Emerging Practice Opportunities: Combining geropsychology, family psychology, and family law

Paula Hartman-Stein, Ph.D.

Center for Healthy Aging, Kent, Ohio

In B. F. Okun & N. S. Grossman (Co-chairs), New and emerging roles at the intersection of Family Psychology and Law. Symposium conducted at the 110th American Psychological Association Convention, Chicago, Illinois

Introduction:

Psychologists who have expertise with older adults have increasing opportunities to expand their work beyond their office or the long-term care setting to the challenge of the courtroom. With the aging of people in industrialized societies into the 7th decade and well beyond, the dementing of society is also a reality that has many repercussions not seen in prior eras of human society (Marson, 2002). The current estimates are that 4 million individuals in the United States have Alzheimerís disease, with some experts estimating vastly greater numbers of people who do not meet the criteria for dementia but who show signs of mild cognitive impairment and convert to degenerative dementia at the rate of 10 to 15% per year (Morris et al., 2001; Petersen, 2002).

Such societal phenomena produce challenges and opportunities for healthcare professionals. One emerging role for psychologists is that of expert witness in cases involving questioning the mental competency of older adults for specific functions such as the ability to make healthcare decisions, manage financial affairs, drive, make valid wills, sign contracts including ante-nuptial agreements, and live independently.

Every state has laws that provide guardians or surrogate decision-makers when an individual appears incapable of making important decisions or behaves in a way that negatively impacts his own safety or acts in a way that can be potentially harmful to others. People are allowed to make unusual or unwise choices unless their decision-making capacities appear to be impaired (Grisso, 1994). A third party must have an interest in the decision of the older adult in order for capacity to be called into question (Hartman-Stein, 1996).

At this time there is no prescribed set of assessment techniques that can be applied for all questions of mental capacity. A basic principle of psychological evaluation is that the clinician selects methods based on the specific question to be answered. Marson (2002) posits that capacity assessments of older adults acceptable in the courtroom will increasingly require scientifically validated measures for making legal competency judgments. The use of capacity-specific measures for skills such as financial management or medical decision-making ability are likely to become the norm, rather than relying on global measures of mental status.

In addition to neuropsychological test data and measures of performance in specific functional domains, behavioral descriptions and estimations of performance from collateral sources are a part of a thorough geriatric assessment, according to recent guidelines (APA, 1998). Informant ratings of normal versus impaired memory and thinking have been found to be useful and powerful predictors of an older adultsí current cognitive status (Carr, Gray, Baty, & Morris, 2000). Psychologists conducting competency evaluations of older adults need to conduct structured interviews with family members, be aware of the role of family dynamics in the particular case, and communicate clearly and with sensitivity to family members about recommendations regarding the adult whose competency is in question. Therefore, competency evaluations of older adults require the clinician to be knowledgeable in aspects of geropsychology, family psychology, and family law.

To illustrate the intersection of these fields of human behavior this presentation will be in three parts. First, a brief overview will be presented of principles of family dynamics involving adult children that often surface in capacity evaluations, followed by description of a new tool for collecting collateral information of an older adult at risk for dementia, finally followed by case studies of challenging forensic cases of older adults.

Family roles and rules

When making recommendations to the court regarding an impaired older adult the clinician must take into account a family memberís motivation and emotional capability to care for the impaired older adult parent. Situations arise when the judge or magistrate welcomes recommendations from the psychologist as to which family member is best able to fill a guardianship role when there is contentiousness among family members.

Qualls (1988) describes some of the family "rules" or beliefs shared by adult children that limit or constrain their actions toward demented parents. The adult child may be well aware of the changes in memory and executive functioning but will remain passive despite obvious poor judgment on the part of the older adult in areas such as driving or financial management. The children may fear they are not acting in a respectful manner if they start "taking over" as is needed if they are appointed guardian of have durable power of attorney. However, in cases when children who run a family business, for example, start to realize their own financial status can be affected should their father have a driving accident when delivering goods in the truck used in the business, then the old family rules of politeness and subservience to the father quickly fade.

The family membersí beliefs about physical impairment and dementia need to be explored when making recommendations for the care of the older adult. For example, some family members believe that unless the impaired older adult does everything for herself, all functioning will be lost, another possible reason for shunning a more active role with the elderly parent.

Other family issues in forensic cases include disagreement among siblings that anything is really wrong with Mom or Dad. Reasons may range from denial mechanisms that surface because admitting a problem exists may bring more responsibility that can be especially difficult for an already burdened "sandwich generation" Baby Boomer. Long held beliefs that a parent is invincible can also reinforce the denial mechanism.

Themes from childhood often emerge when planning for the care of an impaired parent, with sibling rivalry abounding. Adult children who have depended upon Mom and Dad for income even well into their own adulthood can easily put "blinders" on when it comes to assignment of another sibling into the role of financial manager.

Blazer (1990) describes some of the roles often assumed by family members when caring for an impaired older adult, such as facilitator (the individual who does not want to see the older adult make reasonable changes to compensate for his/her impairment); the victim (feels threatened by the emotional problems or impairment of the elder); the manager (the calm, organized family member who can be helpful in arranging tangible supports but has difficulty providing emotional support to the parent or to other family members); the consummate caregiver (i.e., a person who shuns support from others or refuses needed respite); and the escapee (this individual may withdraw from the family because he/she resists being drawn back into a previously stressful and dysfunctional family).

The professional can evaluate the quantity and quality of the interaction within the family before making a recommendation to the court. Blazer (1990) suggests that questions be asked of the older adult or other informants such as how often does the son, daughter, brother, etc. visit, or how often is their phone contact. I have found that in some cases mildly and even moderately impaired adults can describe the quality of their relationships with their children reasonably accurately. For example, in one case the moderately impaired adult described with apparent accuracy the shiftlessness and irresponsibility of his son and the emotionally distant daughter who hated her brother, and was fearful of standing up to her father.

The professional can play a valuable role for the distressed family that is facing a role change with their parent by "being the heavy," for example, by insisting that the parent stop driving by writing to the Bureau of Motor Vehicles or recommending that it is best for all parties that an independent guardian be appointed by the court rather than identifying one family member to take over when there is contention either with the older adult to the adult child or among the siblings.

The Behavioral Competence Inventory

A behavioral assessment tool that was created initially to help gather data for guardianship cases is the Behavioral Competency Inventory (BCI), a 106 item survey instrument. It is designed to collect collateral information about the remaining adaptive behavior of the older adult who has suspected cognitive impairment and includes items regarding his/her ability to compensate for incapacities by willingness to accept community services and resources, as well as identify behavioral excesses and deficits (Hartman-Stein & Reuter, 1996). The BCI purports to measure 7 separate domains of functional behaviors including self-care, instrumental activities of daily living, memory/orientation, social interaction, compensation for incapacities, behavioral excesses, and behavioral deficits. A previous study of 149 out-patients attests to the reliability of the BCI scales, demonstrating that they showed adequate internal consistencies and represented seven overlapping but distinct constructs (Jarjoura, Hartman-Stein, Speight, and Reuter, 1999). In a recent study of 152 older adults the BCI deomonstrated concurrent validity with the Clinical Dementia Rating Scale and the Geriatric Depression Scale (Hartman-Stein, Reuter, and Schuster, 2002).

Although we have not studied this formally, I have found it clinically useful to examine the caregiversí report of the elderís functioning in forensic cases to see whether there is significant discrepancy between their perception of their parentsí functioning compared to performance-based measures of functioning.

Case study

Mrs. Cousins was a 78 year old divorced woman whose daughter petitioned the court for guardianship of person and finance because her mother had refused to pay her bills in the assisted living facility where she resided, refused any assistance with bathing and laundry management as well as stopped taking her medication or following any dietary recommendations. She had hired her own attorney for the purpose of revoking her daughterís durable power of attorney. Mrs. Cousins had considerable financial assets according to her daughter. Her attorney had questioned the need for guardianship, stating that she was fully capable of decision-making and accusing his clientís daughter that she wanted control of her mothersí assets for her own financial gain.

Mrs. Cousins was raised with adoptive parents after her biological mother had committed suicide after killing her husband. According to her daughter, Mrs. Cousins had refused throughout her adult life to acknowledge any of this tragic past. Mrs. Cousins had a history of exhibiting angry rages displaying much emotional lability. She had refused all efforts by her husband and daughter for her to have psychiatric treatment.

The patientís daughter, Mary, completed the BCI, reporting a moderate degree of impairment in all self-care skills and instrumental activities of daily living. She acknowledged that her mother dresses herself independently but needs help choosing appropriate clothing. She accurately described her motherís memory and executive functioning deficits. She described her mother as paranoid toward her over the last three years, questioning her motives and accusing her of siding with the patientís ex-husband, the father of Marie.

Prior to moving her mother to the assisted living facility, Mary had videotaped her motherís home that was strewn with garbage and had no working toilet. This graphic illustration of Mrs. Cousinsí inability to maintain her living environment was excellent corroboration of the deficits that were apparent from cognitive testing including impairment on the Money Management and Health and Safety sub-scales of the Independent Living Scale (Loeb, 1996). Her pattern of deficits was consistent with a dementia process, most likely dementia of the Alzheimer type, late onset. She scored in the moderate stage of dementia using Clinical Dementia Rating Scale criteria. In my opinion, Mrs. Cousins lacked the capacity for reasonable decision making in the areas of personal care and financial management. Her refusal of accepting appropriate help from others made her financially vulnerable, even though she was living in a safe environment.

The patientís daughterís account of her motherís deficits proved to be accurate. She was willing to be her motherís guardian, a system that has little room for financial gain on her own part. She was clearly frustrated not only with her motherís behavior but also with the attorney who challenged the necessity of the guardianship. She was an only child and appeared to be motivated with a sense of duty above all else. She was visibly relieved and grateful that the examiner reinforced her idea that her mother was indeed impaired and in need of legal protection.

As the expert examiner in this case, I testified in court. Guardianship was granted to the daughter eventually. About 18 months later I saw Mary in a shopping mall, and she made a point of thanking me for all I had done for her and her mother. Her mother was still living, but no longer recognized her daughter or any other family.