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Dementia Epidemic and the Law
Presented by:
Mary McFaden Molly Dear AbshireHarris County District Attorney’s Office Wright Abshire, AttorneysElder Exploitation Division A Professional Corporation713.274.5600 [email protected] [email protected]
Physical abuse Sexual abuse Neglect Exploitation Emotional abuse Abandonment Self-neglect
WHAT IS ELDER ABUSE?
Elder abuse can affect people of : ALL ETHNIC BACKGROUNDS ALL SOCIAL STATUSES MEN and WOMEN
WHO DOES IT AFFECT?
WHAT’S THE BIGBIG DEAL??
LET’S TALK LOCALS…
POPULATION 2014 Estimate
Texas 26,956,958
Texas: 65 + 11.5% 3,100,050
Harris County 65 +
9.2% 2,480,040
Houston* 65 + 9.0% 2,426,426
• The 2010 Census, 65 + • 40.3 million, or 13% of the total population.
• By 2050:• 65+ are expected to comprise 20% of total population
• 85+• 2010 = 5.8 million people aged 85 or older
• 2050 = projected 19 million people aged 85 or older
Statistics/Data U.S.
• Except…
• People with dementia are at greater risk of elder abuse
• ~5.1 million elders 65+ have some kind of dementia
• 85+ : close to half have Alzheimer’s disease or another kind of dementia.
• 2009 study: close to 50% of people with dementia experience some kind of abuse
• 2010 study: 47% of participants with dementia had been mistreated by their caregivers
Living longer…GREAT!!
Overview of Dementia
Capacity or No Capacity for Estate Planning…
• This is the question when executing Testamentary Documents (i.e. Wills)
Definition of Capacity
• The ability, capability, or fitness to do something; a legal right, power or competency to perform an act
• No psychological diagnoses for “capacity”
To Have Testamentary Capacity
• Must have “sound mind”
Sound Mind =
• Understand the Will and effect of making a Will, and
• Know the general nature and extent of their property and the
person(s) dependent upon them for support
• Collect all of the above information and hold it long enough to
perceive the obvious relationship of one to each other, and
• Be able to form a reasonable judgment
Burden of proof is with the proponent of the Will
Only Lucid Interval Required
•Testator may lack capacity immediately before and after time of execution
Contractual Capacity
Must be able to:
• appreciate the effect of their acts
• understand the nature and consequences of their acts, and
• understand the business they are transacting
Donative Capacity
• Contractual capacity, plus
• Must understand gift is irrevocable and that it reduces their estate
Informed Consent for Health Care Decisions
• Consent must be, voluntary and informed
• Person could have mental capacity and not have informed consent.
• Interview client alone, 2 times if able
• Advanced age does not mean lack of capacity
• Physical infirmity does not mean lack of capacity
• Observe and interact
• Gather outside information
• Consider a home visit
• Determine if medications, or lack of, are contributing factors
• Pick witnesses to Will wisely
• Use an independent examiner
• Guardianship proceedings with sufficient medical
evidence to prove incapacity
• Alternatives to guardianship
• CRIMINAL:• Theft
• Theft by Deception
• Theft by Diminished Capacity
• Misapplication of Fiduciary Property
• Securing the Execution of a Document by Deception
• Fraudulent Use or Possession of Identifying Information
• Exploitation of an Elderly Individual
Dementia and Criminal Law
IncompetentCompetent
Starting Point
What is the victim’s present capacity?
Decreased or
diminished capacity?
• A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
• Appropriation of property is unlawful if it is without the owner's effective consent.
• "Effective consent" includes consent by a person legally authorized to act for the owner.
Theft statute
Consent is not effective if :
• (A) induced by deception or coercion;
• (C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;
• (E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property
Consent
• Hard to determine
• Adult Protective Services (APS) agencies show an increasing trend in the reporting of elder abuse
• One study estimated that only 1 in 14 cases of elder abuse ever comes to the attention of authorities
• Another study estimated that only 1 in 23 cases of elder abuse is every reported
Size of the Problem??
Fraud Against Elderly in US
MANDATORY REPORTING! If a person has cause to believe an elderly person is being abused, neglected or exploited that person shall report it. Tex. Hum. Res. Code Ann Sec 48.051
Failure to report Elder Abuse and Exploitation is a Class A misdemeanor punishable by a fine not to exceed $4,000 and/or confinement in jail not to exceed one year. Tex. Penal Code Ann. Sec 12.21
TEXAS REQUIREMENTS
No Exceptions to statute, even if the knowledge is obtained during the scope of employment or whose communications are generally confidential
If an attorney, medical practitioner, clergy discovers abuse, neglect or exploitation, they must report it.
Confidentiality is waived. Statute provides immunity from civil and criminal
liability for reporters unless report made in bad faith or malicious purpose. Tex. Hum. Res. Code Ann. Sec 48.054
TEXAS REQUIREMENTS II
Scope of representation? Disciplinary Rules of Professional Conduct
1.02(a) & 1.02(g). requires: that an attorney take reasonable action to secure the
appointment of a legal guardian if the lawyer reasonably believes that the client lacks capacity and such action is necessary to “protect the client”.
Legal Duty of Attorney
Texas Department of Family and Protective Services (DFPS) 800-252-5400 (Austin) (Abuse/Neglect Hotline) / www.dfps.state.tx.us 800-647-7418 (Abuse in MHMR facilities) Intakes 24 hours a day: abuse, neglect, or exploitation of children, the elderly, or people with disabilities; referral for investigation by local
TDPRS office.
Texas Department of Aging and Disability Services (DADS) 888-963-7111 (Health facility compliance) / www.dshs.state.tx.us Abuse/neglect of children or elders in licensed health care facilities, investigation of complaints against facilities or persons licensed by
TDH, community education on health care, individualized advice, mailing of forms-documents and referral services.
Attorney General’s Office - Medicaid Fraud Control Unit 800-252-8011
Harris County Guardianship Program 713-363-2300 / http://www.hc-ps.org/guardianship.aspx Manages the affairs of an adult person who is incapacitated and without other resources. For generic guardianship information: http://www.harriscountytx.gov/probate/crt3/guardianship.aspx
Harris County Area Agency on Aging 832-393-4301 / http://www.houstontx.gov/health/Aging/ Part of a nationwide network coordinating supportive services for the elderly as mandated by the Older Americans Act of 1965 and its
subsequent amendments
Helpful Numbers
Questions?
