Elder Financial Abuse - Proving Mental Incapacity

Elder Financial Abuse - Proving Mental Incapacity
by Keith Barrett

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

A critical 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 regarding an abuse that took place several 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.

While important, this does not prove that the elder lacked the requisite mental 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 someone suffering from some stage of dementia may be of relatively sound mind during certain periods of the day, and not at other times.

Proving mental incapacity at the time of the alleged abuse can be accomplished by presenting different forms of evidence - the totality of the circumstances - that, taken together, prove that the elder had diminished capacity and was susceptible to undue influence and financial abuse.

Medical records that document the elder's mental problems near the time of the abuse are often a key form of evidence. However, medical record gathering is not always helpful. The elder may have been suffering from significant memory loss at the time of the doctor visit, but the appointment was made to address flu symptoms and the records may have been limited only to that medical issue.

Witnesses such as family members and friends can testify to their observations of the elder's mental 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 regarding the elder's behavior, and about statements the elder made that indicated a lack of understanding 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 report 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 report documenting the fact that the elder had little or no food in the refrigerator, was living in unsanitary conditions, and appeared unable to answer questions regarding financial or health care matters.

In California, Probate Code Section 811 provides a type of checklist that a medical/psychological professional can apply when assessing the elder's mental capacity. The purpose of this checklist is not to simply determine whether the elder lacks capacity in any one particular area of mental function; rather, the assessment is to determine whether a particular mental deficit adversely affected the elder's ability to resist fraud or undue influence at the time the alleged financial abuse took place.

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