Key legal issues that impact aging in the United States.
Capacity is a critical issue across the life span and is a fundamental element of both legal and clinical standards and practice. Capacity may involve many areas of functioning, including for example, physical, mental, cognitive, emotional, and behavioral. 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.
In all states, the law presumes that a person over the age of majority has capacity. The legal aspects of capacity have been extensively explored and described in the context of guardianship of minors, adults with disabilities, and older adults with diminished capacity. State guardianship laws vary in their legal standards for diminished capacity, but the majority of states require that a person has some type of disabling condition that is causing the person's inability to make decisions about and handle critical personal or financial affairs. See American Bar Association Commission on Aging and the Law: Capacity Definition & Initiation of Guardianship Proceedings (As of statutory revisions August 2020).
The concept of capacity also is relevant across the spectrum of legal issues and transactions. State statutory and case law have established standards of capacity for different types of legal transactions, including testamentary, contractual, conveyance of real or personal property, execution of durable power of attorney, and health care decision making. See Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers.
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. Several tools have been developed to assist judges, lawyers and court-based professionals in assessing the capacity of older persons. Judges, attorneys, and court staff also can help enhance capacity with a number of techniques and accommodations. See Establishment of Guardianships: Determination of Capacity, Elder Abuse Curriculum for State Judicial Educators, Module Two, and the resources listed below.
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Consent requires individuals to be able to understand the transaction or activity, make judgments about it, and decide if it is something they want to do. Whether a person has given consent is a significant factor in determining the legitimacy of a wide range of actions related to that person's life and activities. For adults of any age, consent is most commonly associated with health care decision making. Consent also is frequently an issue in determining whether a crime has been committed. Consent is an important issue in legal transactions, such as transfers of property through gifts, wills and trusts, control over a person's affairs (e.g., durable power of attorney and guardianship), and business transactions (e.g., contracts for services or to buy or sell property). See Elder Abuse Curriculum for State Judicial Educators, Module Two for additional information and resources about consent and its role in crimes against older persons.
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 (APS). APS statutes typically define capacity to consent as the ability to understand the facts related to their person or property and to make a rational decision based on those facts. In many states, a decision to refuse services does not suffice as a reason to find a person lacks capacity to consent. For example, in Tennessee, "Capacity to consent" means the mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts. A decision itself to refuse services cannot be the sole evidence for finding the person lacks capacity to consent; Tenn. Code Ann. ยง 71-6-102(4).
Capacity to consent also plays a critical role in determining whether crimes against property or the person have been committed. Examples of crimes against property include theft, fraud, and deceptive practices (e.g., contracts for services, contracts to buy or sell property, solicitations for contributions). One of the most problematic areas for determining capacity to consent is in intimate crimes against the person such as sexual assault and rape. The incidence of alleged sexual offenses is growing for elders living in both the community and in long term care facilities.
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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 in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law. Capacity and consent relate primarily to an individual's abilities to understand and process information in order to take action or to make decisions. Undue influence focuses more on the relationship between the individual and another person, coupled with that person's opportunity and power to manipulate the vulnerable person's thoughts and actions. An older person may be more vulnerable to undue influence because he or she has diminished capacity or the person has become isolated from trustworthy family and friends.
The legal standard for undue influence has been defined as influence that amounts to deception, force or coercion that destroys a person's free agency (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers). Undue influence arises most predominantly in probate, trust and estates, power of attorney and guardianship matters. 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. For example, in its definition of the crime of exploitation, the Nevada elder abuse statute specifies undue influence as a method for gaining control over a vulnerable person (Abuse, Neglect, Exploitation or Isolation of Older Persons and Vulnerable Persons, NRS 200.5091, et seq.) A 2012 Missouri law does make undue influence a crime by including it in the types of acts that, when committed against an elderly or disabled person, constitute the crime of financial exploitation.
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American Bar Association Commission on Aging and the Law: