travel partner: Elder Financial Abuse ? Proving mental ...

Thursday, August 25, 2011

Elder Financial Abuse ? Proving mental ... - Right At Home Senior Care

Elder Care Agencies Service

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Proving that an elder suffered from some form of reasoning incapacity is a key element in winning an elder financial abuse case. There are many ways in which reasoning incapacity can be shown.

A valuable factor to keep in mind is that the elder?s incapacity must have existed at the time the abuse took place. Often, an elder abuse attorney is contacted by an elder?s family members with regard to an abuse that took place any years ago. The family describes how the elder currently suffers from short or long term memory loss, is forgetful and unable to remember to pay bills, keep doctor?s appointments, or take medications on time.

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While important, this does not prove that the elder lacked the valuable reasoning capacity at the time the alleged abuse took place. Dementia and Alzheimer?s disease are progressively worsening conditions and increase over the years. It is also true that man suffering from some stage of dementia may be of relatively sound mind during inevitable periods of the day, and not at other times.

Proving reasoning incapacity at the time of the alleged abuse can be done by presenting separate forms of evidence ? the totality of the circumstances ? that, taken together, prove that the elder had diminished capacity and was susceptible to undue sway and financial abuse.

Medical records that document the elder?s reasoning problems near the time of the abuse are often a key form of evidence. However, healing narrative convention is not always helpful. The elder may have been suffering from valuable memory loss at the time of the physician visit, but the appointment was made to address flu symptoms and the records may have been slight only to that healing issue.

Witnesses such as family members and friends can testify to their observations of the elder?s reasoning capacity at the time of the alleged abuse. Although these witnesses are not psychiatrists or psychologists, they can still tell the jury about their personal observations with regard to the elder?s behavior, and about statements the elder made that indicated a lack of comprehension and forgetfulness.

Police records may exist that document the elder was found in his or her car, lost and unable to remember how to get home.

Adult Protective Services (Aps) may have received a narrative from a concerned neighbor or friend that the elder was found wandering from home, or that the elder had not left the house or answered phone calls for weeks at a time. An Aps worker may have conducted an investigation, interviewed the elder, and written a narrative documenting the fact that the elder had slight or no food in the refrigerator, was living in unsanitary conditions, and appeared unable to talk questions with regard to financial or condition care matters.

In California, Probate Code Section 811 provides a type of checklist that a medical/psychological expert can apply when assessing the elder?s reasoning capacity. The purpose of this checklist is not to naturally decide whether the elder lacks capacity in any one singular area of reasoning function; rather, the estimation is to decide whether a singular reasoning deficit adversely affected the elder?s capability to resist fraud or undue sway at the time the alleged financial abuse took place.

All of these factors, taken together, can furnish ample evidence under the law that an elder was mentally incapacitated and thus subjected to financial abuse.

Elder Financial Abuse ? Proving mental Incapacity