Assessing Vulnerability, Capacity & Undue Influence in Elder Abuse

1. Assessing Vulnerability, Capacity & Undue Influence in Elder Abuse Bonnie Olsen, Ph.D. Clinical Professor of Medicine Elder Abuse Forensic Center Program In Geriatrics University of California, Irvine

2. Topics: • Normal aging • Conditions contributing to vulnerability • Conceptual framework for evaluation of vulnerability and capacity • Components of assessment • Forms of undue influence

3. Age-related Cognitive Change • Expect little change in memory before 70 • Then only slight decline - encoding vs. retrieval • General intellectual skills persist • Speed, flexibility & multi-tasking decline slightly • Compensated by wisdom & experience

4. Conditions Leading to Vulnerability • Dementia, cognitive impairment • Psychiatric disorders • Depression, Anxiety • Loneliness, Isolation, Grief • Disability • Substance abuse (Rx, OTC,OTB)

5. Dementia • Degenerative • Impairment in memory and at least one other cognitive domain • Effects IADL functioning

6. Prevalence of Dementia: • 65 year old = > 5 % • 75 year old = > 15 % • 85 year old = > 45%

7. DEMENTIA Differentiating types: • Most distinct early in disease process • More similar as it progresses • Important if it informs: • Treatment • Prognosis • Caregiving needs • Vulnerability to abuse

8. Dementia Diagnostic Distribution

9. Dementia ALZHEIMER’S DISEASE: • Typical onset in 70’s - 80’s • Early onset - mid 50’s • Memory  first symptom (encoding deficit) • Lack of insight • Impairment in functional skills: IADL’s • Lack of content to speech • Agitation and Anxiety Common

10. Dementia Diagnosis of Alzheimer’s disease: • Neurological Exam normal • MRI shows atrophy • SPECT scan biparietal decreased perfusion • Neuropsychological test impairment in multiple domains

11. Dementia VASCULAR DEMENTIA: • Also called microvascular disease, multi-infarct dementia • Impairment in frontal/subcortical circuits • Look for risk factors (heart, diabetes, HTN) • Subtle decline in speed of processing • Memory  due to poor retrieval • Other retrieval problems - word finding • Usually some insight • Emotional lability/depression • Usually personality preserved

12. Dementia Lewy Body Dementia: • Onset in 70’s, faster course • Initial symptoms include: - change in personality (delusions) - visual hallucinations - impaired visuospatial skills (pentagons) - fluctuating attention - motor impairment - parkinsonism

13. Dementia Frontotemporal Dementia: • Also Picks Disease • Initial symptoms before 65 yrs. • First symptom in self-regulation/executive function • Lack of personal awareness • Impaired interpersonal conduct • Lack of insight • Memory NOT impaired initially

14. Delirium • Reversible • Due to metabolic or physiologic cause • Common etiologies: • Infection • Toxicity • Anesthesia • Medication • Dehydration

15. Delirium • Disturbance of consciousness, arousal • Fluctuates over time • Develops quickly (hours, days) • Change in other cognitive functions • Can coexist with dementia, depression, anxiety

16. Depression Diagnostic Criterion: • Depressed mood • Loss of pleasure or interest • Weight loss or gain • Insomnia or hypersomnia • Psychomotor agitation or retardation • Fatigue or loss of energy • Feelings of worthlessness or guilt • Decreased concentration • Recurrent thoughts of death or suicide

17. Depression Symptoms in Older Adults: • Fewer mood symptoms (sadness) • Fewer ideational symptoms (guilt, suicidality) • More somatic complaints (pain, GI) • More cognitive impairment (attention, memory, indecisiveness) • More delusional symptoms

18. Depression • Major Depression: 1– 2% of geriatric population, lower than in other age groups. • Minor Depression: approx. 16% of geriatric population, higher than other age groups. • Depression in the general population is 3 times as common in women than men. May be reversed in geriatric population. • Suicide rate highest for elderly men than any other group.

19. Depression Unique to older populations: • Depression and anxiety often coexist • Often complicated by dementia/cognitive decline • Lower threshold for treatment • Treat as syndrome

20. Depression Associated with medical conditions: • Diabetes • Stroke • Heart attack • Cancer

21. ANXIETY Incidence • Frequent symptom in geriatric population • Rarely diagnosed or treated directly in geriatric population

22. Anxiety Symptoms • Cognitive: worry, poor concentration • Somatic: fatigue, muscle tension, poor sleep • Emotional: restlessness, irritability

23. The Conceptual Basis Evaluating Vulnerability and Capacity

24. Four Concepts Are Critical To Understanding Abuse Autonomy Vulnerability Capacity Undue Influence

25. AUTONOMY:TO GOVERN ONE’S SELF. Autonomy Is The Highest Principle in Legal, Psychological and Medical Issues

26. AUTONOMY: YOU HAVE THE RIGHT TO MAKE YOUR OWN DECISIONS,GOOD OR BAD, STUPID ORSMART,WHETHER OTHERS AGREE ORNOT,if you have theCAPACITY to make them& you are notUNDULY INFLUENCED.

28. Vulnerability:Any Condition Severe Enough That Another Person Could Use It To Unduly Influence You or Take Advantage of You.

29. Most Vulnerable Conditions Are Diagnosable Disorders Can lead to lack of capacity

30. Capacity: The Legal DefinitionVaries From State to StateDepends upon the kind of transaction involvedMost Involve Two Things

31. Key Phrase in California Probate Code 812 The Person Must “Understand and Appreciate” • “Understand” can be assessed by having person re-state key facts regarding decision or act or process information adequately. • “Appreciate” requires ability to relate information to one’s own circumstance, to identify consequences to self and others of the decision, to weigh risks against benefits for self.

32. Capacity Is Not Absolute:It Is Relative To The Complexity Of The Decision To Be MadeYou can have capacity to make one kind of decision but not another.

33. Capacity Relates To Being Able To Make a “Decision” What’s a “Decision”? • the rational evaluation of alternatives • understanding the implications of the choices • choosing the one that is best for oneself

34. Issue: How Much CapacityIs “Enough” Capacity? Well….what are you trying to decide?

35. Legal/Medical Decisions Of Different LevelsTestamentary capacityMarriageContractual capacityHaving surgeryParticipation in research.

36. Capacity Is Not The Same As Diagnosis • Diagnosis (dementia, mental retardation, psychosis) does not tell you the person’s capacity. • Capacity must be individually assessed.

37. Capacity Is Not The Same As IQ IQ measures acquired knowledge and abilities. Regardless of IQ, capacity still has to be tested.

38. Capacity Is Not Equivalent To Physical Changes In The Brain Brain scans neither prove nor disprove capacity. Provide good correlative evidence

39. Conditions That Contribute To Vulnerability: • Dementia, Cognitive impairment • Psychotic disorders • Depression, Anxiety • Disability • Loneliness, Grief, Isolation • Substances (Rx, OTC,OTB)

40. Assessing Capacity:A Three-Step Process

41. Four Conditions That Impair Capacity Under The Law Cognitive Impairment Severe Mood Disturbance Perceptual Distortion Thought Processing Defects

42. Step One: Can The Person Process Information And Think Logically In General? (Does the machinery work?) You have to actually test for it. Common mistake is to assume person is OK.

43. Processing Information For Capacity Purposes Requires At A Minimum 1. Attention, concentration 2. Orientation, Short-term memory 3. Retrieval of long-term memory 4. Language: comprehension and expression 5. Visual-spatial abilities 6. Reasoning

44. Why are some things remembered and not others ? • Recall old memories but NOT new (long term vs. short term) • Recall emotional events but not ordinary • Recall big picture but not details

45. Can The Person Think Logically, Rationally and Abstractly? “Executive Functions” logic organize consequences plan judgment alternatives insight reason

46. Step Two:Assess for Other Deficits • Mood disorders (depression & anxiety) • Perceptual disturbances (hallucinations) • Thought disorders (delusions)

47. Step Three : The InterviewAppreciating ThisDecision • Reasons for the decision • Consequences of the decision • Benefits and risks of the decision • Alternatives considered • Consistency of the decision

48. Undue Influenceexerting inappropriate influence over a vulnerable person in order to change his/her decision or behavior.

49. Undue Influence • The perpetrator’s “will” is substituted for the “will” of the victim • Victim acts subject to the will or purposes of the perpetrator • Victim agrees to give the perpetrator money or property

50. Assessment of Undue Influence • Examine the dynamic interplay between the victim and the perpetrator • Medical diagnosis, mental illness, cognitive impairment is not necessary • Affected by mental capacity, medical issues and environmental factors • Manipulation, coercion, compulsion or restraint occurs as a direct result of the relationship