the fine line between incompetence and poor judgment
TRANSCRIPT
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Surround Care™ Surrounding a Life with Care: The Right Sized Care Throughout the Stages & Ages
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Looking for Friends in All the Wrong Places: The Fine Line Between Incompetence and Poor Judgment
By: Martha Kern
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Examine the meaning of competence
Explore poor judgment and possible causes
Review the Guardianship process
Identify possible remedies that do not remove rights
Objectives
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1 Competence = Ability to Make a Decision
2 But does the decision have to be what we consider “sensible”?
Defining Competence
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The Story of Eleanor
Lives in a high rise
“Independent” at the age of 84
Referred by her attorney
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Red Flags
Eleanor cannot walk Surrounds herself with “caregivers”
More help needed? Hang a sign in the
hallway
An effective “system” of care
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But There Are Problems…The other caregiver took the credit card to Louisiana
Problems
People come and go in the night
Drugs are missing
Cash is missing
One of the caregivers might be in jail
The door is unlocked to permit access
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Incompetence or Poor Judgment?
Is Eleanor Incompetent?
Are these good decisions?
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Competence revolves around decision-making ability
Must recognize that a decision needs to be made
How complex is the decision?
How to Assess
What are the consequences?
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Necessary Components of Decisional Capacity
The ability to communicate
choice
Understanding the relevant information
Appreciating the situation
and its consequences
Manipulating information rationally
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Open-Ended Questions….and Answers
“Yes” or “No” choices can be expressed even by the overtly demented
Lucid rationale requires more cognitive ability
Open-ended questions addressing the reasoning
behind a choice
Ability to weigh options and contemplate
consequences
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1 2
34
Changes to a will/estate plan
often require 2-3 meetings
Grave decisions require more
Rational manipulation of information
Consistent reasoning over time
Depth of Consequence
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Eleanor’s Reasoning
1 2 3 4
Liked living alone
Unlicensed “caregivers” are cheaper
Rejected caregiver who
used credit card
These people are
her “friends”
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Benefits and Risks
For Eleanor, the benefits outweigh the dangers
Unspoken needs may be met
Competent, but poor decisions
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The Role of Loneliness/Social Isolation
Lucy
1
2 Loneliness may cause the suspension of customary caution
3 Lucy’s Situation
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Lucy’s Story
Contacted by the police
1Lucy is in her 80s, lives alone
2Bank concerned
about recent money wires
3
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The gentlemen from Nigeria
Lottery winnings at stake
Wellness checks when phone unanswered
“Probably a scam”It’s my money and I can
spend it as I please
True?
The Scam
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52
3
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1. Lucy’s home is immaculate
2. Lucy is well-groomed
3. She eats well and has a full refrigerator
4. Spotless driving record
5. Bills are paid
Other Salient Facts
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Incompetence or Poor Judgment?
1
2
3
4
Incompetent?
What needs are being satisfied?
Attention may be flattering and exciting
Romance?
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Loneliness May Influence Customary Thought Process
Lots of older adults fall for “scams”
Otherwise functional
Loneliness may inspire risk, social thrills
Costly friendships
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Poor judgment and dementia
A sign of mild cognitive impairment
Decisions that compromise safety warrant concern
But a declaration of
incompetence?
Red Flags
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Signs of Mild Cognitive Impairment (Mayo Clinic)
You forget important
events such as appointments
You forget things more
often
You lose your train of
thought or the thread of conversation
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Signs Continued
You feel increasingly overwhelmed by decisions
1
Trouble finding way around
2
You become impulsive or show
poor judgment3
Family/friends take notice
4
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Other Factors
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How is Incompetence Determined?
Not necessarily one appointment
Physician determines whether or not a person is incompetent
Open-ended questions
Willing to complete a report for court
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Stakes are high
Cannot be used to halt decisions we don’t like
Guardianship involves loss of rights
The Risks
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George
1
2
3
George and his daughters
Taking girlfriend to church, spending
time with her
Called us about seeking
guardianship
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About George
Met with George on another matter
Lucid, alert, oriented
Daughters did not like his having a girlfriend
Worried about inheritance?
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Definition of a Disabled Adult in Illinois
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“A person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” 755 ILCS 5/11a‐2
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The Guardianship ProcessDetermination of whether or not there are Powers of Attorney
Petition for guardianship
Hearing before a judgeContestable
Physician report
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Contract
Marry/Divorce
Own Weapons Vote
Drive/TravelWork
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5
6
Removal of Personal Rights
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Type of Guardianship
Limited
Plenary
Guardian of Person
Guardian of Estate
Temporary
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Definitions
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Temporary•Used in an emergency situation and can last no longer that 60 days
•Evidence must be shown for the need of the immediate protection
Plenary•Used when an individual’s mental, physical, and adaptive limitations necessitate a guardian who has the power to make all important decisions regarding the individual’s personal care and finances
Limited•Person with disabilities can make some, but not all, decisions regarding his/her person or estate or both
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When to Seek GuardianshipPoor judgment professional assessment
Guardianship is a last resort
Risk? A marked change from customary behavior?
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Until Guardianship is Warranted…
Introduce professional support Care managers
CaregiversMunicipal/township services
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“Friends” Who Support and Protect
Provide guidance, monitoring
No loss of rights
Manage/reduce loneliness
Support for decisions
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Determination of Capacity is a Slippery Task
Sometimes abundantly clear, sometimes not
Assess in the home (telltale signs)
Physician evaluation
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Self determination
is the ideal
Protection from harm
Undue influence/financial
devastation
When in doubt, seek
professional assessment
Guardianship Removes Rights….But Also Protects
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Resources
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http://healthland.time.com/2013/08/02/social-isolation-leads-to-risky-financial-decisions/?iid=hl-main-lead
http://www.mayoclinic.com/health/mild-cognitive-impairment/DS00553
http://www.stanford.edu/group/psylawseminar/Competency.htm
http://www.gbfamilylaw.com/Articles/The-Mentally-Incompetent-Party.shtml
http://www.apa.org/pi/aging/resources/guides/practitioners-should-know.aspx#
http://www.aplaceformom.com/blog/2013-02-18memory-loss-retirement-savings/
http://en.wikipedia.org/wiki/Mental_status_examination
http://www.mobility-equipment-training.com/impaired-judgement.html
http://www.competence-capacity.com/
http://www.gov.ns.ca/health/mhs/pubs/seniors/competency_ingeriatrics_101.pdf
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