Bonnie Olsen, Ph.D.

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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

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Topics

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

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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

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Conditions Leading to Vulnerability

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

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Dementia

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

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Prevalence of Dementia

• 65 year old gt 5
• 75 year old gt 15
• 85 year old gt 45

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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

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Dementia
Diagnostic Distribution
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Dementia

• ALZHEIMERS DISEASE
• Typical onset in 70s - 80s
• Early onset - mid 50s
• Memory ? first symptom (encoding deficit)
• Lack of insight
• Impairment in functional skills IADLs
• Lack of content to speech
• Agitation and Anxiety Common

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Dementia

• Diagnosis of Alzheimers disease
• Neurological Exam normal
• MRI shows atrophy
• SPECT scan biparietal decreased perfusion
• Neuropsychological test impairment in multiple
  domains

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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

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Dementia

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

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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

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Delirium

• Reversible
• Due to metabolic or physiologic cause
• Common etiologies
• Infection
• Toxicity
• Anesthesia
• Medication
• Dehydration

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Delirium

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

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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

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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

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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.

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Depression
Unique to older populations

• Depression and anxiety often coexist
• Often complicated by dementia/cognitive decline
• Lower threshold for treatment
• Treat as syndrome

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Depression

• Associated with medical conditions
• Diabetes
• Stroke
• Heart attack
• Cancer

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ANXIETY

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

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Anxiety Symptoms

• Cognitive
• worry, poor concentration
• Somatic
• fatigue, muscle tension, poor sleep
• Emotional
• restlessness, irritability

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The Conceptual Basis

• Evaluating Vulnerability and Capacity

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Four Concepts Are Critical To Understanding Abuse

• Autonomy
• Vulnerability
• Capacity
• Undue Influence

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AUTONOMY TO GOVERN ONES SELF. Autonomy Is
The Highest Principle in Legal, Psychological and
Medical Issues
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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 notUNDULY
INFLUENCED.
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VulnerabilityAny Condition Severe Enough That
Another Person Could Use It To Unduly Influence
You or Take Advantage of You.
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Most Vulnerable Conditions Are Diagnosable
Disorders
Can lead to lack of capacity
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Capacity The Legal DefinitionVaries From
State to StateDepends upon the kind of
transaction involvedMost Involve Two Things
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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 ones own circumstance, to
  identify consequences to self and others of the
  decision, to weigh risks against benefits for
  self.

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Capacity Is Not AbsoluteIt Is Relative To The
Complexity Of The Decision To Be MadeYou can
have capacity to make one kind of decision but
not another.
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Capacity Relates To Being Able To Make a
Decision

• Whats a Decision?
• the rational evaluation of alternatives
• understanding the implications of the choices
• choosing the one that is best for oneself

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Issue How Much CapacityIs Enough Capacity?

• Well.what are you trying to decide?

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Legal/Medical Decisions Of Different
LevelsTestamentary capacityMarriageContractu
al capacityHaving surgeryParticipation in
research.
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Capacity Is Not The Same As Diagnosis

• Diagnosis (dementia, mental retardation,
  psychosis) does not tell you the persons
  capacity.
• Capacity must be individually assessed.

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Capacity Is Not The Same As IQ

• IQ measures acquired knowledge and abilities.
• Regardless of IQ, capacity still has to be tested.

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Capacity Is Not Equivalent To Physical Changes In
The Brain

• Brain scans neither prove
• nor disprove capacity.
• Provide good correlative evidence

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Conditions That Contribute To Vulnerability

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

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Assessing Capacity A Three-Step Process
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Four Conditions That Impair Capacity Under The
Law

• Cognitive Impairment
• Severe Mood Disturbance
• Perceptual Distortion
• Thought Processing Defects

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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.

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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

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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

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Can The Person Think Logically, Rationally and
Abstractly?

• Executive Functions
• logic organize
• consequences plan
• judgment alternatives
• insight reason

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Step Two Assess for Other Deficits

• Mood disorders
• (depression anxiety)
• Perceptual disturbances
• (hallucinations)
• Thought disorders
• (delusions)

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Step 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

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

• The perpetrators 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

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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

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Five Common Forms of Undue InfluenceIts
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.

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Questions?