal dementia Deterioration and shrinkage in front and side areas of brain Decline in social skills; engage in unusual verbal, physical or sexual behavior; uncharacteristic apathy or indifference; may neglect hygiene Lack awareness that their behavior has changed Dementia due to head injuries May not be permanent Dementia due to HIV or Medications

26 Alzheimer’s disease Accounts for 2/3 of all dementia
Early onset can start in 40’s or 50’s Thorough medical exam important to diagnose Progress for victims is similar In early stages, routine tasks and recent events become difficult to accomplish and recall “Masking” may lead victim to respond to a question by saying “I don’t have time for this” or “don’t you know?”

27 Alzheimer’s disease (continued)
Quick check of mental functioning What is your name? Where do you live? What is the month? Who is the President?

28 Alzheimer’s disease (continued)
Periods of lucid thought in early stages Receptivity to questions and ability to provide information may vary throughout the day For some, not all, “sundowning” occurs Late in the day, have more difficulty processing information Makes interviewing more difficult

29 Undue Influence Connotes excessive pressure
“The substitution of one person’s will for the true desires of another” Elderly people with financial assets are vulnerable Used as a means to financially exploit the victim Consequences can be devastating Material loss Loss of personal power Often leads to early death

30 Factors that IncreaseVulnerablity
Recent bereavement Physical disability Isolation Lacking knowledge of one’s own finances Cognitive impairment

31 Likely Perpetrators Family members Caregivers
Neighbors, friends or con artists Fiduciaries: attorneys, accountants, trustees, guardians

32 Actions Perpetrator May Take
Isolate the victim Convince victim no one else cares Make or keep victim dependent

33 Factors Courts Consider
Discussion of transaction at unusual time or place Insistence that business be finished at once Emphasis on untoward consequences of delay Use of multiple persuaders against the vulnerable person Absence of third-party advisors

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