December 6, 2022

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Associate Attorney General Vanita Gupta Delivers Remarks at the Elder Justice Decision-Making Capacity Symposium

12 min read

Remarks as Prepared for Delivery

Thank you, Andy, for that warm welcome and for all of your work as the Department of Justice’s National Elder Justice Coordinator. I also want to thank the Elder Justice Initiative, the Justice Department’s Office of Legal Education, the Civil Division’s Office of Training and our many federal partners, especially the Department of Health and Human Services, who helped to plan this remarkable symposium.

I want to thank our participants and panelists, and I am delighted to welcome all of you to the department’s first-ever Elder Justice Decision-Making Capacity Symposium.

The Department of Justice is committed to using all of its tools to ensure that older Americans receive the support and protections they deserve. Every year, millions of older Americans are abused, neglected and financially exploited, often by those who are entrusted to care for them. The department has aggressively pursued justice for elders in a wide variety of fields – from nursing homes that provide grossly substandard care, to guardians and others who abuse their positions of trust and to multinational fraud schemes that target older adults. The department has also formed strong collaborative relationships with state and local law enforcement and provides trainings and webinars on elder abuse and financial exploitation to hundreds of civil attorneys, prosecutors, judges, investigators and other elder justice professionals in multiple disciplines, to ensure that they can appropriately respond to the specific needs of older adults.

This symposium addresses a foundational part of our work to protect our nation’s older adults: ensuring that they have access to justice and that they are treated with dignity and fairness. Advocates, prosecutors, law enforcement officers, judges, clinicians and others have repeatedly reported that too often, older adults are being denied a full measure of justice, in part because of mistaken assumptions or inadequate assessments of their capacity to make decisions for themselves.

These assessments can have deep and lasting impacts on the lives of older adults. In the criminal context, these assessments may be critical in ensuring that justice is obtained for older adult victims and, through restitution in certain cases, that they are made financially whole again. For example, an older adult may be a critical witness to a crime that will not be prosecuted if she is deemed incompetent to testify. Perpetrators who target older adult victims may seek to manipulate them, and a victim’s decision-making capacity may affect their interactions with their abusers. Assessing the victim’s decision-making capacity can help law enforcement tailor investigations to identify those cases that may, initially, appear to be cases involving a consenting adult, when in fact the victim did not – or could not – consent.

In civil cases, assessments about the need for a guardianship or conservatorship may govern an older adult’s ability to make core life decisions – where she can live, what medical decisions she can make, how she can spend her hard-earned money and with whom she can develop friendships and find companionship and love.   

Those of us who work in the legal system need to have a deeper understanding of how to address the specific needs of older adults and how to appropriately assess an individual’s decision-making capacity in a given case. As we work to combat elder fraud and abuse, we must equip ourselves with the knowledge and tools to ensure that we protect their rights and pursue justice when they have been victimized.   

That is why I am truly excited that you all have joined us for this symposium. Over the next three days, we will be engaging in a robust conversation about how we can best serve and protect older adults in this country. Participants span the spectrum of experts – including professors, clinicians, researchers, judges, prosecutors, law enforcement officers, aging services and social services professionals, administrative officials and many others. Although you come from many different fields, we are all here because we share a deep commitment to supporting and protecting older adults.

Your diversity of experiences is critical: it is through the cross-sectional expertise that you all bring that we will be able to have a fuller understanding of how to safeguard the rights of older adults. We need clinicians to help legal professionals, judges and adult protective services officials understand what capacity assessments can and cannot tell us about an older person’s abilities, and we must ensure that the tools used to assess decision-making capacity are valid and reliable.

Clinicians and elder justice professionals also need to share common understandings about their respective roles in the legal system, and I hope we can learn how to enhance communication between and among clinicians and elder justice professionals.

Finally, this symposium will explore how misconceptions about aging and decision-making capacity impact our civil and criminal legal systems. We need to confront and dispel negative stereotypes about the cognitive and decision-making capabilities of older adults. Even when a person has been diagnosed with a cognitive disability, we must understand how to reliably assess their actual decision-making capacity and how that capacity impacts the outcomes of a specific case or prosecution.

This symposium is just the beginning of the work we must do to ensure that all of us – judges, prosecutors, advocates, academics, researchers, guardians, adult protective services, aging services, social services professionals, elder justice professionals, doctors and clinicians, law enforcement officers and government officials – have a greater understanding of how aging and decision-making capacity impacts older adults so that the civil and criminal legal systems honor the rights of older adults, provide them with the greatest autonomy possible and protect those who have been abused, neglected or subjected to financial exploitation.

Thank you for sharing your vision, expertise and leadership as we forge forward together in pursuit of justice for our country’s older adults.

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