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Capacity, Dementia

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Capacity, Dementia & Undue Influence NYC Elder Abuse Training Project, 2004 Capacity Issues in Court Courts likely to be dealing with more capacity issues Elderly ... – PowerPoint PPT presentation

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Title: 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?

20
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

24
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

26
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
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