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Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America
resent and resist any steps to limit their financial independence (Macolini, 1995). For example, in Massachusetts approximately one-fifth of the elder persons for whom a report of abuse was filed refused a resulting offer of state services (Dessin, 2000).25 It should be noted that such reports are typically limited to relatively egregious incidents. Such data may suggest that intervention to address the financial abuse of the elderly should be limited to when there is fraud, duress, or undue influence or a clear lack of capacity to make an informed decision (Dessin, 2000).26 At a minimum, any model to prevent or remedy financial abuse of the elderly needs to take into account the fact that elderly victims are adults who in general previously had complete autonomy over their financial transactions (Dessin, 2000).27 In particular, any such model needs to address whether and how to proceed when the elder person denies a need for assistance or resents or resists intervention (Capezuti et al., 1997).
Second, determining when an elderly person lacks decision-making capacity can be a difficult matter. Even if an elderly person intermittently experiences diminished capacity, he or she may in general retain decision-making capacity. Decision-making capacity among children is quite clearly, even if somewhat arbitrarily, demarked by the age of majority.28 For elder adults, decision-making capacity tends not to be an all-or-nothing concept. An individual with a cognitive impairment may have the capacity to make some decisions but lack capacity to make others. Also, this capacity may vary over time, with individuals having good days and bad days (Dessin,
Macolini (1995) reported that 6 states and the District of Columbia require the consent of the elder person before commencing an investigation of a report of elder abuse and that 29 states and the District of Columbia specifically require the consent of the elder person before services can be provided. See also Shiferaw et al. (1994); in cases in which allegations of elder abuse were substantiated on investigation by APS staff and clients were offered protective services, 13 percent of the victims refused such services; Gilbert (1986); perhaps 40 percent of the older adults who health care professionals believed were abused refused intervention and services.
Such refusals are honored in Massachusetts unless there appears to be coercion or a lack of capacity to make an informed consent (Dessin, 2000). Some may argue (although not without vigorous opposition) that physical abuse or neglect poses a more immediate threat to the well-being of the elderly and thus necessitates a more proactive model akin to that used for child abuse.
For example, even if the cognitive capacity of elder persons has become limited, their personal involvement in these transactions may provide a valuable source of information that should not be ignored.
There are certain circumstances defined by state law when a child who has not reached the age of majority is considered emancipated and is therefore considered to have capacity to make decisions on his or her own behalf. In addition, a few states have recognized a mature minor doctrine.