Looking For Friends In All The Wrong Places: The Fine Line Between Incompetence And Poor Judgment

Eleanor proudly told us she lived alone, but that wasn’t entirely true.

In the night, people came and went through the door she left unlocked.

During the day, people also came and went, most of whom were on the unofficial cash payroll Eleanor had developed to ensure her needs were met. There were caregivers. There was a personal organizer and another person who paid bills. If additional services were needed, Eleanor simply hung a sign in the hallway of her high-rise building to advertise for help.

From Eleanor’s perspective, this system worked rather well. She had people in the building, unofficially on-call, who she could summon at a moment’s notice for help. She had effectively found a way to have 24-hour care without actually allowing someone to live in her space.

There were, however, problems with the system.

One of the caregivers was living in another condo Eleanor owned, and sometimes dropped out of a sight for a few days. Eleanor speculated that the caregiver might be in jail.

Another of the caregivers, a male with whom Eleanor seemed infatuated, had taken her credit card to Louisiana where he had family and, allegedly, looked for a place the two of them could share. He also spent some of Eleanor’s money on gifts for his family and other travel expenses.

Then there was the missing cash. Eleanor had prepared a number of greeting cards for her grandchildren and inserted cash in each one. The cards remained in place but all of the cash was gone.

Dozens of Valium tablets were missing.

When asked about who might have stolen the cash and pills, Eleanor explained it was impossible for her to know. She couldn’t walk and, once she went to bed at night, it was anyone’s guess who was coming in and out of her apartment. The door was unlocked, after all, and just about everyone in the building knew it.

Is Eleanor Incompetent?

The degree to which Eleanor seems to be putting herself at risk certainly warrants evaluation and consideration of potential incompetence. While she is alert and oriented, and can readily explain her rationales for choosing these courses of action, it would seem that the risk to benefit ratio in this scenario is, at best, borderline. Eleanor’s needs are essentially being met, but at what cost to her safety?

Competence or decisional capacity means, simply, the ability to make a decision. A given individual must first recognize that a decision needs to be made; the complexity and/or unfamiliarity of the decision will determine just how much and what type of decisional capacity this individual must have to safely render it. Choosing between three lunch options requires very little capacity, while determining whether to have cancer surgery or chemotherapy clearly calls for much greater competence.

The necessary components of decisional capacity include:

The ability to communicate choice;
Understanding the relevant information;
Appreciating the situation and its consequences;
Manipulating information rationally (Applebaum).

While even overtly demented individuals can proffer a “yes” or “no” response to simple choices (“Do you want coffee today?”), offering a lucid rationale for this choice, and doing so consistently over time, is typically not an outcome experienced with those further along the spectrum of cognitive deficiency. If we ask the client “Why do you want coffee?” or “What are the benefits of coffee versus tea?”, it is unlikely that a detailed, rational response will result with this population.

The appreciation of a situation (i.e. the existence of a serious illness) and the consequences of a decision (i.e. favorable prognosis versus a lesser outcome) are vital to the concept of decisional capacity. A simple “yes” or “no” will not suffice when the gravity of a decision is considerable. An individual should be able to weigh the pros and cons of each choice, manipulating the information rationally, to arrive at a decision and to express consistent thought processes over time. Often, an attorney will meet with a client two to three times when a major change to the estate plan is proposed and the client has exhibited memory deficits. These repeated meetings help determine if the client holds a particular set of beliefs and preferences over time, and is not merely succumbing to undue pressure from a beneficiary in the moment.

Eleanor’s World

The care environment established by Eleanor made perfect sense to her. She explained her resistance to having a live-in caregiver in her home. She did not want someone sharing her relatively small space all the time and seemed to suggest that hiring a live-in caregiver would be indicative of a declining level of function she was not ready to acknowledge.

Eleanor was further able to rationally explain the following:

She was irritated by the caregiver’s use of her credit card and had summarily dismissed him over it. In a less favorable choice, she was attempting to lure him back to her apartment so she could call the police and have him arrested.
She understood that professional, supervised caregivers and care managers could help her with all of her needs. They would be licensed and bonded, and overseen by professionals. But they would cost a little more and, though her resources were ample, she did not feel the benefits of insured professionals justified the extra expense.
Having “caregivers” in the building afforded her a sense of freedom and an illusion that these people were her “friends”.

It appears that Eleanor has rationally considered her situation and concluded that her way of doing things is preferable to the alternatives, despite allegations by others that she is putting herself at risk.

It may be that Eleanor understands that she is putting herself at risk. She may not care, however, because the benefits of this scenario, in her mind, outweigh the dangers.

The Role of Loneliness and/or Social Isolations

When an individual appears capable of rationally weighing various alternatives and yet chooses options that appear to put them at risk, there is some possibility that unspoken needs are met by the choice this person has made. They are competent, but they make poor decisions.

A police department social worker called us recently to discuss a situation in which one of their town’s residents was involved. The resident is in her 80’s and lives alone. Her trust officer at the bank became alarmed recently when the woman withdrew $50,000 from her account in the span of a few months. This is uncharacteristic behavior and prompted the bank to contact police for fear she was being exploited.

The police looked into it. Lucy candidly explained to them that she was, in fact, sending money to some gentlemen in Nigeria she had recently come to know by telephone. The idea was this: If she sent them money, there was a chance she would win a much larger sum of money in the Nigerian lottery. And these gentlemen were persistent. If she did not answer the phone for a day or two, they would call the police and request a wellness check on her. When the police appeared at the door, Lucy understood that it was a signal from her Nigerian friends indicating they needed to talk to her.

Lucy further explained to the police social worker that she knew this was probably a “scam” of some kind but it’s her money and she can spend it as she pleases.

Everything she said is true.

Also true are the following facts:

Lucy’s home is well tended and immaculate;
Lucy herself is well-groomed and her clothing clean;
There is fresh and nutritious food in Lucy’s refrigerator;
She drives and has no history of accidents;
There are no other financial irregularities and Lucy’s bills are paid.

It would be difficult to convince a physician or judge that Lucy is incompetent. She presents well and lucidly lays out her reasoning for pursuing this unfavorable course of action.

What Lucy may not be saying is that the “relationship” she has established with these strange men on the phone is somehow satisfying other needs. It may be that she is acutely lonesome and that the attention they pay her is flattering and a little exciting. It’s possible they are even talking to her romantically or suggesting the potential for a future love relationship.

News reports of otherwise functional older adults falling for “scams” such as this one are not at all exceptional. Perhaps the common denominator in these manifestations of poor judgment is loneliness and/or social isolation. It seems entirely possible that a competent individual who is desperately lonely may set aside their suspicions and customary caution to enjoy a costly but socially thrilling “relationship” with strangers on the phone or, in Eleanor’s case, a raft of “friends” who are allowed to come and go — and steal — in the night.

Poor Judgment and Dementia

It is important to note that poor judgment and difficulty making decisions are recognized as possible signs of mild cognitive impairment. Manifestations of poor judgment, particularly those that jeopardize an individual’s safety and financial welfare, warrant concern and observation. They are not, however, necessarily indicators of incompetence in and of themselves.

Mayo Clinic lists the following indicators as potential signs of mild cognitive impairment:

You forget things more often.
You forget important events such as appointments or social engagements.
You lose your train of thought or the thread of conversations, books or movies.
You feel increasingly overwhelmed by making decisions, planning steps to accomplish a task or interpreting instructions.
You start to have trouble finding your way around familiar environments.
You become more impulsive or show increasingly poor judgment.
Your family and friends notice any of these changes.

Poor judgment is part of a constellation of symptoms that, regarded collectively, may eventually result in a diagnosis of mild cognitive impairment or dementia. If such an impairment is diagnosed and documented by a physician, and the physician is willing to write a report indicating an individual is no longer capable of managing some or all of his/her affairs, a petition for guardianship might be filed to protect this individual from undue influence and furnish them with an alternate decision-maker.

Guardianship As a Last Resort

Because guardianship triggers the loss of individual rights in a variety of areas, it is not entered into lightly or as an initial solution to manifestations of poor judgment. Neither is it a means to halt behaviors family members dislike.

A daughter once called us to pursue a possible guardianship of her father. A series of questions elicited a story involving the father’s girlfriend, a woman the daughters did not like. The daughters were concerned, evidently, that their father might marry this woman, or leave her a financial bequest, and they thought becoming his guardian might enable them to limit or end this relationship. There was no evidence that the father was incompetent, and all aspects of his life were running smoothly, even by the daughter’s own confession.

Certainly, this is not suggestive of disability or the need for guardianship.

The definition of a disabled adult in the Illinois code is as follows:

“A person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” 755 ILCS 5/11a-2.

Professional assessment is recommended for those exhibiting poor judgment, especially when it is putting them (or others) at risk and/or is representative of a marked change in their customary behavior. If, as in the cases of Eleanor and Lucy, the impaired judgment is not accompanied by other indicators of potential incompetence, the introduction of professional support sources – care managers, companions, municipal/township services – can provide guidance, monitoring and assistance without the removal of rights. These professional resources may also prove effective in managing or reducing loneliness, and thereby discourage inappropriate and damaging relationships with exploiters.

Determination of incapacity can be a slippery task. In some cases, it is abundantly clear that an individual is incapable of managing their own affairs. In others, it is less clear, and there is only a little evidence that cognitive decline may be hampering decision-making ability. When in doubt, request an assessment by a licensed clinical professional, preferably in the client’s home where telltale signs of difficulty (spoiled food, unopened mail, squalor and other factors) may point to more impairment than was initially suspected. In instances where capacity is questionable, a physician evaluation and/or neuropsychiatric testing will be recommended.

Self-determination is the ideal. Protection of vulnerable individuals, however, is an equal imperative that compels us to look more deeply when changes in judgment appear.

Resource:

http://www.mayoclinic.com/health/mild-cognitive-impairment/DS00553

http://www.stanford.edu/group/psylawseminar/Competency.htm

http://www.gbfamilylaw.com/Articles/The-Mentally-Incompetent-Party.shtml

http://www.aplaceformom.com/blog/2013-02-18memory-loss-retirement-savings/

http://en.wikipedia.org/wiki/Mental_status_examination

http://www.mobility-equipment-training.com/impaired-judgement.html

http://www.competence-capacity.com/

http://www.gov.ns.ca/health/mhs/pubs/seniors/competency_ingeriatrics_101.pdf