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What
do these concepts have to do with preventing elder abuse
and neglect?
Evaluating
alleged elder abuse often involves determining what an
older person understands or understood in the past. Inducing
someone to sign a legal document or give a gift, for example,
may constitute abuse if the person does not fully understand
the transaction, appreciate the value of what they are
giving away, or comprehend the implications of what they
are doing. One of the first questions often raised in
abuse investigations is "did this person understand what
he or she was doing when he gave a gift or transferred
property. Was coercion, trickery, or undue influence employed?"
All
Americans have a Constitutional right to exercise choice
about how to live their lives. That extends to refusing
help that is offered. If however, the person lacks sufficient
mental capacity to make decisions, society may, under
certain circumstances, intervene on their behalf without
their consent. Consequently, another fundamental questions
workers must consider when they offer help is "does this
person have sufficient mental capacity to accept or refuse
my help?" The appropriate level and type of help that
is needed will also be dictated by the person's mental
capacity.
In
the past, the term "incompetent" was used to describe
persons with diminished mental abilities. The term is
rarely used by professionals any more because it is stigmatizing
and implies a global deficit that has little practical
meaning or application. As more is learned about mental
function and greater attention is paid to preserving individuals'
rights, greater emphasis is placed on identifying, in
functional terms, specific mental tasks and skills people
retain and lose. Describing a person's ability or "capacity"
to perform particular tasks, such as remembering to pay
one's bills or calculating how much change one is owed,
is a more useful and meaningful way of looking at mental
disability. It enables professionals to assess vulnerability
more effectively and develop effective service plans.
Understanding a client's mental capacity can help workers
meet the vulnerable person's needs while avoiding unnecessary,
restrictive, or intrusive interventions.
What
is Mental Capacity?
Mental
capacity is the term used to describe the cluster of mental
skills that people use in their everyday lives. It includes
memory, logic, the ability to calculate, and the "flexibility"
to turn one's attention from one task to another. Mental
status assessment is a complex process involving a variety
of measurements carried out by trained professionals.
Simple tests, such as the mini mental status exam, are
commonly used in a variety of settings to provide workers
with a general impression of the scope and extent of a
person's deficits.
Mental
capacity is affected by many factors. As people age, they
may experience some natural decline in certain mental
functions, particularly memory. Pronounced decline, however,
signals illness or disease. A variety of factors, some
of which are treatable, may contribute to mental decline.
These include poor nutrition, depression, and interactions
between medications. Time of day may also be a factor
as some people are more alert at certain times of day
than at others.
What
is consent?
Consent
is when someone accepts or agrees to something that somebody
else proposes. For consent to be legal and proper, the
person consenting needs to have sufficient mental capacity
to understand the implications and ramifications of his
or her actions.
What
is undue influence?
In
recent years, the subject of undue influence has received
increasing attention in the field of elder abuse prevention.
Simply stated, undue influence is when an individual who
is stronger or more powerful gets a weaker individual
to do something that the weaker person would not have
done otherwise. The stronger person uses various techniques
or manipulations over time to gain power and compliance.
They may isolate the weaker person, promote dependency,
or induce fear and distrust of others. Because undue influence,
like mental capacity, raises the question of whether an
individual is acting freely, the two concepts are often
confused. Although diminished mental capacity may contribute
to a person's vulnerability to undue influence, the two
are distinct and cognitive assessments cannot identify
the presence of undue influence. It is typically courts
that make determinations of whether or not undue influence
has been exercised. In doing so, they consider a variety
of factors, including whether the transaction took place
at an appropriate time and in an appropriate setting and
whether the older person was pressured into acting quickly
or discouraged from seeking advice from others. Courts
also consider the relationship between the parties, and
the "fairness" of the transaction.
Resources
for leaning more about capacity, consent, and undue influence:
Dejowski,E.
(1990). Protecting judgment-impaired adults: Issues,
interventions, and policies. Binghamton, NY: Haworth
Press.
Hornswoggled?
An interview with Margaret Singer on undue influence.
nexus, A Publication for NCPEA Affiliates, March
1996.
Last
Updated March 2003
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