Capacity is Critical

If you follow the news, and you’ve been following the most recent charges former President Trump now faces, you’ve likely heard that one of his unindicted co-conspirators is Rudy Giuliani. A former district attorney, mayor of New York City, and advisor to former President Trump, 79-year-old Giuliani is pretty widely speculated to eventually face trial for a number of alleged crimes. Furthermore, a lot of folks lament how far he’s fallen from his position in society some two decades ago.

As a geriatrician, I’m concerned about his behavior and how, currently, he doesn’t seem to function nearly at the level he did twenty years ago. Some say it was alcohol that has brought him this low. That may be, but I’m not here to diagnose or speculate on cause. However, given that his thought process and function seem noticeably diminished from his days as “America’s Mayor,” I would strongly advise anyone in his orbit that he be evaluated with neuropsychological testing.

A common screen for dementia is the Mini Mental Status Exam (MMSE), or the Montreal Cognitive Assessment (MOCA) exam. Both are a good start. They test for general awareness: Day, date, multi-step tasks, drawing designs, short-term memory, and so forth. The MOCA is a bit better in testing abstract reasoning. However, one can get a perfect score on these tests and still have lost their risk assessment and judgment — and be at severe risk for financial abuse and negligent self-care.

Neuropsychological testing is more intensive at around 4-5 hours, most effective if done by a geropsychologist, and can identify most people who are at risk. And by “at risk,” I mean folks who may have difficulty with complex and abstract decision-making like finances, living independently…or standing trial.

I’ve shared the stage with academic lawyers in discussing capacity. One said that while neuropsychological testing is better, people don’t often want to spend $2000+ on this testing. My argument was this: If we’re discussing taking away an elder’s independence and control of their assets (often six figures!) then we darn well better be sure we’re right. Similarly, we should not leave those who have lost judgement and reasoning to fend for themselves — when they can’t see swindlers or ensure they don’t lose their life savings. Additionally, early dementia can cause elders to sound irritable, argumentative and generally unpleasant to be around. I’ve seen marriages end, adult children estranged and the elder unable to take care of their estate. But — it can be addressed. All of it.

Once the neuropsychological assessment is done and the elder is found to lack capacity, then either the trustee takes over (another can of worms), the durable power of attorney kicks in, or an elder needs to be conserved to protect themselves and their assets — for the elder’s sake….not for the heirs of the will.

But — back to Rudy. Because his behavior has been odd and he’s not functioning at the level he once did, he should have more intensive testing done for his own protection. I’m not saying that he has dementia, but it is a risk at his age. To me, it would be a tragedy to have him face trial without his (potentially) reduced capacity taken into account.

My book Living in the Moment: Overcoming Challenges and Finding Moments of Joy in Alzheimer’s and Other Dementias has an extensive section on what to do when a loved one starts acting strange — and their doctor thinks they’re just getting old. My book discusses how to diagnose, what steps to take and what to do when an elder is easily angered, irrational, or paranoid.

There is help. Ativan and Xanax are not the answer. If you think you’d benefit from professional help, reach out to my team. Let us know what issues you’re having, and we can see if we’re a good fit. Chances are, we’ve helped people just like you.