Identification of Elder Abuse and Neglect: Capacity, Consent, and Undue Influence

Judges, court staff, attorneys and others who work with elderly persons should be familiar with three important concepts relevant to identifying and responding to elder abuse:  capacity, consent, and undue influence.  Elder persons can be more vulnerable to abuse and exploitation if they lack capacity to make every day decisions, to give meaningful consent based on their ability to understand the meaning of transactions, or are subject to the undue influence of trusted people in their lives.  Assessing whether a person has capacity, gave consent or was under undue influence can be critical to determining whether a person is victim of elder abuse.

Capacity is a general term used to describe the cluster of mental skills, such as memory and logic, as well as behavioral and physical functioning, that people use in their everyday lives.  It is not a fixed or static condition.  People can have capacity for different activities and tasks, and capacity can vary across time, situations and location.  Determining capacity in older adults can be very difficult and often requires gathering information from many sources, including family members, medical care professionals, mental health care professionals, adult protective service workers, and other involved parties. 

Consent requires individuals to be able to understand the transaction or activity, make judgments about it, and decide if it is something they choose.  A critical element of consent is whether the person has the capacity to consent.  The capacity of older persons to consent is historically most commonly applicable in the provision of adult protective services.

Undue Influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision making or assets.  Undue influence typically is not itself a crime, but it can be a means for committing a crime, including exploitation, fraud, domestic abuse, and sexual assault.

Additional Online Resources

American Bar Association Commission of Aging: Elder Abuse Laws
Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
Center of Excellence in Elder abuse and Neglect, University of California, Irvine
Judicial Determination of Capacity of Older Adults in Guardianship Proceedings
National Adult Protective Services Association
National Center on Elder Abuse
National Clearinghouse on Abuse in Later Life
National Committee on Prevention of Elder Abuse
Identifying and Responding to Elder Abuse, Neglect, and Exploitation: A Benchcard for Judges
Aging: Key Legal Issues: Capacity
Aging: Key Legal Issues: Consent
Aging: Key Legal Issues: Undue Influence