PPA Capacity Talk

1. Christopher Royer, Psy.D.
June 20, 2014

3. 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

4. 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

5. 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.

6. American Bar Association and American
Psychological Association, 2008.

7. Collaborative work with attorneys
Series of volumes:

10. Often used interchangeably
Clinical vs. Legal
Global vs. Specific Issue
Decision Making vs. Implementation

11. 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."

12. Incapacity = ________________

13. Clinical incapacity = legal incapacity
302 = incapacity
AMA = incapacity
Giving away money = incapacity
Sexual relations in a nursing home =
incapacity
Hoarding = incapacity
Intellectual Disabilties = incapacity

14. To give or donate money
To make a business contract
To convey real property
To assign an durable power of attorney
To give medical consent
To consent to a sexual relationship
To mediate
To assign advance directives
To drive

15. Start with the assumption of capacity
Disabling condition
Functional behavior
Cognitive functioning
What is the least restrictive alternative?

16. Reliable POA
Bank does finances
One or more reliable individual supports
In home care services
Technology

17. Reporter
Petitioner
Guardian
Plenary
Limited
Emergency
Ward
AIP
AAA
Of the estate
Of the person
Of specific needs

18. Study of Guardianship in the
Commonwealth of Pennsylvania
(2012)

19. 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?

20. 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?

21. 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?

22. How thorough is the guardianship hearing
when the average hearing is only 34 minutes
for uncontested hearings?

23. 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?

24. How transparent is the guardianship process
when only 57% of lawyers indicated that
the entire guardianship hearing was held on the
record?

25. 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?

26. 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?

27. An individual
A non-profit entity
A Corporate Fiduciary
A Guardianship agency
An Office of Aging
Occasionally can be more than one entity
Not a potentially bias party (e.g. nursing
home)

28. From the Ward’s estate
From the residential service agency
Rarely from a third party

29. Inventory
Managing assets
Meeting basic needs
Insuring safety
Making all decisions (or specific if limited
guardianship)
Reporting to the court
Taxes
? Is it worth it?

31. How to make the curve into a line
What is impaired?
Functional observations
Norms
Demand characteristics
Environment

33. 1. What is the legal standard?
2. What are the functional issues?
3. What is the diagnosis?
4. Identify the cognitive underpinnings
5. Are there psychiatric or emotional
factors?
6. Cultural/Values issues
7. Risk considerations
8. Steps to enhance capacity
9. Clinical judgment of capacity

34. "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

35. Harm to self
Harm to other
Care for self
Undue influence
Unable to care for others

36. Dementia (many types)
Psychiatric Illness
Developmental Disability
Other medical(TBI, ALS, etc.)

37. Awareness
Executive Functions
Basic Functions

38. Chronic Mental Illness
Medication compliance
Treatment history
Reactive Conditions (Depression, Grief,
Anxiety)
External Stressors (family, environment
during the interview, housing etc.)

39. Much of the legal test involves
communication
Cognitive tests more problematic
Longstanding values vs. current behavior
Personal wishes

40. Home location, environment
Level of supervision needed
Depth and breadth of undue influence
Are high risk activities involved?

41. Medical interventions
Environmental alterations
Mental health interventions
Insuring a comfortable evaluation setting

42. Referral
Records
Oral communications
Observations
Psychiatric considerations
Interview
Cognitive Testing
Questions specific to the referral

43. Office of Aging
Attorney
Family
Medical professional
Service institution

44. Medical reports
Medication lists
Correspondence
Bank statements
Photographs

45. Referral sources, protective services
Collaterals
Family

46. Physical Appearance
Overall state of health/balance/motor
Pain gestures
Eye contact
Circumstantial/tangential/vague speech
Overt concern/anxiety (is it appropriate)
Paranoid thinking/hallucinations/anger
Blunted/depressed affect
Awareness of deficit

47. Chronic mental illness
Medication effectiveness and compliance
Active symptoms
Pseudodementia
Consider the setting

48. Conversation / establish rapport
Use of open-ended questions
Knowledge of reason for referral/situation
Concens about undue influence

49. 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

50. Orientation
Memory
Attention
Expressive speech
Receptive/comprehension
Visual/motor
Reasoning, dilemmas
Executive functions

52. True
True
False
False
True Positive
True Negative
False Negative
False Positve

55. Legal standard
1. Diagnosis
2. Meets standard or not, finances and/or
person
3. Convergence
4. Recommendations

56. 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.......

57. Supervision level
Guardianship
Treatment recs

58. Consent for evaluation
Report writing, format
Depositions, written and oral
Payment for the evaluation
Talking with attornies

60. Rater
personal experience
culture / SES differences
External
environment
history
likability
patient behavior
referral bias

61. What does expert mean? The Daubert
standard.
Education
attorney
family
judge
Coping with opposing views

62. 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?

63. email:
drroyer.neuropsych@gmail.com
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