Traditionally, guardianship has resulted in a complete loss of decision-making ability. Several state legislatures have passed laws allowing for limited guardianship, although orders for limited guardianship remain underutilized.10 Limited guardianship delineates specific areas of incompetence and limits the guardian’s decision-making authority to those areas while leaving intact the ward’s ability to make all other decisions for himself or herself.
The use of less-restrictive alternatives to guardianship—such as powers of attorney, durable powers of attorney, living wills, payees, and trusts—is increasing. A power of attorney allows a patient to authorize a specific individual to act on his or her behalf. The scope of the power of attorney can be limited, such as to manage finances or even to a specific transaction, such as selling a home or car. A durable power of attorney also allows an agent to make decisions on the patient’s behalf but becomes active only when the patient becomes incompetent. It often is used to appoint an individual to make medical decisions on behalf of an incompetent patient. Living wills allow patients to determine what treatment they would like in the event they become incompetent.
Elder abuse. An estimated 1 to 2 million adults age >65 have been abused, exploited, or neglected.12 Elder abuse includes physical abuse, neglect, emotional abuse, sexual abuse, and financial exploitation (including undue influence). Most states have mandatory reporting of elder abuse, although they vary regarding who must report and what the report must entail. Psychiatrists should be vigilant in looking for signs of elder abuse (Table 2),13 regardless of the reason for the consult.
Table 2
Signs of elder abuse: What to wlook for
| Type of abuse | Signs |
|---|---|
| Physical | Bruises, burns (especially circular, suggesting cigarette burns), slap marks |
| Sexual | Unexplained sexually transmitted diseases, bruises in genital area, breasts, or anal area |
| Emotional | Withdrawal, new-onset depression |
| Financial | Sudden loss of property, unusual increase in spending, checks paid in large, round numbers, checks marked as gifts or loans |
| Neglect | Malnutrition, lack of medical care, poor hygiene, pressure ulcers |
| Source: Reference 13 | |
10 tips for thorough evaluations
1. Consider the context of the consultation. This includes medical factors (such as the patient’s condition, prognosis, relationship with the treatment team, and recommended course of treatment), legal factors (eg, pending litigation and relevant legal standards for issues such as guardianship), and psychosocial issues (eg, the patient’s current support structure and family conflicts).
2. Identify the legal issue and any relevant legal standards. The legal standard will inform you of the issues you need to address in the evaluation. If an attorney has consulted you, ask him or her to provide the legal standard.
3. Gather relevant collateral information, which may include interviews with family members or a review of financial or medical records.
4. Explain the purpose of the examination and the limits of confidentiality.
5. Perform a focused psychiatric evaluation, paying special attention to cognitive functioning, reasoning, and unusual thought content such as delusional beliefs.
6. Perform an interview specific to the referral issue.
7. Consider using a relevant assessment instrument.
8. Consider psychological testing, laboratory testing, imaging, or further medical evaluation. These assessments can help determine the diagnosis, the cause of any deficits in capacity, and whether any deficits are reversible.
9. Determine what opinions you are able to render. Limit opinions and remember that it may be appropriate to decline to address certain issues if there is insufficient information or if the issue is outside your area of expertise.
10. Prepare a written report. Consider the audience. Minimize the use of medical jargon and define all medical terms. State your opinions clearly and with reasonable medical certainty (in most jurisdictions, this means more likely than not). State the basis for all opinions.
For a case study that provides an example of a psycho-legal evaluation of a geriatric patient, see the Box.
Case study: Unfaithfully yours?
Mr. A, age 75, recently started taking a dopaminergic agonist to treat Parkinson’s disease. He says he wants to divorce his wife of 35 years because of “scandalous affairs” she allegedly engaged in. His wife reports that he has been accusing her of having affairs with various men, including a man who recently painted their house.
On evaluation, Mr. A’s Mini-Mental State Examination score is 30/30. He has no signs of depression and his sleep patterns have not changed. There have been no changes in his spending patterns, although he no longer gives his wife money for grocery shopping, telling her to get money from her “boyfriends.” He is adamant about this decision, saying, “It’s my money and I can do with it as I please. This is still a free country, isn’t it?”
He says he has $70,000 in his individual retirement account, $20,000 in his bank account, and receives a pension of $1,785 per month. He estimates that his home is worth $200,000. His financial records essentially are consistent with his reports. He is able to perform basic calculations without difficulty and is aware of his monthly expenses. He describes his relationship with his wife by saying, “It was fine until she started screwing around.”
When asked about the likely consequences of his decision, he shrugs and says, “I guess she’ll have to get money from her boyfriends. I don’t really care who she sees as long as they stay away from me.” He denies having thoughts of harming his wife or her alleged “boyfriends.” He recognizes that his wife might divorce him, leaving him alone.
When I ask Mr. A if it is possible he is mistaken in his belief that his wife is having affairs, he says, “No, doctor. You don’t know her.” When I ask how he knows she is having affairs, he says that the painter started looking at him “funny” and that the busboy at a restaurant they frequent called his wife “dear.” He believes his wife is having sexual relations with both of these men.
Does Mr. A require a guardian? I opine that Mr. A requires a guardian of estate (to manage his property) but not a guardian of person because he is capable of making decisions about his medical care and other personal decisions. He is failing to care for his wife because of his delusional jealousy. Although cognitively intact, he is unable to appreciate the consequences of his actions or rationally manipulate information because of his delusional thinking. He believes he is “cutting off” an unfaithful spouse when, in fact, there is no evidence that she has been unfaithful. His inability to rationally manipulate information is demonstrated by the fact that he uses innocuous facts such as a busboy calling his elderly wife “dear” to support his delusion that she was having affairs.
I note that his psychosis is reversible because it is likely due to his antiparkinsonian regimen. However, he declines both a dose reduction in his medication and antipsychotic treatment. I note that should his psychosis resolve, he may regain financial decision-making capacity.