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