the fine line between incompetence and poor judgment

Surround Care™ Surrounding a Life with Care: The Right Sized Care Throughout the Stages & Ages

© Lifecare Innovations, Inc. 1

Looking for Friends in All the Wrong Places: The Fine Line Between Incompetence and Poor Judgment

By: Martha Kern


Examine the meaning of competence

Explore poor judgment and possible causes

Review the Guardianship process

Identify possible remedies that do not remove rights

Objectives


1 Competence = Ability to Make a Decision

2 But does the decision have to be what we consider “sensible”?

Defining Competence

4© Lifecare Innovations, Inc.

The Story of Eleanor

Lives in a high rise

“Independent” at the age of 84

Referred by her attorney


Red Flags

Eleanor cannot walk Surrounds herself with “caregivers”

More help needed? Hang a sign in the

hallway

An effective “system” of care


But There Are Problems…The other caregiver took the credit card to Louisiana

Problems

People come and go in the night

Drugs are missing

Cash is missing

One of the caregivers might be in jail

The door is unlocked to permit access


Incompetence or Poor Judgment?

Is Eleanor Incompetent?

Are these good decisions?


Competence revolves around decision-making ability

Must recognize that a decision needs to be made

How complex is the decision?

How to Assess

What are the consequences?


Necessary Components of Decisional Capacity

The ability to communicate

choice

Understanding the relevant information

Appreciating the situation

and its consequences

Manipulating information rationally

(Applebaum)© Lifecare Innovations, Inc. 10

Open-Ended Questions….and Answers

“Yes” or “No” choices can be expressed even by the overtly demented

Lucid rationale requires more cognitive ability

Open-ended questions addressing the reasoning

behind a choice

Ability to weigh options and contemplate

consequences


1 2

34

Changes to a will/estate plan

often require 2-3 meetings

Grave decisions require more

Rational manipulation of information

Consistent reasoning over time

Depth of Consequence


Eleanor’s Reasoning

1 2 3 4

Liked living alone

Unlicensed “caregivers” are cheaper

Rejected caregiver who

used credit card

These people are

her “friends”


Benefits and Risks

For Eleanor, the benefits outweigh the dangers

Unspoken needs may be met

Competent, but poor decisions


The Role of Loneliness/Social Isolation

Lucy

1

2 Loneliness may cause the suspension of customary caution

3 Lucy’s Situation


Lucy’s Story

Contacted by the police

1Lucy is in her 80s, lives alone

2Bank concerned

about recent money wires

3


The gentlemen from Nigeria

Lottery winnings at stake

Wellness checks when phone unanswered

“Probably a scam”It’s my money and I can

spend it as I please

True?

The Scam


52

3

14

1. Lucy’s home is immaculate

2. Lucy is well-groomed

3. She eats well and has a full refrigerator

4. Spotless driving record

5. Bills are paid

Other Salient Facts


Incompetence or Poor Judgment?

1

2

3

4

Incompetent?

What needs are being satisfied?

Attention may be flattering and exciting

Romance?


Loneliness May Influence Customary Thought Process

Lots of older adults fall for “scams”

Otherwise functional

Loneliness may inspire risk, social thrills

Costly friendships


Poor judgment and dementia

A sign of mild cognitive impairment

Decisions that compromise safety warrant concern

But a declaration of

incompetence?

Red Flags


Signs of Mild Cognitive Impairment (Mayo Clinic)

You forget important

events such as appointments

You forget things more

often

You lose your train of

thought or the thread of conversation


Signs Continued

You feel increasingly overwhelmed by decisions

1

Trouble finding way around

2

You become impulsive or show

poor judgment3

Family/friends take notice

4


Other Factors


How is Incompetence Determined?

Not necessarily one appointment

Physician determines whether or not a person is incompetent

Open-ended questions

Willing to complete a report for court


Stakes are high

Cannot be used to halt decisions we don’t like

Guardianship involves loss of rights

The Risks

23


George

1

2

3

George and his daughters

Taking girlfriend to church, spending

time with her

Called us about seeking

guardianship


About George

Met with George on another matter

Lucid, alert, oriented

Daughters did not like his having a girlfriend

Worried about inheritance?


Definition of a Disabled Adult in Illinois


“A person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” 755 ILCS 5/11a‐2

The Guardianship ProcessDetermination of whether or not there are Powers of Attorney

Petition for guardianship

Hearing before a judgeContestable

Physician report


Contract

Marry/Divorce

Own Weapons Vote

Drive/TravelWork

12

34

5

6

Removal of Personal Rights


Type of Guardianship

Limited

Plenary

Guardian of Person

Guardian of Estate

Temporary


Definitions


Temporary•Used in an emergency situation and can last no longer that 60 days

•Evidence must be shown for the need of the immediate protection

Plenary•Used when an individual’s mental, physical, and adaptive limitations necessitate a guardian who has the power to make all important decisions regarding the individual’s personal care and finances

Limited•Person with disabilities can make some, but not all, decisions regarding his/her person or estate or both

When to Seek GuardianshipPoor judgment professional assessment

Guardianship is a last resort

Risk? A marked change from customary behavior?


Until Guardianship is Warranted…

Introduce professional support Care managers

CaregiversMunicipal/township services


“Friends” Who Support and Protect

Provide guidance, monitoring

No loss of rights

Manage/reduce loneliness

Support for decisions


Determination of Capacity is a Slippery Task

Sometimes abundantly clear, sometimes not

Assess in the home (telltale signs)

Physician evaluation


Self determination

is the ideal

Protection from harm

Undue influence/financial

devastation

When in doubt, seek

professional assessment

Guardianship Removes Rights….But Also Protects


Resources


http://healthland.time.com/2013/08/02/social-isolation-leads-to-risky-financial-decisions/?iid=hl-main-lead

http://www.mayoclinic.com/health/mild-cognitive-impairment/DS00553

http://www.stanford.edu/group/psylawseminar/Competency.htm

http://www.gbfamilylaw.com/Articles/The-Mentally-Incompetent-Party.shtml

http://www.apa.org/pi/aging/resources/guides/practitioners-should-know.aspx#

http://www.aplaceformom.com/blog/2013-02-18memory-loss-retirement-savings/

http://en.wikipedia.org/wiki/Mental_status_examination

http://www.mobility-equipment-training.com/impaired-judgement.html

http://www.competence-capacity.com/

http://www.gov.ns.ca/health/mhs/pubs/seniors/competency_ingeriatrics_101.pdf

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the fine line between incompetence and poor judgment

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