Capacity, Dementia & Undue Influence

NYC Elder Abuse Training Project, 2004

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

Capacity Considerations

• Central to guardianship cases

• Can be determinative in:– Fraud cases– Mental health commitments– Adult protective service proceedings– Cases involving health care decisions

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

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

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

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

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

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

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

Decisional Capacity

• Complex and multi-dimensional

• Eludes precise definition

• Entails abilities to understand information, deliberate about it and make a decision

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

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

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

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

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

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

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

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?

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 subject’s history?

Assessing an Evaluation Reportcontinued

• 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

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

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

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

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

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?”

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?

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

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

Factors that IncreaseVulnerablity

• Recent bereavement• Physical disability• Isolation• Lacking knowledge of one’s own finances• Cognitive impairment

Likely Perpetrators

• Family members• Caregivers• Neighbors, friends or con artists • Fiduciaries: attorneys, accountants, trustees,

guardians

Actions Perpetrator May Take

• Isolate the victim• Convince victim no one else cares• Make or keep victim dependent

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