Undue Influence? Abuse of Trust? Elder Abuse? Increasingly, caregivers are taking a central role in the lives of parents and spouses when there aren’t enough hands to go around. See also Dr. Raffle’s Undue Influence in the Making of Bequests companion article.
What are the indicators which may point to a caregiver raiding a patient’s assets? As a psychiatric consultant to Hospice by the Bay, I have been asked this question. This involves assessing elder abuse, Alzheimer’s, other dementias, “senility,” mental confusion, drug effects, and indicators of undue influence and theft. Exploitation can occur both civilly and criminally.
The nature of the hospice population is that medical care is being provided to reduce pain and suffering during the person’s last 6 months of life. Often patients who suffer from debilitating conditions, such as dementia, or metastatic cancer, are also receiving high doses of narcotics which make them susceptible to fraud.
In a recent hospice case, I was asked to provide guidance about a caregiver who did not have a Power of Attorney, but who nevertheless was taking her patient to the bank so the patient could withdraw large sums of money from a savings account which was not accounted for afterwards. In this instance, I recommended the hospice Social Worker to notify the County Conservator, who then took the proper legal steps to protect the patient’s assets.
A patient may be vulnerable to undue influence, theft or fraud for mental or other medical reasons, but that does not mean any of these occurred. As a forensic psychiatrist, I have assessed individuals for County Conservators or for lawyers on either side of this controversy.
In another, more complicated matter, a conflict arose between the children of a man’s first marriage, and his second wife of 30 years who was his primary caregiver but who the children thought was spending too much money on their father’s care. Ultimately, the allegations by the children were determined to be unfounded.
After the father died, the children alleged their step-mother squandered their father’s assets for her own benefit and they sought to set aside his bequest to her. They also attempted to persuade the District Attorney to file criminal charges of fraud against the step-mother. The District Attorney refused to file charges because, in general, the step-mother was maintaining their lifestyle as it existed before her husband became ill. In civil court, a judge held the husband’s Will was legal, no undue influence had been exerted and the Will stood as written. I contributed to the assessment of criminal allegations, and to the civil case. In order to assess the wife’s intent, I examined their relationship over the 30 intervening years, how the money had been spent, and whether she reasonably believed that monies being spent were to benefit her and her husband in a manner similar to their lifestyle prior to his illness. I also examined the matter of undue influence, particularly the issue of whether or not the step-mother was denying her step-children access to their father and otherwise isolating him from other family members. It was clear from a variety of sources isolation was not occurring. Evidence existed that that the wife was not funneling money to her own children from her husband’s estate or otherwise making unreasonable expenditures. In order to reach my opinion, I reviewed the husband’s medical records from the time he became ill until his death, read all available depositions and interviewed the wife. I offered to interview the husband’s children, but they refused.
One of the issues I examined with the wife was whether she had periods of confusion which may have predisposed her to injudicious expenditures. An evaluation of her mental state in general was also an element of my examination. Another issue was how cultural attitudes determined medical expenses insofar as the family was Asian and had a long tradition of alternative medicine remedies, which were costly. As a forensic psychiatrist, I must consider the influence a person’s culture has on their decision-making, especially when caring for a sickly loved relative.
The reason a forensic psychiatrist is consulted in a matter such as this, is because he understands the legal tests which will be applied to the legal controversy. A good clinical examination is often not sufficient to answer the legal questions posed by the Court. Omitting inquiry into those areas exposes the non-forensic psychiatrist to errors of omission which will undermine his credibility.
In order for the forensic psychiatrist to conduct a sufficient psychiatric examination, he must be able to address specific issues outlined in both statutory law and case law as it applies to theft, fraud, and undue influence and mental state, in this particular case, both of the alleged victim and the accused/defendant.