Assessing Vulnerability, Capacity & Undue Influence in Elder Abuse

Bonnie Olsen, Ph.D. Clinical Professor of MedicineElder Abuse Forensic Center

Program In GeriatricsUniversity of California, Irvine

Bonnie Olsen, Ph.D. Clinical Professor of MedicineElder Abuse Forensic Center

Program In GeriatricsUniversity of California, Irvine

Assessing Vulnerability, Capacity & Undue Influence

in Elder Abuse

Assessing Vulnerability, Capacity & Undue Influence

in Elder Abuse

Topics:Topics:

Normal aging Conditions contributing to vulnerability Conceptual framework for evaluation of

vulnerability and capacity Components of assessment Forms of undue influence

Normal aging Conditions contributing to vulnerability Conceptual framework for evaluation of

vulnerability and capacity Components of assessment Forms of undue influence

Age-related Cognitive ChangeAge-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

• 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

Conditions Leading to Vulnerability

Conditions Leading to Vulnerability

• Dementia, cognitive impairment• Psychiatric disorders • Depression, Anxiety• Loneliness, Isolation, Grief• Disability• Substance abuse (Rx, OTC,OTB)

• Dementia, cognitive impairment• Psychiatric disorders • Depression, Anxiety• Loneliness, Isolation, Grief• Disability• Substance abuse (Rx, OTC,OTB)

DementiaDementia

Degenerative Impairment in memory and

at least one other cognitive domain

Effects IADL functioning

Degenerative Impairment in memory and

at least one other cognitive domain

Effects IADL functioning

Prevalence of Dementia:Prevalence of Dementia:

65 year old = > 5 % 75 year old = > 15 % 85 year old = > 45%

65 year old = > 5 % 75 year old = > 15 % 85 year old = > 45%

DEMENTIADEMENTIA

Differentiating types: Most distinct early in disease

process More similar as it progresses Important if it informs:

Treatment Prognosis Caregiving needs Vulnerability to abuse

Differentiating types: Most distinct early in disease

process More similar as it progresses Important if it informs:

Treatment Prognosis Caregiving needs Vulnerability to abuse

DementiaDementia

2%8%

30%

60%

Alzheimer's Disease

Vascular Dementia

Other DegenerativeDementiaOther Causes

2%8%

30%

60%

Alzheimer's Disease

Vascular Dementia

Other DegenerativeDementiaOther Causes

Diagnostic Distribution

DementiaDementia

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

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

DementiaDementia

Diagnosis of Alzheimer’s disease:

Neurological Exam normal MRI shows atrophy SPECT scan biparietal decreased

perfusion Neuropsychological test impairment in multiple

domains

Diagnosis of Alzheimer’s disease:

Neurological Exam normal MRI shows atrophy SPECT scan biparietal decreased

perfusion Neuropsychological test impairment in multiple

domains

DementiaDementiaVASCULAR 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

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

DementiaDementiaLewy 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

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

DementiaDementiaFrontotemporal 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

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

DeliriumDelirium

Reversible Due to metabolic or physiologic cause Common etiologies:

Infection Toxicity Anesthesia Medication Dehydration

Reversible Due to metabolic or physiologic cause Common etiologies:

Infection Toxicity Anesthesia Medication Dehydration

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

anxiety

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

anxiety

DepressionDepression

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

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

Diagnostic Criterion:

DepressionDepression

Fewer mood symptoms (sadness) Fewer ideational symptoms (guilt,

suicidality) More somatic complaints (pain, GI) More cognitive impairment

(attention, memory, indecisiveness) More delusional symptoms

Fewer mood symptoms (sadness) Fewer ideational symptoms (guilt,

suicidality) More somatic complaints (pain, GI) More cognitive impairment

(attention, memory, indecisiveness) More delusional symptoms

Symptoms in Older Adults:

DepressionDepression 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.

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.

DepressionDepression

Depression and anxiety often coexist Often complicated by

dementia/cognitive decline Lower threshold for treatment Treat as syndrome

Depression and anxiety often coexist Often complicated by

dementia/cognitive decline Lower threshold for treatment Treat as syndrome

Unique to older populations:

DepressionDepression

Associated with medical conditions: Diabetes Stroke Heart attack Cancer

Associated with medical conditions: Diabetes Stroke Heart attack Cancer

Incidence Frequent symptom in geriatric population Rarely diagnosed or treated directly in

geriatric population

Incidence Frequent symptom in geriatric population Rarely diagnosed or treated directly in

geriatric population

ANXIETY

Anxiety SymptomsAnxiety Symptoms

Cognitive: worry, poor concentration

Somatic: fatigue, muscle tension, poor

sleep Emotional:

restlessness, irritability

Cognitive: worry, poor concentration

Somatic: fatigue, muscle tension, poor

sleep Emotional:

restlessness, irritability

The Conceptual BasisThe Conceptual Basis

Evaluating Vulnerability and Capacity

Evaluating Vulnerability and Capacity

Four Concepts Are Critical To Understanding Abuse

Four Concepts Are Critical To Understanding Abuse

Autonomy

Vulnerability

Capacity

Undue Influence

Autonomy

Vulnerability

Capacity

Undue Influence

AUTONOMY:

TO GOVERN ONE’S SELF.

Autonomy Is The Highest Principle

in Legal, Psychological and Medical

Issues

AUTONOMY:

TO GOVERN ONE’S SELF.

Autonomy Is The Highest Principle

in Legal, Psychological and Medical

Issues

AUTONOMY: YOU HAVE THE

RIGHT TO MAKE YOUR OWN DECISIONS,

GOOD OR BAD,

STUPID OR SMART,

WHETHER OTHERS AGREE OR NOT,

if you have the CAPACITY to make them

& you are not

UNDULY INFLUENCED.

AUTONOMY: YOU HAVE THE

RIGHT TO MAKE YOUR OWN DECISIONS,

GOOD OR BAD,

STUPID OR SMART,

WHETHER OTHERS AGREE OR NOT,

if you have the CAPACITY to make them

& you are not

UNDULY INFLUENCED.

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

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

Most Vulnerable Conditions Are Diagnosable Disorders Most Vulnerable Conditions Are Diagnosable Disorders

Can lead to lack of capacity

Capacity: The Legal Definition

Varies From State to StateDepends upon the kind of

transaction involved

Most Involve Two Things

Capacity: The Legal Definition

Varies From State to StateDepends upon the kind of

transaction involved

Most Involve Two Things

Key Phrase in California Probate Code 812

The Person Must “Understand and Appreciate”

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.

“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.

Capacity Is Not Absolute:

It Is Relative To The Complexity Of The Decision To Be Made

You can have capacity to make one kind of decision but not another.

Capacity Is Not Absolute:

It Is Relative To The Complexity Of The Decision To Be Made

You can have capacity to make one kind of decision but not another.

Capacity Relates To Being Able To Make a “Decision”

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

What’s a “Decision”?

the rational evaluation of alternatives understanding the implications of the

choices choosing the one that is best for

oneself

Issue: How Much Capacity

Is “Enough” Capacity?

Issue: How Much Capacity

Is “Enough” Capacity?

Well….what are you trying to decide?

Well….what are you trying to decide?

Legal/Medical Decisions Of Different LevelsTestamentary capacity

Marriage

Contractual capacity

Having surgery

Participation in research.

Legal/Medical Decisions Of Different LevelsTestamentary capacity

Marriage

Contractual capacity

Having surgery

Participation in research.

Capacity Is Not The Same As Diagnosis

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.

Diagnosis (dementia, mental retardation, psychosis) does not tell you the person’s capacity.

Capacity must be individually assessed.

Capacity Is Not The Same As IQCapacity Is Not The Same As IQ

IQ measures acquired knowledge and abilities.

Regardless of IQ, capacity still has to be tested.

IQ measures acquired knowledge and abilities.

Regardless of IQ, capacity still has to be tested.

Capacity Is Not Equivalent To Physical Changes In The BrainCapacity Is Not Equivalent To

Physical Changes In The Brain

Brain scans neither prove

nor disprove capacity.

Provide good correlative evidence

Brain scans neither prove

nor disprove capacity.

Provide good correlative evidence

Conditions That Contribute To Vulnerability:

Conditions That Contribute To Vulnerability:

• Dementia, Cognitive impairment• Psychotic disorders• Depression, Anxiety• Disability • Loneliness, Grief, Isolation• Substances (Rx, OTC,OTB)

• Dementia, Cognitive impairment• Psychotic disorders• Depression, Anxiety• Disability • Loneliness, Grief, Isolation• Substances (Rx, OTC,OTB)

Assessing Capacity:

A Three-Step Process

Assessing Capacity:

A Three-Step Process

Four Conditions That Impair Capacity Under The Law

Four Conditions That Impair Capacity Under The Law

Cognitive Impairment

Severe Mood Disturbance

Perceptual Distortion

Thought Processing Defects

Cognitive Impairment

Severe Mood Disturbance

Perceptual Distortion

Thought Processing Defects

Step One: Can The Person Process Information And

Think Logically In General?

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.

(Does the machinery work?)

You have to actually test for it. Common mistake is to assume person is OK.

Processing Information For Capacity Purposes Requires At A Minimum

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

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

Why are some things remembered and not others ?

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

Recall old memories but NOT new(long term vs. short term)

Recall emotional events but not ordinary

Recall big picture but not details

Can The Person Think Logically, Rationally and Abstractly?

Can The Person Think Logically, Rationally and Abstractly?

“Executive Functions”

logic organizeconsequences planjudgment

alternativesinsight reason

“Executive Functions”

logic organizeconsequences planjudgment

alternativesinsight reason

Step Two: Assess for Other Deficits

Step Two: Assess for Other Deficits

Mood disorders

(depression & anxiety) Perceptual disturbances

(hallucinations) Thought disorders

(delusions)

Mood disorders

(depression & anxiety) Perceptual disturbances

(hallucinations) Thought disorders

(delusions)

Step Three : The InterviewAppreciating This DecisionStep Three : The InterviewAppreciating This Decision

• Reasons for the decision

• Consequences of the decision

• Benefits and risks of the decision

• Alternatives considered

• Consistency of the decision

Undue Influence

exerting inappropriate influence

over a vulnerable person in order

to change his/her decision or

behavior.

Undue Influence

exerting inappropriate influence

over a vulnerable person in order

to change his/her decision or

behavior.

Undue InfluenceUndue 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

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

Assessment of Undue InfluenceAssessment 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

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

Five Common Forms of Undue Influence:It’s WICKED!

Five Common Forms of Undue Influence:It’s WICKED!

Withholding information, not disclosing.

Intimidating, threatening, coercing.

Charming, Kissing up, getting overly close.

Exploitive: acting while person is most vulnerable.

Deceiving, making false promises.

Withholding information, not disclosing.

Intimidating, threatening, coercing.

Charming, Kissing up, getting overly close.

Exploitive: acting while person is most vulnerable.

Deceiving, making false promises.

Questions?Questions?