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June 2022 | Volume 15 | Issue 6

In March 2022, we invited Dispatch readers to register for the Elder Justice Decision-Making Capacity Symposium: The Role of Decision-Making Capacity in Elder Justice Cases that Reach Civil and Criminal Courts. This virtual Symposium was held April 19–21, 2022. By shedding light on the latest science as well as best clinical, legal and judicial practices, the Symposium sought to increase access to justice while promoting the self-determination of older adults.

Attended by more than 1500 elder justice professionals, the Symposium addressed access to justice issues for older adults in elder abuse cases involving possible diminished decision-making capacity. There was a rich agenda with 20 speakers (see biographical sketches) over the three days.

Ten Principles on Mental Capacity and the Law

(Adapted from Benjamin Franklin, Poor Richard’s Almanack.)

  1. The lawyer who fails to presume capacity fails the client.
  2. Welcome family but talk to thy client alone.
  3. To support a client’s capacity is to invest wisely.
  4. Thou shouldst never worship any one standard for capacity.
  5. Only the hasty covet the mini-mental status exam.
  6. Thou shouldst never end any query with the word “capacity.” Yea, the proper query shall be, “Capacity to do What?”
  7. A true assessment seeks the big picture, with all its variability, intermittency, and nuance.
  8. Honor thy client’s own considered or habitual standards of behavior and values, not standards and values held by thee or others.
  9. Honor thy client’s confidentiality and autonomy even in the face of incapacity.
  10. The best plan for maintaining capacity is to plan for incapacity.

After a warm welcome from Associate Attorney General Vanita Gupta, attendees learned from Charlie Sabatino about the ten principles associated with decision-making capacity. The refrain of this talk—echoed by programming throughout the Symposium—was that there is no generic global capacity; instead, discussions of capacity must always end with the question, “Capacity for what?” Dr. Jason Karlawish then explained the science underlying many of Sabatino’s principles. Because law enforcement does not always understand how decision-making capacity is assessed, a panel of three clinicians then discussed how decision-making capacity assessments are conducted in practice. This presentation was augmented by a discussion of various issues associated with capacity assessment such as forensic vs. clinical assessments, informed consent, and retrospective assessments. The first day of the symposium culminated in a discussion of the ethics surrounding the assessment of decision-making capacity, with Nina Kohn providing three concrete actions to improve capacity assessments, including the necessity for clinicians to understand the legal standard associated with each type of decision-making capacity.

The second and third day of the symposium were designed to show how decision-making capacity affects criminal and civil elder justice cases. Using case scenarios, panels of elder justice professionals discussed how their respective professions are impacted by decision-making capacity. Day 2 focused on criminal cases (financial exploitation and criminal neglect), with adult protective services (APS) and law enforcement (represented by Detective Skip Swain) describing how capacity affects their work as first responders and subsequent investigations. In a recap, National Elder Justice Coordinator Andy Mao emphasized that capacity screens conducted by APS may not be relevant for criminal investigations and that law enforcement should simply document what they observe rather than using APS’s labels or their own. A prosecutor on the panel explained the importance of a capacity assessment, but also explained why assessment of decision-making capacity is not always warranted, while a judge reiterated the dangers of “leaps of logic” in capacity assessment reports and urged fellow judges to carefully scrutinize these reports. A clinician on the panel emphasized the need for elder justice professionals seeking clinical services to question the clinician, observing that an MD or PhD after the name does not sufficiently indicate whether the clinician is qualified to conduct a capacity assessment.

Day 3 focused on civil cases (guardianship, financial exploitation, and contested wills); these were discussed by an APS caseworker, a civil legal attorney, a public guardian, a judge, and a clinician. The panel discussion began with Sabatino’s Principle #1, stipulating that all adults are assumed to have decision-making capacity. In the first case discussed, involving guardianship, a skilled nursing facility physician provided a capacity assessment to the court consisting of a single line of conclusory text that the resident was incapacitated. The clinician on the panel observed that this is “woefully inadequate” and explained what is involved in assessing capacity in a guardianship case, including capturing what the older adult values. Regarding the contested will case, the clinician candidly explained that while at times a retrospective capacity assessment can be conducted, this is not always possible; it depends on the facts of the case.

Throughout the virtual conference, there was a lively and informative exchange of ideas and information in the chat. One item of relevance to law enforcement that engendered considerable attention in the chat was the situation in which a guardian misuses the funds of a person subject to guardianship and law enforcement expresses the belief that these are “civil matters.” To clarify, due to their fiduciary duty, guardians are prohibited from spending the funds or selling the property of a person subject to guardianship in any manner they see fit. The fiduciary duty requires the guardian to manage funds and property in a manner that is consistent with the wishes of the person subject to guardianship and to ensure there are sufficient funds for the life of person subject to guardianship. Theft and other forms of financial exploitation are criminal offenses, even when the alleged offender is a court-appointed guardian. When a guardian violates their fiduciary duty by personally benefiting from the financial transaction or in other ways, the person subject to guardianship at a minimum deserves an investigation by law enforcement. Persons subject to guardianship lose many of their civil rights: this necessitates more scrutiny, not less.

Many states are fortunate to have a criminal financial exploitation statute that explicitly identifies financial exploitation by a guardian. For example, the Florida statute, titled Exploitation of an elderly person or disabled adult; penalties, reads: “Breach of a fiduciary duty to an elderly person or disabled adult by the person's guardian, trustee who is an individual, or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property” (Fla. Stat. § 825.103(1)(c) (2020)).

Finally, law enforcement was urged to work with an elder abuse multidisciplinary team (MDT), as this was a considered best practice. Working with an MDT diminishes misunderstandings and results in the best outcomes for victims of elder abuse, including persons subject to guardianship. With your help, we can increase access to justice for older Americans.


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