March 03, 2015
CEA Meeting Minutes
I. Kathy Kanaley introduced the panel speakers
II. Dr. George Kelonaros, Neurologist from Catholic Medical Partners
a. Capacity is deemed by a physician
b. Capacity is different than competence
i. Competence: the degree of mental soundness necessary to make decisions about a specific issue or to carry out a specific act
ii. Capacity: an individual’s ability to make an informed decision
c. Four factors determining capacity
i. Communication and choice: does the patient understand the treatment
ii. Understanding one’s medical status: can the patient recall the treatment that just happened
iii. Appreciation: does the patient know the outcomes and consequences of treatment / no treatment
1. The patient must be able to clearly indicate the consequences if they are to deny treatment
iv. Rationalization / reasoning: can the patient weigh the treatment options and make them align with their own values
d. It is crucial to ask open ended questions to determine if the patient understands
III. Dr. Mark Gunther, Vice President of Behavioral Health at ECMC
a. 80% of neuropsychological consults have to deal with the issue of capacity
b. 3 types of capacity
i. Capacity to make medical decisions
ii. Capacity to make financial decisions
iii. Capacity to make placement decisions
c. Patient may lack capacity in one area but have capacity in other areas
d. Capacity has to do with psychometric testing
i. Ability to concentrate
ii. Ability to use language in all forms
iii. Memory function
iv. Executive control
e. Neuropsychological scores are used in diagnosis and treatment tests, but the clinical impression is more important
i. Patient can have a terrible score but still have capacity
f. A thorough understanding of the issues help facilitate better decisions reflecting the best interest of the patient
IV. Helen Ferraro-Zaffram Esq., Supervising Attorney at Legal Services for the Elderly
a. Legal Services serves as the court appointed guardian for approximately 100 people
b. Capacity fluctuates
i. This can impact the establishment of an attorney-client relationship
c. It is necessary to take the time to thoroughly walk a client through the power of attorney (POA) document
i. Make everything clear and make sure the client is able to grasp the information
1. Talk about everything in very simplistic forms
ii. Discuss the relationship with the future agent, the importance of trust, and fully explain the agent’s fiduciary obligations
1. The statutory gift rider makes it harder for an agent to steal from the principal
iii. Have the client say what their wishes are at the end of the explanation of the form to make sure they understand
iv. Look for consistency in the client’s wishes regarding the POA
1. Take good notes and maybe visit them more than once if time allows, to ensure they fully understand
v. Always make sure a client has a valid power of attorney because many have used a power of attorney as an avenue for financially exploiting the elderly
V. Candace Vogel, Esq., Erie County District Attorney’s Office
a. Capacity fluctuates
b. Criminal law looks for permission and authority
i. Did the victim have the capacity to give permission and authority?
ii. Did the defendant know the victim lacked capacity to give permission and authority?
c. Establishing adequate evidence to convince a jury to prosecute a defendant can be challenging
i. Required to prove each element of a charge beyond a reasonable doubt
ii. The burden of proof necessary for these criminal cases, coupled with the uncertainty of jury verdicts make prosecuting elder abuse cases difficult
d. Case discussion
VI. Question and answer session
a. Miguel Santos, customer advocate from National Grid is available to assist with utility issues for older adults: his number is 831-7312
b. If an older adult ends up in a hospital (for example: ECMC) and they do not have any money or relatives and need a guardian, who pays for that?
i. The person becomes the responsibility of ECMC and if the person is deemed to lack capacity, ECMC’s attorneys will initiate at Guardianship proceeding
c. If a person is acting as a POA for another person, the POA must sign all forms and documentation with their own name and also include “as agent in fact†or as POA
