The following article is published on the National Committee for the Prevention of Elder Abuse website.
Mental Capacity, Consent, and Undue Influence
What do these concepts have to do with preventing elder abuse and neglect?
Evaluating alleged elder abuse often involves determining what an older person understands or understood in the past. Inducing someone to sign a legal document or give a gift, for example, may constitute abuse if the person does not fully understand the transaction, appreciate the value of what they are giving away, or comprehend the implications of what they are doing. One of the first questions often raised in abuse investigations is “did this person understand what he or she was doing when he gave a gift or transfer property. Was coercion, trickery, or undue influence employed?”
All Americans have a Constitutional right to exercise choice about how to live their lives. That extends to refusing help that is offered. If however, the person lacks sufficient mental capacity to make decisions, society may, under certain circumstances, intervene on their behalf without their consent. Consequently, another fundamental question workers must consider when they offer help is “does this person have sufficient mental capacity to accept or refuse my help?” The appropriate level and type of help that is needed will also be dictated by the person’s mental capacity.
In the past, the term “incompetent” was used to describe persons with diminished mental abilities. The term is rarely used by professionals any more because it is stigmatizing and implies a global deficit that has little practical meaning or application. As more is learned about mental function and greater attention is paid to preserving individuals’ rights, greater emphasis is placed on identifying, in functional terms, specific mental tasks and skills people retain and lose. Describing a person’s ability or “capacity” to perform particular tasks, such as remembering to pay one’s bills or calculating how much change one is owed, is a more useful and meaningful way of looking at mental disability. It enables professionals to assess vulnerability more effectively and develop effective service plans. Understanding a client’s mental capacity can help workers meet the vulnerable person’s needs while avoiding unnecessary, restrictive, or intrusive interventions.
What is Mental Capacity?
Mental capacity is the term used to describe the cluster of mental skills that people use in their everyday lives. It includes memory, logic, the ability to calculate, and the “flexibility” to turn one’s attention from one task to another. Mental status assessment is a complex process involving a variety of measurements carried out by trained professionals. Simple tests, such as the mini-mental status exam, are commonly used in a variety of settings to provide workers with a general impression of the scope and extent of a person’s deficits.
Mental capacity is affected by many factors. As people age, they may experience some natural decline in certain mental functions, particularly memory. Pronounced decline, however, signals illness or disease. A variety of factors, some of which are treatable, may contribute to mental decline. These include poor nutrition, depression, and interactions between medications. Time of day may also be a factor as some people are more alert at certain times of day than at others.
What is consent?
Consent is when someone accepts or agrees to something that somebody else proposes. For consent to be legal and proper, the person consenting needs to have sufficient mental capacity to understand the implications and ramifications of his or her actions.
What is undue influence?
In recent years, the subject of undue influence has received increasing attention in the field of elder abuse prevention. Simply stated, undue influence is when an individual who is stronger or more powerful gets a weaker individual to do something that the weaker person would not have done otherwise. The stronger person uses various techniques or manipulations over time to gain power and compliance. They may isolate the weaker person, promote dependency, or induce fear and distrust of others. Because undue influence, like mental capacity, raises the question of whether an individual is acting freely, the two concepts are often confused. Although diminished mental capacity may contribute to a person’s vulnerability to undue influence, the two are distinct and cognitive assessments cannot identify the presence of undue influence. It is typically courts that make determinations of whether or not undue influence has been exercised. In doing so, they consider a variety of factors, including whether the transaction took place at an appropriate time and in an appropriate setting and whether the older person was pressured into acting quickly or discouraged from seeking advice from others. Courts also consider the relationship between the parties and the “fairness” of the transaction.
Hornswoggled? An interview with Margaret Singer on undue influence. Nexus, A Publication for NCPEA Affiliates, March 1996.