Capacity, Dementia

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 individuals 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
• Physicians 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 subjects 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?

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Assessing an Evaluation ReportContinued

• 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 subjects history?

21
Assessing an Evaluation Reportcontinued

• What is evaluators expertise?
• What was evaluators knowledge of subjects
  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 dementialike symptoms can be reversed
• Others irreversible (e.g., Alzheimers disease)
• About 5-8 of those over 65 have dementia
• About 47 of those over 85

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Subtypes of Dementia

• Alzheimers disease
• Vascular dementia
• Obstruction to blood flow in the brain
• Often caused by stroke
• Parkinsons 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 Parkinsons

25
Subtypes of Dementiacontinued

• 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

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Alzheimers disease

• Accounts for 2/3 of all dementia
• Early onset can start in 40s or 50s
• 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 dont have time for this
  or dont you know?

27
Alzheimers disease(continued)

• Quick check of mental functioning
• What is your name?
• Where do you live?
• What is the month?
• Who is the President?

28
Alzheimers 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 persons 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 ones 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