Assessing Vulnerability,
Capacity & Undue Influence
in Elder Abuse
Bonnie Olsen, Ph.D.
Clinical Professor of Medicine
Elder Abuse Forensic Center
Program In Geriatrics
University of California, Irvine
Topics:
Normal aging
 Conditions contributing to vulnerability
 Conceptual framework for evaluation
of vulnerability and capacity
 Components of assessment
 Forms of undue influence
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Age-related Cognitive Change
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Expect little change in memory before 70
Then only slight decline encoding vs. retrieval
General intellectual skills persist
Speed, flexibility & multi-tasking decline
slightly
Compensated by wisdom & experience
Conditions Leading to
Vulnerability
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Dementia, cognitive impairment
Psychiatric disorders
Depression, Anxiety
Loneliness, Isolation, Grief
Disability
Substance abuse (Rx, OTC,OTB)
Dementia
Degenerative
 Impairment in memory and
at least one other cognitive
domain
 Effects IADL functioning
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Prevalence of Dementia:
 65
year old = > 5 %
 75 year old = > 15 %
 85 year old = > 45%
DEMENTIA
Differentiating types:
 Most distinct early in disease
process
 More similar as it progresses
 Important if it informs:
Treatment
 Prognosis
 Caregiving needs
 Vulnerability to abuse

Dementia
Diagnostic Distribution
8%
2%
Alzheimer's Disease
Vascular Dementia
30%
60%
Other Degenerative
Dementia
Other Causes
Dementia
ALZHEIMER’S DISEASE:
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Typical onset in 70’s - 80’s
Early onset - mid 50’s
Memory  first symptom (encoding deficit)
Lack of insight
Impairment in functional skills: IADL’s
Lack of content to speech
Agitation and Anxiety Common
Dementia
Diagnosis of Alzheimer’s disease:
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Neurological Exam normal
MRI shows atrophy
SPECT scan biparietal decreased
perfusion
Neuropsychological test impairment in multiple
domains
Dementia
VASCULAR DEMENTIA:
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Also called microvascular disease, multi-infarct
dementia
Impairment in frontal/subcortical circuits
Look for risk factors (heart, diabetes, HTN)
Subtle decline in speed of processing
Memory  due to poor retrieval
Other retrieval problems - word finding
Usually some insight
Emotional lability/depression
Usually personality preserved
Dementia
Lewy Body Dementia:
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Onset in 70’s, faster course
Initial symptoms include:
- change in personality (delusions)
- visual hallucinations
- impaired visuospatial skills (pentagons)
- fluctuating attention
- motor impairment - parkinsonism
Dementia
Frontotemporal Dementia:
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Also Picks Disease
Initial symptoms before 65 yrs.
First symptom in self-regulation/executive
function
Lack of personal awareness
Impaired interpersonal conduct
Lack of insight
Memory NOT impaired initially
Delirium
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Reversible
Due to metabolic or physiologic cause
Common etiologies:
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Infection
Toxicity
Anesthesia
Medication
Dehydration
Delirium
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Disturbance of consciousness, arousal
Fluctuates over time
Develops quickly (hours, days)
Change in other cognitive functions
Can coexist with dementia, depression,
anxiety
Depression
Diagnostic Criterion:
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Depressed mood
Loss of pleasure or interest
Weight loss or gain
Insomnia or hypersomnia
Psychomotor agitation or retardation
Fatigue or loss of energy
Feelings of worthlessness or guilt
Decreased concentration
Recurrent thoughts of death or suicide
Depression
Symptoms in Older Adults:
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Fewer mood symptoms (sadness)
Fewer ideational symptoms (guilt,
suicidality)
More somatic complaints (pain, GI)
More cognitive impairment
(attention, memory, indecisiveness)
More delusional symptoms
Depression
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Major Depression: 1– 2% of geriatric
population, lower than in other age groups.
Minor Depression: approx. 16% of geriatric
population, higher than other age groups.
Depression in the general population is 3
times as common in women than men.
May be reversed in geriatric population.
Suicide rate highest for elderly men than
any other group.
Depression
Unique to older populations:
Depression and anxiety often coexist
 Often complicated by
dementia/cognitive decline
 Lower threshold for treatment
 Treat as syndrome
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Depression
Associated with medical conditions:
 Diabetes
 Stroke
 Heart attack
 Cancer
ANXIETY
Incidence
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Frequent symptom in geriatric population
Rarely diagnosed or treated directly in
geriatric population
Anxiety Symptoms
 Cognitive:
worry, poor concentration
 Somatic:
fatigue, muscle tension, poor sleep
 Emotional:
restlessness, irritability
Evaluating Vulnerability
and Capacity
The Conceptual Basis
Four Concepts Are Critical To
Understanding Abuse
Autonomy
Vulnerability
Capacity
Undue Influence
AUTONOMY:
TO GOVERN ONE’S SELF.
Autonomy Is The Highest Principle
in Legal, Psychological and
Medical Issues
AUTONOMY:
YOU HAVE THE
RIGHT TO MAKE YOUR OWN DECISIONS,
GOOD OR BAD,
STUPID OR SMART,
WHETHER OTHERS AGREE OR NOT,
if you have the CAPACITY to make them
& you are not
UNDULY INFLUENCED.
Vulnerability:
Any Condition Severe Enough That
Another Person Could Use It To
Unduly Influence You or
Take Advantage of You.
Most Vulnerable Conditions
Are Diagnosable Disorders
Can lead to lack of capacity
Capacity:
The Legal Definition
Varies From State to State
Depends upon the kind of
transaction involved
Most Involve Two Things
Key Phrase in California Probate Code 812
The Person Must “Understand and Appreciate”
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“Understand” can be assessed by having person
re-state key facts regarding decision or act or
process information adequately.
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“Appreciate” requires ability to relate
information to one’s own circumstance, to
identify consequences to self and others of the
decision, to weigh risks against benefits for self.
Capacity Is Not Absolute:
It Is Relative To The Complexity
Of The Decision To Be Made
You can have capacity to make one
kind of decision but not another.
Capacity Relates To Being Able
To Make a “Decision”
What’s a “Decision”?
the rational evaluation of alternatives
 understanding the implications of the
choices
 choosing the one that is best for
oneself
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Issue:
How Much Capacity
Is “Enough” Capacity?
Well….what are you trying to
decide?
Legal/Medical Decisions
Of Different Levels
Testamentary capacity
Marriage
Contractual capacity
Having surgery
Participation in research.
Capacity Is Not The Same
As Diagnosis
 Diagnosis
(dementia, mental
retardation, psychosis) does not
tell you the person’s capacity.
 Capacity
must be individually
assessed.
Capacity Is Not The Same As IQ
IQ measures acquired
knowledge and abilities.
Regardless of IQ, capacity still
has to be tested.
Capacity Is Not Equivalent To
Physical Changes In The Brain
Brain scans neither prove
nor disprove capacity.
Provide good correlative
evidence
Conditions That Contribute
To Vulnerability:
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Dementia, Cognitive impairment
Psychotic disorders
Depression, Anxiety
Disability
Loneliness, Grief, Isolation
Substances (Rx, OTC,OTB)
Assessing Capacity:
A Three-Step Process
Four Conditions That
Impair Capacity Under The Law
Cognitive Impairment
Severe Mood Disturbance
Perceptual Distortion
Thought Processing Defects
Step One: Can The Person
Process Information And
Think Logically In General?
(Does the machinery work?)
You have to actually test for it.
Common mistake is to assume person is OK.
Processing Information For Capacity
Purposes Requires At A Minimum
1. Attention, concentration
2. Orientation, Short-term memory
3. Retrieval of long-term memory
4. Language: comprehension and
expression
5. Visual-spatial abilities
6. Reasoning
Why are some things
remembered and not others ?
 Recall
old memories but NOT
new
(long term vs. short term)
 Recall emotional events but not
ordinary
 Recall
big picture but not details
Can The Person Think Logically,
Rationally and Abstractly?
“Executive Functions”
logic
consequences
judgment
insight
organize
plan
alternatives
reason
Step Two:
Assess for Other Deficits
Mood disorders
(depression & anxiety)
 Perceptual disturbances
(hallucinations)
 Thought disorders
(delusions)
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Step Three : The Interview
Appreciating This Decision
• Reasons for the decision
• Consequences of the decision
• Benefits and risks of the decision
• Alternatives considered
• Consistency of the decision
Undue Influence
exerting inappropriate influence
over a vulnerable person in order
to change his/her decision or
behavior.
Undue Influence
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The perpetrator’s “will” is substituted for
the “will” of the victim
Victim acts subject to the will or purposes
of the perpetrator
Victim agrees to give the perpetrator
money or property
Assessment of Undue Influence
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Examine the dynamic interplay between the
victim and the perpetrator
Medical diagnosis, mental illness, cognitive
impairment is not necessary
Affected by mental capacity, medical issues and
environmental factors
Manipulation, coercion, compulsion or restraint
occurs as a direct result of the relationship
Five Common Forms of Undue Influence:
It’s WICKED!
Withholding information, not disclosing.
Intimidating, threatening, coercing.
Charming, Kissing up, getting overly close.
Exploitive: acting while person is most
vulnerable.
Deceiving, making false promises.
Questions?