A. MICHAEL WOLFE, Ph.D.
Mental Capacity & Undue Influence
With the aging of our society there is increasing concern about mental capacity and decision-making ability. The fastest growing segment of our population consists of individuals over the age of 80. Fortunately, for most of our elders, judgment, insight and other mental abilities remain intact. Unfortunately, disorders like Alzheimer’s disease, Parkinson’s disease, and other types of dementia, can compromise one’s mental abilities. When such diseases do occur, an individual may loose their ability to make important decisions with regard to finances, medical treatment or other important decisions. The ability to care for one’s self and remain safe in one’s home because of a mental disability is often a pressing concern. Driving ability is another pressing concern of worried family members.
Along with our aging population there is a tremendous transfer of wealth occurring from the World War II Generation to the baby boomers. This constitutes the largest intergenerational transfer of wealth ever with estimates up to 10 trillion dollars.
Other issues include a beak-down in the traditional family structure. Large numbers of individuals are getting divorced and remarried. With children now from 2nd 3rd and even 4th marriages there is greater conflict within families, particularly over issues of money and control. Unfortunately more and more of these cases are coming to the attention of the courts.
Advanced age in itself does not mean that an individual has lost his or her mental abilities. For example, memory at age 80 is not expected to be as good as it was when we were much younger and that is perfectly normal. Likewise, the speed at which we process information and carry out many tasks is expected to be slower. Naming or word finding difficulty is another common complaint among older individuals. This is another typical change that occurs with aging and in itself does not mean that something is seriously wrong with your mental abilities.
Petitions for guardianship or conservatorship often come before the courts when there is concern about one’s parent or another loved one’s mental abilities. California state law is very specific in how we determine competency. For example there must be a deficit in one or more of a person’s mental abilities. This may include such categories as alertness and attention, memory and understanding, disturbed thought processes like hallucinations or delusions, or the inability to regulate one’s emotions. Importantly, the deficit must be severe enough to significantly impair the person’s ability to understand or appreciate the consequences of his or her actions with regard to the specific ability in question.
In other words, age or diagnosis alone does not mean a person is incompetent. The person must be really impaired in his of her ability to do something or understand exactly what it is he or she is doing.
Usually, a loving and concerned family member initiates such legal proceedings because they are concerned about their loved one’s best interests. However, some individuals will attempt to gain control of their family member’s assets for their own selfish purposes. For example, to buy a house, which may not be in the best interest of the elder or to support a drug or gambling habit.
Another serious type of abuse concerns “Undue Influence.” This involves an individual in a position of trust who takes unfair advantage of another’s weakness of mind, necessity or distress. For example, a caretaker may borrow or simply takes thousands of dollars, for their own purposes, with no intention of repaying the client.
These examples constitute elder abuse and fiduciary abuse and are against the law. If you suspect that such abuse is being perpetuated you should report it to Adult Protective Services. You may also contact your local FAST (Financial Abuse Specialist Team) for guidance on such matters. Many counties in California have adopted such programs to provide guidance to individuals and professionals with concerns about elder abuse.
A neuropsychological evaluation can often be helpful to clarify issues of competency and decision making capacity. For example the neuropsychological exam can provide measurable data about a person’s mental abilities and answer specific questions about what a person can or cannot do given their current level of functioning, (i.e. write checks, pay bills, manage one’s assets, drive a car). Attorneys and CPA’s working with elderly individuals may also seek a neuropsychological evaluation to determine if their client has the mental capacity to change a will, manage their finances, sell a business and so on.