The aforementioned legal and medical definitions notwithstanding, the inquiry into whether an acquaintance, client, friend or loved one is “incapacitated” is often a troubling and difficult issue. A “checklist” provided by a legal treatise for use by attorneys may provide a general framework for determining whether a guardianship should be considered in other contexts:
Regan, Gilfix, Morgan and English, Tax, Estate & Financial Planning for the Elderly, §L:3 at L-21.
In addition, the following assessment tools may provide guidance in the exploration of this area, and assist in the decision as to whether further evaluation is necessary.
1. Functional Assessment
A functional assessment involves the examination of the individual’s behavior in order to assess that individual’s contextual capacity, Thus, because the law requires differing standards of capacity for different tasks (such as making a will or deciding health issues), functional assessments recognize that an individual may be incapacitated for some purposes but not for others. See Regan, Gilfix, Morgan and English, Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-35.
2. Cognitive Assessment
A cognitive assessment is a traditional mental health assessment to assess an individual’s orientation to time, place, person and intellectual functioning. Such assessments include the Mini Mental State, Short Portable Mental Status Questionnaire, and the Mental Status Questionnaire. See Regan, Gilfix, Morgan and English, Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-36.
In the event that you suspect that an acquaintance, client, friend or loved one is incapacitated and that a guardianship may be appropriate, you can report your concerns to a variety of sources, including the individual’s family, close friend or medical doctor. If the individual is institutionalized, you can report your concerns to the administrator of the facility. If the individual is not institutionalized, and the individual’s family, friends or medical doctor are unable or unwilling to take notice of your concerns (or if you know of no family members, friends or treating doctors of the individual), you may also contact Adult Protective Services.
Where you have concerns about a vulnerable, possibly incapacitated elder, you may also have concerns about the related issue is elder abuse, broadly defined as the infliction of harm on an older adult. American Psychological Association website, Aging Issues: Elder Abuse and Neglect: In Search of Solutions.
An elderly person who is frail, dependent on others, and living in a vulnerable situation is a candidate for abuse.
Some signs of abuse to watch for include:
Periodic visits of elderly clients by social workers, nurses and other professionals can be critical in the early detection of elder abuse.
The following examples may be indicators that financial exploitation is occurring or has occurred:
The Basics: What is Elder Abuse?, National Center for Elder Abuse, elderabusecenter.org.; Financial Abuse, National Committee for the Prevention of Elder Abuse.
The likelihood of becoming a victim of financial exploitation increases if the elder is:
Undue Influence and Financial Exploitation, Matrix AdvoCare Network, Vol. 14, No. 2; Financial Exploitation: Family Self-Help Guide, AARP Legal Services Network, New Jersey Edition.
If you suspect that an elder may be the victim of abuse, there are a number of places you can report your concerns, including the following:
For additional information regarding Guardianship and Conservatorship, call us at 908-232-7400 or click here to contact us online.