Dementia Epidemic and the Law

1. Dementia Epidemic and the Law Presented by: Mary McFaden Molly Dear Abshire Harris County District Attorney’s Office Wright Abshire, Attorneys Elder Exploitation Division A Professional Corporation 713.274.5600 713.660.9595 mcfaden_mary@dao.hctx.netMolly@wrightabshire.com

2. WHAT IS ELDER ABUSE? Physical abuse Sexual abuse Neglect Exploitation Emotional abuse Abandonment Self-neglect

3. WHO DOES IT AFFECT? • Elder abuse can affect people of : • ALL ETHNIC BACKGROUNDS • ALL SOCIAL STATUSES • MEN and WOMEN

4. WHAT’S THE BIG DEAL??

5. LET’S TALK LOCALS…

6. Statistics/Data U.S. • The 2010 Census, 65 + • 40.3 million, or 13% of the total population. • By 2050: • 65+ are expected to comprise 20% of total population •  85+ • 2010 = 5.8 million people aged 85 or older • 2050 = projected 19 million people aged 85 or older

7. Living longer…GREAT!! • Except… • People with dementia are at greater risk of elder abuse • ~5.1 million elders 65+ have some kind of dementia • 85+ : close to half have Alzheimer’s disease or another kind of dementia. • 2009 study: close to 50% of people with dementia experience some kind of abuse • 2010 study: 47% of participants with dementia had been mistreated by their caregivers

8. Overview of Dementia

9. Capacity or No Capacity for Estate Planning… • This is the question when executing Testamentary Documents (i.e. Wills)

10. Definition of Capacity • The ability, capability, or fitness to do something; a legal right, power or competency to perform an act • No psychological diagnoses for “capacity”

11. To Have Testamentary Capacity • Must have “sound mind”

12. Sound Mind = • Understand the Will and effect of making a Will, and • Know the general nature and extent of their property and the person(s) dependent upon them for support • Collect all of the above information and hold it long enough to perceive the obvious relationship of one to each other, and • Be able to form a reasonable judgment

13. Burden of proof is with the proponent of the Will

14. Only Lucid Interval Required • Testator may lack capacity immediately before and after time of execution

15. Contractual Capacity Must be able to: • appreciate the effect of their acts • understand the nature and consequences of their acts, and • understand the business they are transacting

16. Donative Capacity • Contractual capacity, plus • Must understand gift is irrevocable and that it reduces their estate

17. Informed Consent for Health Care Decisions • Consent must be, voluntary and informed • Person could have mental capacity and not have informed consent.

18. Techniques for Determining Capacity • Interview client alone, 2 times if able • Advanced age does not mean lack of capacity • Physical infirmity does not mean lack of capacity • Observe and interact • Gather outside information • Consider a home visit • Determine if medications, or lack of, are contributing factors • Pick witnesses to Will wisely • Use an independent examiner

19. Determining Incapacity • Guardianship proceedings with sufficient medical evidence to prove incapacity • Alternatives to guardianship

20. Dementia and Criminal Law • CRIMINAL: • Theft • Theft by Deception • Theft by Diminished Capacity • Misapplication of Fiduciary Property • Securing the Execution of a Document by Deception • Fraudulent Use or Possession of Identifying Information • Exploitation of an Elderly Individual

21. Starting Point What is the victim’s present capacity? Competent Decreased or diminished capacity? Incompetent

22. Theft statute • A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. • Appropriation of property is unlawful if it is without the owner's effective consent. • "Effective consent" includes consent by a person legally authorized to act for the owner.

23. Consent Consent is not effective if : • (A) induced by deception or coercion; • (C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions; • (E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property

24. Size of the Problem?? • Hard to determine • Adult Protective Services (APS) agencies show an increasing trend in the reporting of elder abuse • One study estimated that only 1 in 14 cases of elder abuse ever comes to the attention of authorities • Another study estimated that only 1 in 23 cases of elder abuse is every reported

25. Fraud Against Elderly in US

26. TEXAS REQUIREMENTS MANDATORY REPORTING! If a person has cause to believe an elderly person is being abused, neglected or exploited that person shall report it. Tex. Hum. Res. Code Ann Sec 48.051 Failure to report Elder Abuse and Exploitation is a Class A misdemeanor punishable by a fine not to exceed $4,000 and/or confinement in jail not to exceed one year. Tex. Penal Code Ann. Sec 12.21

27. TEXAS REQUIREMENTS II No Exceptions to statute, even if the knowledge is obtained during the scope of employment or whose communications are generally confidential If an attorney, medical practitioner, clergy discovers abuse, neglect or exploitation, they must report it. Confidentiality is waived. Statute provides immunity from civil and criminal liability for reporters unless report made in bad faith or malicious purpose. Tex. Hum. Res. Code Ann. Sec 48.054

28. Legal Duty of Attorney • Scope of representation? • Disciplinary Rules of Professional Conduct 1.02(a) & 1.02(g). requires: • that an attorney take reasonable action to secure the appointment of a legal guardian if the lawyer reasonably believes that the client lacks capacity and such action is necessary to “protect the client”.

29. Helpful Numbers • Texas Department of Family and Protective Services (DFPS) • 800-252-5400 (Austin) (Abuse/Neglect Hotline) / www.dfps.state.tx.us • 800-647-7418 (Abuse in MHMR facilities) • Intakes 24 hours a day: abuse, neglect, or exploitation of children, the elderly, or people with disabilities; referral for investigation by local TDPRS office. • Texas Department of Aging and Disability Services (DADS) • 888-963-7111 (Health facility compliance) / www.dshs.state.tx.us • Abuse/neglect of children or elders in licensed health care facilities, investigation of complaints against facilities or persons licensed by TDH, community education on health care, individualized advice, mailing of forms-documents and referral services. • Attorney General’s Office - Medicaid Fraud Control Unit • 800-252-8011 • Harris County Guardianship Program • 713-363-2300 / http://www.hc-ps.org/guardianship.aspx • Manages the affairs of an adult person who is incapacitated and without other resources. • For generic guardianship information: http://www.harriscountytx.gov/probate/crt3/guardianship.aspx • Harris County Area Agency on Aging • 832-393-4301 / http://www.houstontx.gov/health/Aging/ • Part of a nationwide network coordinating supportive services for the elderly as mandated by the Older Americans Act of 1965 and its subsequent amendments

30. Questions?