Assessing CapacityChristopher Royer, Psy.D.June 20, 2014

71.5 million older Americans by 2030

5.2 million with AD in 2008

7.7 million with AD in 2030

AD only the #1 dementia

Some Perspective

Over 60 covered under the Older Adult Protective Services Act (1987)

52 Area Agencies on Aging

Reports made by anyone (can be anonymous) in any environment. Legal protection.

2400 per year receive a Guardian

Pennsylvania Perspectives

As defined under OAPSA, an older adult in need of protective services is defined as “an incapacitated person in the Commonwealth over the age of 60 who is unable to obtain or perform services necessary to maintain physical or mental health, for whom there is no responsible caretaker and who is at imminent risk of his person or property.” Additionally, an incapacitated older adult refers to an individual who, because of one or more functional limitations, needs the assistance of another person to perform or obtain services necessary to maintain physical or mental health.

American Bar Association and American Psychological Association, 2008.

Assessment of Older Adults with Diminished Capacity

Collaborative work with attorneysSeries of volumes:

Comprehensive Overview of Capicity Evaluations

Getting Prepped

Often used interchangeably

Clinical vs. Legal

Global vs. Specific Issue

Decision Making vs. Implementation

Competency and Capacity

To know what you have, understand the nature and extent of what you have, and inter-relate these ideas in such a way as to make an informed decision. Can be in a "lucid moment."

Specific Capacity ExampleTestamentary Capacity

What are some myths about capacity?

Incapacity = ________________

Clinical incapacity = legal incapacity302 = incapacityAMA = incapacityGiving away money = incapacitySexual relations in a nursing home =

incapacityHoarding = incapacityIntellectual Disabilties = incapacity

Common Myths

To give or donate moneyTo make a business contractTo convey real propertyTo assign an durable power of attorneyTo give medical consentTo consent to a sexual relationshipTo mediateTo assign advance directivesTo drive

Other Areas of Specific Capacity

Start with the assumption of capacity

Disabling conditionFunctional behaviorCognitive functioning

What is the least restrictive alternative?

Need for a Guardian

Reliable POA

Bank does finances

One or more reliable individual supports

In home care services

Technology

Less Restrictive Alternatives

Guardianship TerminologyReporterPetitionerGuardian

PlenaryLimitedEmergency

WardAIPAAA

Of the estateOf the personOf specific needs

Center for Advocacy for the Rights and Interests of the Elderly (CARIE)Study of Guardianship in the Commonwealth of Pennsylvania (2012)

How well is the Alleged Incompetent Person (AIP) able to represent him/herself when the AIP was present at the hearing only 31% of the time, despite the fact that most lawyers and judges felt strongly the AIP should be present?

CARIE 2012

How thoroughly are the rights of the Alleged Incompetent Person upheld when AIPs do

not have legal representation 25% of the time, and judges are inconsistent in appointing

counsel or insisting that AIP have counsel?

CARIE 2012

How responsive is our guardianship system to ensuring the AIP’s right to due process

when in only 1% of the cases was the hearing for guardianship held at the AIP’s

location?

CARIE 2012

How thorough is the guardianship hearing when the average hearing is only 34 minutes

for uncontested hearings?

CARIE 2012

How much do we truly invest in our guardianship systems when the majority of AAA staff that work with guardianship receive very little training specifically focusing on guardianship?

CARIE 2012

How transparent is the guardianship process when only 57% of lawyers indicated that

the entire guardianship hearing was held on the record?

CARIE 2012

Are all avenues to alternative guardianship explored when 42% of lawyers indicated

they had not been asked by the court to demonstrate they had explored alternatives to

guardianship?

CARIE 2012

Has guardianship become a defacto way to move someone into a nursing home when

42% of consumers are living in a nursing home 90 days after a guardianship appointment when the AAA is involved?

CARIE 2012

An individualA non-profit entityA Corporate FiduciaryA Guardianship agencyAn Office of AgingOccasionally can be more than one

entity

Not a potentially bias party (e.g. nursing home)

Who can be a guardian?

From the Ward’s estate

From the residential service agency

Rarely from a third party

Payment for Guardianship

InventoryManaging assetsMeeting basic needsInsuring safetyMaking all decisions (or specific if

limited guardianship)Reporting to the courtTaxes

? Is it worth it?

Primary Duties of the Guardian

General Capacity: Binary vs. Continuous

How to make the curve into a lineWhat is impaired?Functional observationsNormsDemand characteristicsEnvironment

Binary vs. Continuous

Conceptual vs. Operational

1. What is the legal standard?2. What are the functional issues?3. What is the diagnosis?4. Identify the cognitive underpinnings5. Are there psychiatric or emotional

factors?6. Cultural/Values issues7. Risk considerations8. Steps to enhance capacity9. Clinical judgment of capacity

Framework for Capacity Assessment (Grisso, 1986)

"Incapacitated person" means an adult whose ability to receive and evaluate information effectively and

communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

20 Pa.C.S. § 5501

Legal Standard

Harm to self

Harm to other

Care for self

Undue influence

Unable to care for others

Functional Elements

Dementia (many types)

Psychiatric Illness

Developmental Disability

Other medical(TBI, ALS, etc.)

Diagnosis

Cognition

Awareness

Executive Functions

Basic Functions

Chronic Mental IllnessMedication complianceTreatment history

Reactive Conditions (Depression, Grief, Anxiety)

External Stressors (family, environment during the interview, housing etc.)

Psychiatric and Emotional Factors

Much of the legal test involves communication

Cognitive tests more problematic

Longstanding values vs. current behavior

Personal wishes

Culture and Values

Home location, environment

Level of supervision needed

Depth and breadth of undue influence

Are high risk activities involved?

Issues of Risk

Medical interventionsEnvironmental alterationsMental health interventionsInsuring a comfortable evaluation

setting

Enhancing Capacity

ReferralRecordsOral communicationsObservationsPsychiatric considerationsInterviewCognitive TestingQuestions specific to the referral

Elements of the Capacity Evaluation

Office of Aging

Attorney

Family

Medical professional

Service institution

Referral

Medical reports

Medication lists

Correspondence

Bank statements

Photographs

Records

Referral sources, protective services

Collaterals

Family

Oral Communications

Physical AppearanceOverall state of health/balance/motorPain gesturesEye contactCircumstantial/tangential/vague

speechOvert concern/anxiety (is it

appropriate)Paranoid thinking/hallucinations/angerBlunted/depressed affectAwareness of deficit

Observations

Chronic mental illnessMedication effectiveness and

complianceActive symptomsPseudodementiaConsider the setting

Psychiatric Considerations

Conversation / establish rapport

Use of open-ended questions

Knowledge of reason for referral/situation

Concens about undue influence

Interview

Medical history, why in the hospital, AL etc.

Medications, kinds and use, as well as health behaviors

Knowledge of family/employment etc.

Casual coversation about problems faced, solved

Interview Continued

OrientationMemoryAttentionExpressive speechReceptive/comprehensionVisual/motorReasoning, dilemmasExecutive functions

Cognitive Assessment

So why give easy tests?

True

True

False

False

True Positive

True Negative

False Negative

False Positve

Are there pathognomonic signs of incapacity?

Making the Call

Legal standard

1. Diagnosis2. Meets standard or not, finances

and/or person3. Convergence4. Recommendations

Making the Call

Clinical advantage, we focus on the what ifs.....

e.g. patient in nursing home, socializing, med compliant, good nutrition, medically monitored, limited stress and undue influence.......

Question of Best and Worst

Supervision level

Guardianship

Treatment recs

Recommendations

Consent for evaluation

Report writing, format

Depositions, written and oral

Payment for the evaluation

Talking with attornies

Special Issues

Bias

Raterpersonal experienceculture / SES differences

Externalenvironmenthistorylikabilitypatient behaviorreferral bias

Bias

What does expert mean? The Daubert standard.

Educationattorneyfamilyjudge

Coping with opposing views

Testimony

Only one visit?Are there other reasons for incapacity

that can be improved?How much time did you spend?Were there family members present?Who gave the history?How do you account for good scores?

Testimony, Common Questions

Questions, Discussionemail: drroyer.neuropsych@gmail.com

https://docs.google.com/presentation/d/1FJz0Yfj5P-PIbR1io6pvxehRWhhxwK_tpEunfBPMBfs/pub?start=false&loop=false&delayms=3000