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. . . are the most important forensic psychiatry issues for the geriatric psychiatrist. A basic principle is that the terms competence (or "competency") and capacity must always be qualified by the question "for what?" Capacity only can be assessed in relation to a specific demand or task. Areas of mental deficiency can leave a patient competent for one task, for example, for writing a will ("testamentary capacity"), but not for another, such as managing an apartment building. The skilled geriatric psychiatrist will be familiar with the assessment of capacity in order to assist the patient, and perhaps the family or attorney, to act within the full range of activity appropriate to the situation.
The above principles were the basis for the revision of the California Probate Code that took effect in January 1997. Dr. Stephen Read served as a geriatric psychiatry consultant to the Committee on Probate and Estates Committee of the California Bar Association that drafted the text for the amended code section. Other terms that may be relevant to capacity and competence issues, especially in the context of geriatric psychiatry, include the following (the text is not offered as legal definition, but as illustrative and explanatory statements; action should not be taken without appropriate legal and, if indicated, medical/psychiatric consultation):
Competency (or competence)--refers to the determination that a person retains the capacity for a specific action. See the discussion of "capacity" and the comments above.
Capacity--In the context of geriatric psychiatry and forensic psychiatry, refers to the intact ability to respond to a particular situation with appropriate appreciation and to act in one's own self-interest. A person may lack capacity for a number of different reasons: memory impairment (e.g. Alzheimer's Disease), inability to read or understand language (e.g. stroke), loss of brain functions related to judgment and planning and initiative (e.g. frontal lobe disorders), hopelessness and loss of self-worth (e.g. depression). A person with otherwise intact mental faculties may have capacity compromised by "undue influence."
Will Contests--refers to a dispute about a will post mortem. The dispute may reside in a claim that the testator (person who made the will) lacked capacity at the time it was made or that it was completed under "undue influence," i.e. that it does not represent the true wishes or free will of the testator.
Testamentary Capacity--capacity to make a will. Details of needed skills vary somewhat according to jurisdiction, but in general to have testamentary capacity, a person must understand what a will is, know the extent of his or her estate (sometimes referred to as "bounty"), and know the "the natural objects of their bounty." The latter refers to, for example, living relatives. The testator is not required to distribute bounty to their "natural objects," only that if another choice is made, that it is made knowingly.
Conservatorship--A legal status resulting from a determination of incapacity by a court. The person judged to be incompetent becomes a "conservatee," decisions for whom are made by a "conservator" appointed by the court and operating under the court's authority. The conservator may be a family member, or may be an unrelated person or a professional. The need for licensure for conservators is being actively debated in California. Specific legal grounds for conservatorship vary by jurisdiction. In California, conservatorship for psychiatric conditions is referred to as an "LPS" conservatorship (in reference to the Lanterman-Petris-Short Act); conservatorship for other conditions is referred to as a "probate" conservatorship.
Guardianship--A term equivalent to conservatorship used in some jurisdictions.
Criminal Responsibility--An area of forensic psychiatry that may be complex and controversial. In British and American common law, for a wrongful act ("actus reus") to be a crime, the person committing the act must have a "guilty mind" ("mens rea"). A defense of "not guilty by reason of insanity" (NGRI) may be tendered on the grounds that the defendant did not "know" or "appreciate" the meaning and consequences of his or her actions (note that the elements necessary for NGRI vary substantially by jurisdiction). Expert testimony may assist the jury's understanding of how a particular mental condition may or may not have compromised the defendant's capacity for criminal responsibility. Increasingly, with the aging of the population, these issues are being raised with elderly defendants. The experience of a geriatric psychiatrist may then be of special relevance. Note that criminal responsibility and competence or capacity to stand trial bear no necessary relation to each other.
Competency to Stand Trial--Differs from "criminal responsibility" in that it refers to the time frame of the trial and to the capacity of the defendant to contribute to his or her defense. The defendant found "incompetent to stand trial" may subsequently be confined for treatment of the causative condition.
Elder Abuse--activity undertaken knowingly with consequences harmful to an elderly person. Subtypes are overt physical injury, neglect, financial, or emotional abuse. The geriatric psychiatrist may be asked to evaluate the vulnerability to and/or the magnitude and effects of an alleged or determined abuse. In California there medical practitioners are required to report suspected abuse and extra penalties may be assessed for those found guilty of elder abuse. The elderly may be at increased risk of abuse because of physical frailty, mental lapses, dependency, and/or isolation as well as other factors.
Long Term Care--An "umbrella" term referring to the complex of services and activities employed to support the person with chronic disorders. Since the aged are more likely to require long term care, the geriatric psychiatrist is often an integral part of the treatment team of a long term care patient. Optimal psychiatric care can reduce the intensity of services needed in long term care, even, at times, relieving the person's disability.
Alzheimer's Disease--Considered now to be the most common cause of progressive loss of memory and cognitive dysfunction in the elderly. Alzheimer's Disease (AD) is ultimately diagnosed by examination of brain tissue, but diagnosis in life is highly accurate if made by a geriatric psychiatrist or other specialist familiar with the clinical features, functional brain effects, and complications of AD. Patients with early AD may have impairments that compromise capacity but are overlooked by casual observers. Such patients are vulnerable to abuse or to undue influence.
Dementia--refers to a syndrome of memory impairment plus other acquired cognitive impairments (language, judgment and other "executive functions," recognition) that causes "significant impairment in social or occupational function." Evaluation of dementia is an area of special expertise for the geriatric psychiatrist. Although Alzheimer's Disease is the most common cause, many other disorders can cause dementia, including stroke and cerebro-vascular insults, frontal lobe degenerative disorders (including Pick's disease), Parkinson's disease, severe mood disorder such as depression, hydrocephalus, Creutzfeldt-Jakob (prion) Disease, or head injury. Symptoms suggestive of dementia can also result from severe medical illness, vitamin deficiency, or, sometimes, effects of over-medication.
Memory Disorders--self explanatory. The geriatric psychiatrist has become used to the self-diagnosis of Alzheimer's Disease in an elderly person complaining of memory problems. Differentiating AD from worry, depression, anxiety, medication effects, or other illnesses (see "Dementia") is a fundamental area of activity for geriatric psychiatry.
Depression--In psychiatry, as in "real life," a term used to refer both to transient sadness and unhappiness (including grief), and to more severe and pervasive mood disturbance that is associated with changes in energy, mental alertness, sleep, appetite, and/or other mental and physical functions. Severe depression may be mistaken for an irreversible dementia or a malignancy. Skilled treatment of co-existent depression has been shown to improve the outcome of other illnesses and conditions, including stroke, hip fracture, chronic pain syndromes, and myocardial infarction. The geriatric psychiatrist istrained in the evaluation and treatment of depression in the face of medical and cognitive disorders (see "Alzheimer's Disease" and "Dementia") in the elderly. The forensic psychiatrist may be called on to evaluate the role of depression in terms of capacity or for its influence on other aspects of a legal situation.
Geriatric Psychiatrist--A psychiatrist with special training in the evaluation and treatment of older persons. To become a psychiatrist, a medical school graduate must complete four years of post-graduate training (previously referred to as an "internship" and a "residency"). Upon completion of the four years, the physician is termed "board-eligible." Those who take and pass the written and oral examination offered by the American Board of Psychiatry and Neurology earn the status of "board-certified." Following residency one may choose to continue training in a "fellowship" (e.g., in geriatric psychiatry) for one or more years. Those who complete an accredited fellowship in a subspecialty and are board-certified in psychiatry can then become "board-certified" in the sub-specialty by passing an additional examination.
Traumatic Brain Injury--self-explanatory. The damage resulting from head trauma can be devastating to brain function, but more subtle mental impairments can also result. Functional brain damage may occur in the absence of loss of consciousness or of changes in the appearance of the brain on MRI or X-ray CT scanning. Other terms that may be applicable are "post-concussion syndrome" or "TBI." Evidence suggests that the elderly are more vulnerable to damage from mild head trauma; they are also more prone to other disorders that can affect memory and cognitive symptoms that can overlap with the symptoms of traumatic brain injury. The forensic psychiatrist trained in geriatric psychiatry may be called upon to address such a complicated situation.
Frontal Lobe Disorders--The frontal lobes are the largest part of the human cerebrum; damage to the frontal lobes can result in devastating or mild impairments in personality, initiative, judgment, efficiency of recall (an aspect of "memory"), impulse control, and other aspects sometimes referred to as "executive functions." The frontal lobe may be impaired as a result of cerebrovascular disease (e.g. stroke) or trauma; there are also progressive degenerative disease that afflict frontal lobes preferentially and therefore give a different clinical problem compared to Alzheimer's Disease. The geriatric psychiatrist should have experience in evaluating and treating these disorders. Frontal lobe impairment can impact many functions relevant to aspects of forensic psychiatry.
Nursing Home--a generic term that refers to one of several types of institutions that may be required for long term care (see above). More specific terms are "skilled nursing facility," "rehabilitation facility," "convalescent home or facility." These programs are conducted in accordance with extensive regulations, with the common denominator being the primary provision of medical and nursing care. The incidence of psychiatric disorders in skilled nursing facilities has been found to be greater than 90% in some studies. In addition, the use of psychotropic medications can be of great benefit, but their misuse has resulted in serious (and often highly publicized) consequences. The Geriatric Psychiatrist can play an invaluable role in alleviating the affects of psychiatric illness while minimizing morbidity in the nursing home. Skilled geriatric psychiatry care can in some cases improve a patient's function so as to remove the need for nursing home care.
Expert Witness--A person with special knowledge and/or experience whose testimony is accepted by the court for the purpose of furthering the understanding of certain specific issues within the witness' area of expertise that are before the court. For example, the forensic psychiatrist may be called upon to testify on aspects of mental function or psychiatric impairment. A geriatric psychiatrist may be requested to testify about the effects of memory impairment on capacity to make a will or on vulnerability to abuse or undue influence due to areas of mental deficiency. Qualification as an expert is governed by rules particular to different jurisdictions.
Undue Influence--refers to an area of particular complexity for the forensic psychiatrist with a geriatric patient, partly because of the absence of firm definitions and clear boundaries for the terms. Everyone is subject to influence throughout his or her life and indeed it is often appropriate to respond to influence. An elderly patient, however, may be "vulnerable" to the exercise of influence because of being unable properly to evaluate the purpose and motivation of the influencer because of mental impairment. The geriatric patient may also be dependent on the influencer that militates against acting in proper self-interest. The influencer may conduct him or herself in such a way as to distort the situation to aggravate the patient's mental impairments or dependency. The geriatric psychiatrist's expertise in this forensic psychiatry question is to delineate the degree of impaired mental function, if any, that could render the patient vulnerable and to assist with evaluating the quality of influence that existed. The judgment of whether influence was "undue" is properly left to the judicial process.
Many of the terms below also have relevance to the issue of capacity and competence, particularly for the geriatric psychiatrist:
Durable Power of Attorney
Durable Power of Attorney for Health Care
Psychiatric Effects of Medical Illness