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Labelled Incompetent, Elders Fight For Control

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This article was published more than 10 years ago.

Shortly after she suffered a stroke in 2001, Flora L’Heureux was shown
a single document that turned her life upside down.

The paper, called a Form 1, stated that she had “poor insight and judgment”
associated with “frontal lobe dementia” and recommended she be assigned a
legal guardian. It was signed by a doctor.

That was the start of a medical and legal process that would grant a public
guardian control of where the Edmonton resident lived, how she managed her
assets and who she chose as a doctor.

“I nearly choked on my breakfast,” recalled the 76-year-old former businesswoman
from her room in a long-term care facility of the moment she saw the doctor’s form.

“How could they come to that conclusion? I’d never acted out or anything. With
that little paper, my entire independence was gone.”

On Monday, Ms. L’Heureux appeared in an Edmonton court to challenge her legal
status as a “dependent adult,”
someone whose cognition is impaired to such a
degree that they can’t manage their own lives.

A judge adjourned the case until Sept. 17.

The case highlights one of the more troubling tasks both doctors and lawyers
face when dealing with cognitive decline among the elderly.

In Alberta alone, 10,000 people like Ms. L’Heureux have had responsibility for
their financial and personal affairs handed off to a public guardian.

The legal and medical path from full-functioning adult to dependent elder is
wrought with imprecise science and legal proceedings open to nefarious intent –
flaws that some seniors’ groups insist warrant an overhaul of the entire
system by which seniors are ruled incompetent.

“We are dealing with more and more people like Flora who’ve had all
responsibility robbed from them,” said Ruth Maria Adria,
head of the
Elder Advocates of Alberta Society, which is championing Ms. Adria’s cause.

“It’s just far too easy to make someone a dependent adult.”

Ms. L’Heureux attends college classes, buys groceries, makes her own coffee
and has scored well on mental capacity tests in the past.

But taking stock of a person’s ability to care for themselves is not a
perfect science, according to doctors. Even as physicians adopt new
cognitive tests, the process can be very subjective.

“There are grey zones,” says David Hogan, chair of geriatric medicine at
the University of Calgary. “Some doctors look at a cluster of facts and
say the patient has capacity; someone else might look at those facts and
say the person doesn’t have capacity.”

Some seniors decide to get their heads checked of their own volition;
others are pushed into it by relatives, doctors or judges.

Doctors administer a series of tests when evaluating a person’s mental
capacity. The best-known is called the Mini-Mental. Patients must complete
a series of timed tasks ranging in difficulty from routine (What country
are we in?) to complex (Write any complete sentence on a piece of paper
in 30 seconds).

The tasks can seem mundane, but the time limits can induce stress, and a mind
under stress is more apt to reveal signs of dementia.

Some doctors also conduct a Montreal Cognitive Assessment, or MoCA, designed
by a researcher at McGill University to detect mild impairment of the frontal
lobe. The lobe controls social conduct and insight – qualities that often begin
to erode before memory, damaging the judgment of a person who might seem fine.

Kenneth Rockwood, a geriatric specialist with Dalhousie University in Halifax,
once had a patient who passed most written tests – “He could spell the prime
minister’s name backwards, no problem,” Dr. Rockwood remembers – and yet, when
the patient was visiting a resort and spotted some scantily clad women, he
judged it okay to take his clothes off.

“By his thinking, he couldn’t see that there was anything wrong with that,”
Dr. Rockwood said.

After the written tests, doctors will sit with the patient for a face-to-face
interview, looking for signs that the patient has lost decision-making capacity.

One red flag is if a patient constantly defers to a spouse for answers.
“We call it the head-turning sign,” Dr. Rockwood says. “You ask them a question
about the past and they will smile weakly and then turn to a spouse.”

Even after the battery of tests, which can take up to three hours, reaching
conclusions about a patient’s mental competency can be difficult. Dr. Lockwood
often tells patients to revisit him in a number of months or refers them to
another doctor for a second opinion.

“It’s a tricky task,” Dr. Hogan said of assessing a senior’s mental capacity,
“and something no doctor does with a glad heart. It’s a terrible thing to
take some person’s rights as an adult away.”

Part of the problem with determining a person’s mental capacity is that the
brain is not an all-or-nothing organ, elder advocates say. Its capabilities
depend on the task. A person might be fully capable of managing his financial
affairs but not able to keep track of his medication regimen.

“Just because you have mild dementia doesn’t always mean you can’t look after
your own life,”
says Judith Wahl, a lawyer and executive director of the
Advocacy Centre for the Elderly in Toronto.

For a person to be designated a dependent, the legal system has to weigh in
as well. In Alberta, a judge looks at a Form 1 along with an assessment from
a primary caregiver.

But the legal process, just like the medical one, is imperfect.

“People do get trapped,” Ms. Wahl says.

In some cases, an elder’s relatives collude against them, drafting a dependency
application with a cooked caregiver’s report.

“Sometimes there are nefarious reasons for doing this,” says Karen Platten,
a lawyer with Alberta law firm McLennan Ross who specializes in wills, estates
and other aspects of elder law.

“It can be a way of gaining control over a relative and their assets.”

For Ms. L’Heureux, all semblance of independence has vanished.

“I want to be free,” she said.

“I want to come and go as I please. I want to visit a doctor of my choice.
I want out of this room. It’s like a prison without bars.”