Combatting Elder Abuse Through the Legal Process
Howard B. Eisenberg, JD
ABSTRACT. The experiences of attorneys and law students who provide legal services to a predominantly elderly population through the legal clinic of a rural law school are described in this article. The steps taken to identify abuse cases at intake are elucidated along with the action taken by attorneys to end abuse and remedy past abuse. Emphasis is placed on a close working relationship with social service providers who can ensure that needed services are provided the victims of abuse, in addition to moral support and encouragement while legal procedures are pursued. The formal and informal legal procedures that can be used to combat elder abuse are also outlined. A need for public education and advocacy to alert older people and service providers to both the problem and its potential solutions is stressed.
For ten years the Legal Clinic in the School of Law at Southern Illinois University has provided broad-based civil legal services to persons more than 60 years of age who live in the thirteen southernmost counties of the state. This 4,600 square-mile region has a large percent of elderly people and a low per capita income and is entirely rural and sparsely populated. The area is economically depressed, and its only industry is the mining of high sulphur coal. Many younger people have left southern Illinois, seeking employment in the northern part of the state, in St. Louis, or in the South. Often, this has left the aging population isolated from families and without natural support systems. Other elders find themselves saddled with the responsibility for the continuing support of an adult child who has been unable to find work and remains in the same community with the parent, often in the same home. Overall, 60% to 65% of the elderly population is female.
The program offers intake-services at 22 locations throughout the region. These intake sites are primarily Title III nutrition centers. Some areas in southern Illinois historically have been segregated, and even today some black people do not feel comfortable obtaining services at the nutrition sites. In areas where we noticed a disparity between the number of black older persons in the population and those availing themselves of our services at the nutrition centers, alternative locations have been arranged to make the services available to all segments of the community. In each location, private interview space is provided and specific procedures are used to protect the confidential nature of the attorney-client relationship. The program is staffed by four full-time attorneys, one paralegal, three secretaries, and between 10 and 25 third-year law students. Under Illinois Supreme Court rules, third-year law students are allowed to provide limited legal assistance under the supervision of a practicing attorney. The program operates 12 months a year and in 1989 handled more than 1,700 cases.
INITIAL INTRODUCTION TO ELDER ABUSE
When the clinic first began to provide legal assistance to older persons, the majority of the work was drafting simple wills for people who came to the intake location. In 1982-83, wills represented 70% of the clinic’s caseload. In 1983, however, an internal decision was made to devote increased resources to the representation of older persons. An aggressive program of public education and outreach was begun. The clinic began consistently interacting with other service providers designated in the Older Americans Act: the Agency on Aging, nursing homes, home health care providers, the private bar, and others having contact with older persons. While the initial result of these contacts was an increase in work pertaining to wills, the nature of the caseload gradually began to change. Wills became a less important part of the overall caseload, as cases of greater substantive content were increasingly brought to the attention of the clinic attorneys and students. These new cases included adult guardianships, federal black lung cases, a significant increase in divorce and post-divorce work, and consumer representation.
Several years went by before we realized that we were actually becoming substantially involved in combating elder abuse. Cases were referred to the clinic from a variety of sources and with a variety of articulated problems, but they had many common characteristics. The typical client was more than 70 years of age, frail, dependent, isolated, and, in more than three-fourths of the cases, female. Often, the client previously had no responsibility for handling money or making family decisions. Now, because of the death or disability of a spouse, such decisions had devolved to the surviving or less disabled partner. A significant number of clients had some type of physical disability. The Legal Clinic’s involvement in elder abuse was unquestionably expanded as a result of the Elder Abuse Demonstration Project that occurred in Illinois between March 1985 and July 1987. In this project, various demonstration sites in Illinois were selected for monitoring and for subsequent intervention processes to be used in cases of elder abuse; each site used different reporting models. Four counties in the Legal Clinic’s service area were selected to test a model for mandatory reporting of elder abuse. Many cases were referred to our program during this two-year project. Interestingly, despite the termination of the project, the number of abuse cases referred to the clinic after July 1987 did not decrease. The results of the demonstration project led to the passage of the Illinois Elder Abuse and Neglect Act in 1988.
Identifying Financial Abuse Cases at Intake
We have identified several distinct types of financial abuse or exploitation. The first is the outright theft of property from the older person by entering that person’s home or safety deposit box and removing property or money. This also includes the failure to return change to the elderly person when the caregiver cashes checks for groceries or other needs. The second is the coerced or involuntary transfer of property, including bank accounts and real estate, under threat of ill treatment or promise of better treatment. The third is the conversion of property by improper use of joint tenancies, powers of attorney, or joint signatories on bank accounts. The fourth is the conversion of public benefits or entitlement checks by either direct seizure of the check or abuse by a representative payee. In addition, we have found children charging their parents for “services.” This includes requiring parents to pay for the gas needed to drive them to the grocery store or even for the mileage between the parents’ home and the child’s home. In several other cases the child was actually charging the parent an hourly fee for the time spent in assisting them. Such instances were more common in cases of non-family caregivers. In all such cases, however, an accounting – a report on the ways in which the money was spent – generally was never made, and the amounts of the mileage and time charges usually were far greater than any reasonable amount.
When the case was referred to the clinic from an agency within the aging network, the legal problem generally identified was the need for a guardian. Sometimes help with a divorce was requested, and only rarely was assistance requested for a matter regarding abuse. In some cases, the adult child of an older person brought his or her parent to see us with a request that we execute durable powers of attorney, giving the child broad powers over the parent’s property. Each case presented the situation of an older person who was said to be no longer safe living at home alone or who had problems taking care of property and money. Often the referral for legal assistance followed the death, illness, or mental deterioration of a spouse.
In a high percentage of these cases there was a family member, caregiver, or “friend” on whom the elderly person had become dependent. Not infrequently that person brought the older person to see the attorney. Even cursory investigation revealed that the family member or “friend” had gained access, or desired to gain access to, if not control of, the older person’s assets. In such situations serious questions were posed regarding the use of the funds by the caregiver. Often it was clear that the older person’s money was being taken by the caregiver due to the inability of the elder to combat the exploitation, whether or not the person was mentally competent or disabled. In most cases it appeared to an objective outsider that there was no immediate need to divest the older person of the control of their money, real estate, or other property and that such action might have extremely negative consequences. In a significant number of cases the caregiver or child simply removed money from the bank for his or her own use. In a few cases, the caregiver reconveyed the real estate and forced the elder out of the elderly person’s own home. The most serious problem in the case of real estate transfer, however, was that once transferred the elder’s property was attached by the caregiver’s creditors or was otherwise encumbered. Such unanticipated results were neither beneficial to the elder nor the caregiver.
The problem was particularly vexing when it was the abuser who was requesting our assistance to impose a guardianship on his or her mother, father, or neighbor. In other cases our assistance was sought in preparing powers of attorney, real estate deeds, or other legal documentation that would empower the abuser to gain control of the older person’s assets. It immediately became clear that our obligation was to the older person and that aggressive lawyering was required to protect such persons from financial abuse.
Counseling the Competent Older Client in Advance of Financial Exploitation
The attorney has several distinct responsibilities to an older client who is potentially the victim of financial exploitation. The lawyer must: (a) explain to the client the consequences of any action contemplated by the child or caregiver; (b) explain the available alternatives to the client, including the right of the client to autonomy and self-decision making; (c) assure that any action is undertaken only after full disclosure to and understanding by the client; (d) control any immediate damage to the client by taking short-term steps to protect the client’s rights; and (e) take appropriate action to remedy past exploitation or abuse.
When it was apparent that the client had sufficient wherewithal to interact in an attorney-client relationship, our first efforts were in counseling – providing the client complete information on the consequences of the action proposed by the family member or caregiver. We gave the client “permission” to make personal and property decisions that might be inconsistent with the wishes of family or “friends.” It was necessary to ask the family member or care- giver to leave the interview room so we could have a confidential meeting with the client. In such cases it was essential to make clear that our client was the elder, not the family member or caregiver. Sometimes it was necessary to simply tell the caregiver or family member that the elder’s interests were adverse to the caregiver’s or family’s interests and that the caregiver was well-advised to secure independent representation. Additionally, our role was to advocate for the older person, not act as a mediator, unless the client specifically requested such mediation. Nevertheless, a competent client is also entitled to make a decision that appeared to the attorney to be inappropriate, that was contrary to the individual’s best interest, or simply poor judgment. The primary obligation of an attorney is to inform an elder of the available options and allow that individual to make the decision on the way to proceed.
Once the older person understood our role there often was a profound change in the client’s demeanor. The passive older person would become animated, assertive, and frequently infuriated regarding the efforts made by his or her children or others to gain control of the person’s assets. When it became obvious that there was a problem of overreaching by the caregiver or family member, fast action and advice became of paramount importance.
We quickly learned that if the potential abuser realized that we were assisting the older person in being self-sufficient and in resisting the person’s efforts to gain control of the assets, we would never see the client after the initial interview. Thereafter, our efforts to make telephone contact with the elder were impossible. Thus, action had to be taken at the initial intake interview to provide the client with basic information and protection. At this point, a retainer agreement would be executed both to protect us from charges of battery and to provide us future entree to the client. In such cases informing the client that he or she has the right to autonomy, privacy, and control of assets was most important. The client also had to understand that he or she had the availability of independent legal representation without cost. It is very important to assure the client that it is “all right” not to sign the legal document, not to add the child’s name to the bank account, and not to transfer assets.
Assisting the client in placing the assets outside the reach of third parties is also a frequent type of assistance. This might involve such simple action as changing the signatories on bank accounts, consolidation of accounts in only the client’s name, removing property to a safe location, or revoking an already executed power of attorney. It was also important to explain the consequences of such seemingly simple procedures as adding a name to a bank account or deed or explaining the extraordinary power given an agent under a plenary power of attorney.
We quickly developed a uniform presumption that for older persons of lower and moderate income, it was seldom a good idea to transfer substantial assets to a third party for any purpose other than an outright gift. In almost every other situation a preferable legal procedure could be suggested that would meet the client’s needs without jeopardizing the client’s estate or well-being. Payable-on-death accounts or living trusts were better than outright transfers of assets to “avoid probate”; preservation of life estates in real estate was better than outright transfer; and often, it was best to prepare a simple testamentary will and require the heirs to await their parent’s death to obtain the assets or property.
Frequently the most difficult task for the client was to “just say no” to their child or caregiver. Often referral to a social service agency for follow-up support was part of the legal counseling. Since we lacked the ability to visit our clients’ homes on a routine or continuing basis, sometimes the availability of housekeepers or those who could do chores, case workers, or in-home meals would assist the client in remaining autonomous. Attorneys frequently overlook the need to take a holistic approach to assist the client in retaining autonomy. Our experience showed that often the other Title III services had more to do with protecting the legal rights of our clients than did the provision of outright legal assistance because such providers have much more frequent contact with the client and thus, can provide on-going emotional support. This frequent interaction with social service providers was a key to securing the legal rights of our clients.
It also became necessary to counsel the family member who was contemplating the transfer of assets. In some cases the family member or caregiver actually believed that the proposed transfer of assets was in the older person’s best interests. Sometimes this occurred because the elder was perceived as being incapable of managing funds, other times this was a “probate saving” device, while still other times this was in response to the fear of either spousal impoverishment or loss of inheritance should long-term care be required. There is a dearth of information about the legal consequences of certain types of property transfers, and rumors abound in the community about the policies of public aid agencies regarding the “taking” of assets in the event Medicaid is responsible for paying the long-term care. Sometimes the family member simply needed to be informed of the consequences of the proposed action and the different legal courses available.
In many cases, however, the adult child, relative, caregiver, or “friend” did indeed desire to gain access to some of the older person’s property, either immediately or in the event the older person required long-term care. Often it was frankly admitted that the child planned to drain the parent’s bank accounts or claim a previous transfer of assets should the mother or father need long-term care.
The adult child believed that the parent would then be eligible for Medicaid. It was necessary to inform the individual that under most circumstances the contemplated action was criminal and could not properly be undertaken.
Legal Assistance to the Incompetent Victims of Financial Abuse
In some cases referred to the Legal Clinic, there was a serious question regarding the clients’ competence. We view “competence” as a factual question to be determined by the attorney on a case-by-case basis. The opinion of the client’s physician, while given great weight, does not determine whether or not the client is competent. A client may be competent for some purposes, but not competent for others. Generally, we must determine whether the client can (1) understand the information and alternatives we have presented and (2) make a voluntary choice that is well understood, given the alternatives. Thus, a client may be competent to draft a simple will disposing of his or her property to the surviving spouse and children, but may not be competent to make decisions regarding the handling of funds. Many cases have been referred to our Legal Clinic involving an elderly person of questionable mental competence in the community who is being “cared for” by a family member or other person. The caregiver might be neglecting the older person, providing inappropriate care, physically abusing the elder, or exploiting the elder’s money or property. Once we verified that abuse of an incapacitated elder was occurring, the question arose: How could we provide legal assistance without a direct request from the potential client?
The Ethical Problems of Representing Incompetent People
These cases present special problems to attorneys, even those providing assistance under the Older Americans Act. Just who is our client, and how has the client retained us? Often we have never seen the older person while that individual was competent and able to retain or select counsel. This was made more complex because the typical caretaker was competent and resistant to any intervention by a legal services provider. We were frequently challenged by such caregivers who demanded to know by what right we were imposing ourselves on behalf of the elderly person. Several private attorneys threatened to file grievances against the attorneys in our program for improperly soliciting clients. Their position was that their clients were looking out for the interests of their mothers, fathers, aunts, uncles, brothers, sisters, or neighbors, and we had no business getting involved in these matters.
We were able to develop several standard responses. First, the Illinois guardianship law allows any person to commence a guardianship action. That gave our program, any social service provider, or any person within such program the legal standing to commence a guardianship. Secondly, Illinois has enacted statutes empowering various agencies within the aging network to investigate complaints of elder neglect and abuse, and we asserted that we were assisting them in complying with the statutory mandate. Thus, we were really representing the Title III-B provider at that point and not the individual.
Moreover, the recently revised “Model Rules of Professional Responsibility” for lawyers give attorneys more leeway in providing legal assistance to incompetent clients, although the specific question of commencing representation of an incompetent client is not addressed. In 1983 the American Bar Association (ABA) adopted an entirely new set of “Model Rules of Professional Conduct” (“Model Rules”) which superseded the “Model Code of Professional Responsibility” (“Model Code”). The Model Rules include Rule 1.14 entitled “Client Under a Disability” that had no direct counterpart in the Model Code. The rule itself provides that when the client is impaired due to mental disability “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” The comments to the section indicate that if the incompetent client has no guardian “his lawyer may be compelled in court proceedings to make decisions on behalf of the client.” In making decisions for the client, the attorney should “consider all circumstances then prevailing and act with care to safeguard and advance all interests of his client.” Several states have already adopted the Model Rules, while other states are considering their adoption. Most states make individual modifications even when adopting the majority of the ABA proposals. Individual states may, of course, refuse to adopt any or all of the ethical codes suggested by the ABA.
In some cases we had the client execute a retainer agreement asking us to provide legal assistance. Since the law presumes that all persons of legal age are mentally competent, this placed the burden on the family member to seek adjudication of incompetence and prove the retainer agreement was not valid. This allowed us to enter our appearance on behalf of the older person and see that his or her rights were protected. Usually this was the last thing the family member/caretaker wanted. Additionally, the lawyer representing the family member had often been involved in questionable activity, including the drafting of powers of attorney or deeds at a time the elder probably was not competent. Under the circumstances, these factors made it unlikely that an attorney for the elder would pursue a grievance against another attorney—particularly an attorney who had no financial stake in representing the older person. However, the problem of an attorney commencing legal representation of an incompetent person is a serious problem that cannot easily be sloughed off. It is not an issue easily addressed.
While serious ethical issues are raised when commencing legal representation of an incompetent person, the alternative to legal intervention is to simply allow the abuse to continue or become more extensive and serious. While recognizing the inherent problems in such representation, taking no action appears the least ethical and advisable course of action.
Action of Counsel for Incompetent Adult
If the client appears unable to make appropriate decisions regarding personal care and property and no pre-need planning has been undertaken by the client through the execution of a durable power of attorney or creation of a living trust, the attorney is placed in a difficult position. Although the recent rules of professional ethics for attorneys give counsel more flexibility, ultimately some type of formal, substitute decision making will have to be implemented. Since the execution of such devices as durable powers of attorney or trusts requires that the individual is competent, this generally means that when an elder is no longer competent and some type of substitute decision maker must be designated, a guardian will have to be appointed to make decisions for the older person.
Guardianships are highly intrusive procedures that significantly restrict the rights of older people. Although some states – including Illinois – allow limited guardianships in which the guardian has authority to make only limited decisions, in the vast majority of cases a plenary guardian is appointed that essentially deprives the older person of the right to self-determination and control of assets. Without question, guardianships have become primary devices for exploiting older people.
Nevertheless, a guardianship also can be a vehicle by which the rights of a person are protected. This is particularly true when it is necessary to marshal and protect assets and when some type of affirmative action (such as litigation or physical relocation of the individual) is needed to remedy previous abuse. A guardian will have the legal authority to protect existing assets, investigate prior transfers of assets, and commence action to remedy prior abuse. Once a guardianship is imposed the available remedies for undoing financial abuse can be undertaken by the guardian.
Identifying Physical Abuse at Intake
Physical abuse is a serious problem for older people that must be aggressively addressed by counsel. Although attorneys will sometimes find their clients’ stories difficult to believe, the truth is that cases of elder abuse do exist, thus the course of action is to err in favor of taking steps to protect the client. The first concern of the attorney must be to safely remove the client from harm. This may mean getting the client into a “safe” house, whether that is a women’s shelter, home of a family member, or a motel. It also may require going into court and pursuing the available remedies. Most states have remedies available to enjoin or prohibit physical abuse and to order the separation of the parties. These remedies will always be available when the accused abuser is a spouse and will often be appropriate when the abuser is a child, family member, or caregiver. In Illinois such remedies are provided under the Domestic Violence Act or the guardianship statutes that provide for the appointment of a guardian on a temporary or emergency basis.
Physical abuse among older persons raises unique questions of the disability of both the victim and the abuser. We have been involved in several cases of domestic violence involving couples who have been married more than 50 years. In one case, we had corroborated evidence of the 70-year-old wife striking her 84-year-old physically disabled husband with a two-by-four to such an extent that he required hospitalization. During the interview with the husband it was apparent that the couple’s marriage had long been stormy, with physical abuse routinely occurring between the husband and wife. The level of violence had increased when the husband became physically disabled. The couple’s children viewed the two-by-four incident as simply an extension of the long-standing violence in the home and declined to take any action. Although the local prosecutor was willing to charge the wife with aggravated battery, the client declined criminal prosecution. When contact was made with the wife, it appeared quite likely she was suffering from some type of mental deterioration, but he refused all offers of assistance, and the children were too frightened of their mother to intervene. Ultimately the husband also refused all offers of legal assistance, although he remained fearful of returning home. It appeared certain that without some type of intervention, the violence in the home would continue. Ultimately the case was resolved by moving the husband to the home of his daughter in a nearby community, while the case coordination unit continued to make contact with the wife, who was now at home alone, still refusing all services. Although this was not an optimal resolution of the case, the victim was now safe.
Other cases present a picture of violence relating directly to the mental deterioration of the partners. In other circumstances the “victims” of the spouse abuse have reported elaborate and bizarre stories of marital infidelity by the abuser that leads one to question the competence of the client. We have been confronted on several occasions with clients (both male and female) who have described graphic acts of sexual misconduct between their spouses of many years and much younger persons. Sometimes such assertions are combined with charges of extraordinary promiscuity by the elderly spouse. Such claims are obviously difficult to evaluate and require careful consideration for fear that either we will ignore serious complaints or proceed on the basis of information that is the result of the mental deterioration or drug use of our clients. In all of these cases, counsel has to consider the relationship of physical abuse to mental deterioration, alcoholism, depression, drug abuse, and drug interaction (including over-the-counter medication) by both the client and alleged abuser.
Although counsel must always verify claims of abuse before commencing litigation and must not make unsubstantiated allegations, in all cases, regardless of the genesis of the abuse, counsel must take prompt action to remove the client from harm.
LONG-TERM LEGAL INTERVENTION TO PREVENT PHYSICAL ABUSE OF OLDER PEOPLE
Once the client has been removed from immediate physical jeopardy, the client and the lawyer must develop a long-term strategy for permanently ensuring that the older client is protected from physical abuse. It must be recognized that there usually are a range of remedies – both criminal and civil – available to aid a physically abused person. But often the primary problem will lie in providing the appropriate means of support that will allow the victim of abuse to take the steps necessary to permanently remove the cause of the abuse. Older victims of abuse, both male and female, show the familiar characteristics of “battered spouse syndrome,” whether the abuser is a spouse, child, or caregiver. The victim of the abuse is fearful of the abuser but strongly desires to return to the endangering situation, even at the risk of personal safety. Often, after the initial efforts to place the client out of immediate harm, the client withdraws from the legal process and returns to the previous situation that imperiled the client’s well-being.
A high percentage of elder abuse cases require the involvement of social service providers to ensure that the client receives the support necessary during the stressful period of making major and permanent changes in the elder’s life. The supportive services may be as basic as assuring that all appropriate Title Ill services such as home-delivered meals, housekeeping, and the completion of other chores are available to the client, but they may also include psychological therapy, medical treatment, police protection, and application for additional public benefits.
The client must understand that, even under the best of circumstances, the legal process takes time. Fortunately, when the client is willing, prompt relief can be obtained in cases of physical violence. Physical abuse is always criminal. Indeed, Illinois has adopted legislation that makes the simple battery (striking) of a person who is older than 60 years of age a felony – aggravated battery – punishable by a prison sentence of two to five years. Of course, the mere fact that the older person has been the victim of crime does not mean that the case will be investigated by the police or pursued by the local prosecutor. The unfortunate truth is that some law enforcement personnel treat elder abuse as “domestic disputes” that should not be pursued in court. Any legal services or social service agency faced with such an assertion should take action to raise the consciousness of the police and prosecutor to the seriousness of the problem. Ultimately, this issue may require political or media attention if the criminal justice system is slow to prosecute these criminal acts.
The advantages of pursuing a case through the criminal justice system are that the cost is borne by the government; the courts have broad discretion to create remedies that are legally enforceable, including the ordering of treatment, counseling, and therapy; and there is an investigative and legal representation system already in place. The criminal justice system remains essentially punitive, however, and is usually not the best system in which to resolve the long-term problem of abuse, other than simply removing the abuser from the victim’s home – which is often an important goal. In some cases, particularly those not involving spouse abuse, criminal prosecution may well be the best remedy for permanently removing an abusive child, family member, or caregiver from the home.
Civil remedies are also available. Certainly if the issue is spouse abuse, the case should be pursued in the same way as any divorce or separation that involves domestic violence. Temporary orders can be entered by the divorce court that will separate the parties, provide temporary support, award temporary possession of the marital home, and provide sanctions for violation of the order. At this point, if appropriate, counseling, treatment, or mediation can be started. Alternatively, the case can proceed to a dissolution of the marriage with attendant long-term support commitments, property distribution, and separation orders.
Most states have some type of civil legal process for separating older people who are victims of physical abuse from persons other than spouses. In Illinois orders of protection can be obtained under the Domestic Violence Act to protect an older person from the physical abuse of a family member or members of the same household. In fact, the statute was amended in the fall of 1989 to expand the protection to include caregivers who do not live in the same household.
Contrary to many assertions, the Legal Clinic has found courts extremely responsive to petitions under the Illinois Domestic Violence Act to protect older people from the physical abuse of spouses and others. Without exception courts have been willing to issue emergency orders on little or no notice (as allowed by the Act) and have not hesitated to enter final orders in such cases whether or not the defendant appears. We have found that in cases of physical abuse, judges almost always believe the assertions of the victim and find that the abuse did, in fact, exist.
By far the greatest problem in elder abuse cases is in having the client pursue the remedy to completion. Usually the client, still fearful from the last attack, is willing to testify in support of a temporary or emergency order but is sometimes unwilling to pursue the matter through to a final, long-term order, which can take 30 days or more. Although sometimes there are other people available who can testify in support of an order of protection, as a general rule it will not be possible to obtain a plenary order of protection without the cooperation and testimony of the victim.
Finally, it is possible to sue the abuser for damages arising from the physical abuse. This would include the availability of substantial punitive damages. While this is not a typical remedy, it must be considered, particularly when the abuser has resources that can be awarded to the older person.
As a general rule, in the case of physical abuse, the major problem will be the lack of action by recalcitrant law enforcement officials and apprehensive victims. Most states have sufficient remedies to deal with the problem of violence towards elderly people, if the cases are properly presented. If a state has no such remedies, the legislature and courts must be encouraged to enact such provisions.
In pursuing legal remedies to protect against the physical abuse of the elderly, there have been two recurring, and related, problems. Many older people are physically dependent on the abuser. Although there may be substantial physical abuse, the abuser makes it possible for the victim to remain at home. If the abuser is removed from the home or ordered to have no contact with the elder, the result might be that the victim has to leave home in favor of a long-term care facility. This obviously deters the elder from seeking assistance in ending the abuse. Under such circumstances, the client and the support network must balance the benefits of having the client live with the abuser against the realized and potential harm of the abuse. In some cases, alternative living arrangements will have to be found, while in other situations the remedy sought against the abuser will be something short of exclusion from the home or no contact with the older person. Courts generally have sufficient discretion to order therapy and treatment that may provide assistance to the abuser. Thus, the remedy sought in court must be tailored to meet the specific needs of the client.
Secondly, the dissolution of a marriage or the separation of the elder from the abuser may raise questions about whether the older person can remain in the same home, even in cases where the victim is not physically or economically dependent on the abuser, but also does not own the home in which he or she was residing. This is a particularly serious question in cases of remarriages late in life when the victim of the abuse lives in the spouse’s home. It is also an issue when the victim lives in a child’s or caregiver’s home. This may be a matter determined by local divorce law. In commencing litigation, however, one must always be concerned with where the client will live after the matter is settled. It is certainly a Pyrrhic victory if the victim and abuser have been separated, but the victim has to go to a nursing home as a result of the separation. Again, the issue of where the client will reside after the issue of abuse has been resolved is of crucial importance from the outset.
LEGAL INTERVENTIONS TO PREVENT AND REMEDY FINANCIAL EXPLOITATION AND ABUSE OF OLDER PEOPLE
The legal remedies to combat financial abuse of older people are more difficult to attain than legal remedies in the cases of physical abuse. Usually there are two distinct parts to legal representation to remedy financial abuse. The first is to take the steps necessary to terminate the exploitation. The second, to remedy past abuse and make the older person whole after the past exploitation.
Sometimes, stopping future abuse can be fairly straightforward. This may be as simple as revoking a power of attorney, replacing the locks on the front door, or changing the names on the bank accounts. Usually these steps can be taken by the older person unilaterally. Other remedies require third party assistance. For example, the Social Security Administration will generally not remove or change a representative payee without giving notice to the present payee. Some banks will not change ownership of an account or instrument of deposit without the physical possession of the passbook or certificate of deposit or the consent of each of the signatories. In the case of transfer of real estate, the only way the ownership can be changed back to that of the elderly person alone is either through the voluntary act of the abuser or litigation.
Litigating financial abuse cases is often difficult for several reasons. Unlike physical abuse, financial abuse cases are seldom clear-cut. Perhaps the abuser did use some of the victim’s money for the elder’s well-being; perhaps the older person did want the son or daughter to have the house at the person’s death; and perhaps the client is not 100% mentally competent or able to recall dates and facts with specificity. Additionally, the elderly client is usually not enthusiastic about pursuing a case to litigation, particularly if the proposed defendant is an adult child or family member. Some older people (as well as many younger people) are simply frightened of courts, lawyers, and litigation. These considerations all warrant making litigation a last resort and then only with a client who is likely to withstand the time and stress of litigation. Even when legal assistance is being provided without cost to the client, pursuing litigation can still be expensive to either the client or the legal service provider. Frequently the filing and service fees can approach $200 if a jury is requested, and such fees can be waived only if the individual is legally indigent. Moreover, most cases involve some discovery costs for paying court reporters to take deposition testimony and preparing the transcripts of such depositions. These costs cannot be waived due to the indigence of a party. In rural areas, the travel expense of getting to the depositions can also be a factor. It is also possible that if the action is dismissed, the court costs will be imposed on the losing plaintiff.
The second problem is that the remedies available to undo financial abuse are arcane and must be borrowed from other areas of the law. Unlike domestic violence, which has led to the adoption of statutes specifically designed to remedy the problem, only very recently have more modern remedies been created to address financial abuse of older adults. Such traditional or common law remedies as conversion, imposition of constructive trusts, and accounting must be tailored to attack financial abuse. These are not procedures that are familiar to most attorneys or judges; they require study and, thus, become time consuming.
A final problem is that credibility determinations play a large role in successfully pursuing financial abuse cases. The abuser is often a well-to-do or upstanding member of the community, while the victim is sometimes a frail individual who may obviously be infirm. Since the burden will be on the elderly person to prove financial exploitation, it is not difficult for the judge to conclude that the older person is mistaken or “confused.” While such decisions smack of ageism, a determination of which witnesses are to be believed is almost always up to the judge or jury. The defendant’s counsel will often paternalistically suggest that while the plaintiff is sincere and well-meaning, she is “slipping” and does not understand what her son, daughter, or other caregiver was trying to do.
Thus, most attorneys will hesitate to bring such suits. However, it must be strongly emphasized that there is a critical role for counsel even if litigation is never pursued or even contemplated. Many cases of financial abuse can be resolved without litigation being filed. Simply the advocacy of counsel for a dependent and frail elder can result in the abuser returning the property and terminating the exploitation. The fear of lawyers and litigation is significant, particularly when the abuser comprehends the seriousness of the matter. Additionally, an attorney can act as part of the older person’s support system by which he or she is extricated from the cycle of abuse. Merely having access to legal assistance is important under such circumstances. Our experience is that litigation is filed in less than a quarter of the elder abuse cases we conclude in a manner that is satisfactory to the client, thus demonstrating the broader role of legal assistance to combat abuse.
Once the decision is made to go forward with litigation, however, there are some weapons available in the arsenal of the plaintiff’s counsel. One of the most potent is to seek punitive damages. Punitive damages are provided for malicious and intentional wrongdoing and are intended to punish and deter the wrongdoer, rather than to merely compensate or make whole the victim. Punitive damages can be much larger than compensatory damages and may be awarded within the discretion of the jury. Thus, seeking substantial punitive damages on behalf of an elderly client who has been the victim of financial abuse considerably raises the stakes for the defendant. Obviously, counsel must make a good faith determination that punitive damages are warranted in the case, but this additional element can be used to most fully compensate the client, to truly punish the abuser, or as leverage in settling the litigation.
Our experience shows that even with all of the problems inherent in using litigation to remedy financial exploitation, the results are often highly satisfactory to the client. These cases almost never come to trial and usually end in a prompt settlement on terms favorable to the client. Our experience shows that the improperly obtained funds or property almost always are returned, in exchange for dropping the lawsuit and the claim for punitive damages. In some cases, an amount of damages above the actual loss can be gained to pay the costs of the litigation and the inconvenience of the victim.
Of course, the Legal Clinic does not charge attorney’s fees to our clients. Generally this type of litigation is labor intensive, legally complex, and emotionally draining. Private lawyers can be interested in such cases, but only if the potential recovery is sufficient to afford a reasonable legal fee out of the amount of the recovery. In such circumstances, the recovery will have to be sufficiently large to justify the legal representation. When punitive damages are added to compensatory damages, the total amount awarded the victim will be larger, thus the lawyer’s fees, a percentage of the total, also will be larger. This possibility may encourage lawyers to take on these cases. Thus, this provides another valid reason for awarding punitive damages.
Criminal Sanctions for Financial Exploitation
Financial abuse is often also criminal misconduct. Certainly the outright theft of property is a crime, as is the expropriation of public benefit checks. Recently Illinois adopted legislation making financial exploitation a crime.
Even with such new legislation, prosecution of adult children and caregivers for financial abuse is unlikely. These cases are even more difficult to pursue than crimes relating to physical abuse because the facts are often not entirely clear and evidence is difficult to obtain. Local prosecutors know they must be able to convince a judge or jury “beyond a reasonable doubt” that the offense has occurred, and this may be problematic for many of the reasons outlined above. It may be necessary to raise the consciousness of the police and prosecutors so they will pursue elder abuse cases, even when they may not be interested in doing so. This consciousness- raising is best done in a setting outside the context of individual cases so that circumstances in individual cases will not be confused with the overall goal of the discussion.
Remedies for Breaches of Specific Fiduciary Duties
Abusers who operate under powers of attorney, trusts, or guardianships have a higher standard of duty to the elderly person than do others without such powers. It also may be possible to argue that even without a formal legal instrument or appointment, a fiduciary relationship exists when a person has undertaken the care of an elderly person, particularly if that person is disabled. Depending on the facts, a court may find that a guardian-like relationship exists, even without formal appointment, and impose on the caregiver a fiduciary relationship to safeguard the elder’s assets. Such a constructive trust will be imposed if fraud or abuse of a confidential relationship is present. It is quite likely that when the elder is frail and dependent and has allowed a third party to handle assets, such a constructive trust will be found, even in the absence of formal documentation. Such persons owe a fiduciary duty to the elder to use the available resources for the benefit of the older person. This means, for example, that the burden will not be as great on the exploited person if the abuser used a power of attorney to extract funds, as if no such instrument existed. When such a fiduciary relationship exists, a remedy will exist if the funds or property were used for something other than the elder’s best interests.
When a fiduciary relationship does exist, it is generally possible to go into court and force the fiduciary to provide the beneficiary with an accounting of the way money and property have been expended. Moreover, most state guardianship and trust laws require some type of periodic accounting to the court or beneficiary. If such reports are not submitted, a court can force compliance with the law.
Once an accounting has been provided, it is then possible to review the expenditures and ascertain whether any impropriety has occurred. If so, legal action can then be commenced to force the fiduciary to repay the beneficiary. Again, punitive damages may be available when the misconduct is willful. In many instances, the guardian or trustee will have posted a bond. This bond is either a signed promise to compensate the beneficiary to a specifically stated amount if any misconduct is found or such bond may be essentially a commercial insurance policy protecting the estate of the beneficiary from invasion. If a bond exists, it will expedite the legal procedures and increase the probability of recovery.
Obviously there will be many difficult questions that arise even when the abuser stands in the role of a fiduciary. For example, if the adult child of an elder was an agent appointed under a durable power of attorney, that does not prevent the elder from transferring property to the child. This means that the agent might assert that the funds were outside those managed under the power of attorney. Additional issues concern whether the use of the elder’s property for the direct benefit of the child is actually in the “best interests” of the elder and thus is proper even when the child stood in a fiduciary relationship with the parent. It has been asserted, for example, that a guardian could properly give herself money to live on from the estate of her disabled mother because the mother—if competent—would have given the child the same amounts. Such arguments usually are not availing, but demonstrate the complexities of such cases. Nevertheless the remedies are greater when there is some type of fiduciary relationship between the parties.
Remedies Where No Fiduciary Relationship Exists
When there is no criminal prosecution and no fiduciary relationship between the elder and the abuser, remedies still exist to remedy past exploitation. Unlike situations in which some special fiduciary relationship exists, however, the burden will be on the elder to prove some type of fraud, overreaching, i.e., exceeding the authority that is granted or misrepresentation on the part of the abuser in order to obtain relief. Several common examples illustrate the difficulty.
The elder adds her daughter’s name to a bank account as a joint tenant. The daughter withdraws substantial sums from the account and refuses to return the money to her mother. Under such circumstances, the burden will be on the mother to prove that the joint tenancy was created strictly for convenience and not with the intention of transferring ownership and use of the funds in the account. This may be complicated by the elder’s expressed intention that the daughter would become owner of the money after the elder’s death. It may also be complicated by the adult child previously using the funds with the mother’s knowledge and consent. In some cases, the adult child will assert that while she withdrew the money from the bank, the funds were actually used for the mother’s benefit. This leaves to the elder the problem of tracking the money and proving misappropriation.
In another typical scenario, the abuser urges the elder to transfer ownership of real estate in the effort to “avoid probate” or avoid a lien in case of the need for long-term care. Then the abuser either conveys or encumbers the property or refuses to return the real estate to the older person if requested. Again, the deed transferring ownership will be presumptive evidence that an entirely valid transfer has taken place. The burden will be on the elder to prove that the conveyance was fraudulent or unintended. Additionally, if it can be established that the elder was not mentally competent when the conveyance was made, the transfer may be nullified, but generally these are very difficult cases to win for the elder – if the matter goes to trial.
Most cases are settled early in the process, often on terms favorable to the elderly. Of course, if the money has been spent or the property reconveyed, the value of the remedy may depend on whether the defendant-abuser has independent assets that can be reached by the elderly victim. Unfortunately, many abusers are themselves indigent, having already dissipated the gains of the abuse.
It is also unfortunate that a percentage of these cases cannot be pursued due to the death or incompetence of the elder. Since most cases depend heavily on the testimonies and credibility of the elderly plaintiffs, counsel must take prompt action in filing and pursuing such claims. Conversely, defense counsel will often delay the case to gain the opposite strategic advantage. The “ticking clock” aspect of elder abuse litigation warrants the use of devices such as obtaining the victim’s evidence deposition early in the process to preserve testimony in the event it is not available later in the procedure. In an evidence deposition, the testimony of the elder is given under oath before a court reporter with the same evidentiary rules as would apply at trial. Such a deposition can be admitted at trial if the witness cannot be present due to death or disability. Under some circumstances, such a deposition can be used to augment the trial testimony of a witness. An evidence deposition is different than a discovery deposition that generally cannot be used in place of the witness’ own testimony at trial. Aggressive pursuit of the litigation also pressures the opposing counsel to assess early on the merits of the case and motivate early settlement.
The more healthy, lucid, strong-willed, and sophisticated the client – the greater the likelihood of a good result. If the case ultimately goes to trial, the client must be able to withstand the pressure of the courtroom including cross-examination. Commencing litigation is a commitment by the client, and it is extremely frustrating to have the matter dropped midway through discovery, without any relief being achieved, because the client is unable to cope with the stress of litigation. This is another area in which the development of a support network for the client may be vital to the success of the legal remedy. We have found that interaction with the social service providers can be important in sustaining a client through the period of litigation, which may be several months.
Given the high rate of settlement and the inability or unwillingness of clients to complete the cases, very few cases are actually tried. If financial abuse cases go to trial, they are difficult to litigate. On the other hand, the mere filing of litigation often results in the correction of the abusive situation without further legal procedures. Litigation thus remains an important tool that needs to be pursued judiciously.
LEGAL INTERVENTION IN THE CASE OF NEGLECT OF THE ELDERLY
Cases are also referred to us that involve an elderly person in the care of a third party who appears to have been placed in a health- threatening situation by the neglect of the caregiver. There are several initial problems presented. First, the neglect has to be verified. The information may come from less than reliable sources: a family member who has long been estranged from the caregiver; a service provider who has had only fleeting contact with the elder; or a friend who may have no actual evidence of neglect but just “knows” that something bad is happening. In such circumstances our first response is to contact the agency responsible for investigating elder abuse under Illinois statutes. That agency will dispatch a case manager within 24 hours of the request to interview the victim of the alleged neglect. Usually the case manager is able to verify the information he or she has received from the individual’s manager or agency reporting the neglect. If the case manager is unable to gain entry to observe the elder, the assistance of law enforcement officers can be sought, and usually, but not always, it is provided. This process of simply verifying the report of abuse entails an intrusion into the privacy of the elder, the individual’s family, and the caregiver, and must be handled very delicately. Nevertheless, the first response has to be to “eyeball” the client.
If the neglect is verified, efforts are made to ascertain whether the client is competent. If so, the elder has the right to make the decision to remain in the present environment and no further action is taken. Here again, a judgment call is required. We have concluded that a competent person has the right to live in a filthy, health threatening environment. The issue becomes more difficult when the situation is not only health-threatening, but life-threatening. Sometimes we have determined that the individual’s decision to remain in an imminently dangerous situation was itself evidence of incapacity, while other times we have concluded that the right to autonomy included the right to make a decision that would lead to death through self-neglect. If the elder expresses a desire to be removed from the situation, or if the person appears unable to make a decision regarding his or her placement, action will be taken. If the elder is competent and requests assistance in leaving the location, we will assist in effectuating that desire. If that requires the aid of ambulance or police, that is done. If the caregiver attempts to interfere with the removal of the neglected person, the Domestic Violence Act can now be used to obtain a court order or trespassing laws can be invoked. An adult child, caregiver, attorney-in-fact, or spouse has no legal ability or right to deny access to an elder or to interfere with the effectuation of a competent elder’s wishes.
Often the neglect will be combined with other forms of abuse. For example, in several cases we have found that the parent transferred ownership of the home to the child, and then the child neglected the parent. Thus, when we attempted to extricate the parent from the home, the adult child asserted we were trespassing on his or her property. Moreover, the child asserted that the transfer of the real estate was in payment for providing “care” for the remainder of the parent’s life. Such claims, even if true, are irrelevant to the issue of removing the elder from a neglectful or abusive environment. The older person never becomes a chattel, subject to the control and whims of the caregiver, even if the elder has transferred all of his property to the individual or has entered into a written agreement for care. The notion that an adult child, a caregiver, or a family member who has not been appointed the legal guardian has the “right” to control the care of the elder – against the wishes of the elder or in a manner not in the elder’s best interests – is legal nonsense and must be treated as such.
Once the elder is removed from immediate danger, a plan must be developed for the long-term care of the individual. Often with improved nutrition, the elder can be returned home with appropriate supportive services. Legal interventions may include revocation of powers of attorney; termination of guardianship; substitution of guardians; or the affirmative use of a guardian to protect the elder. After the personal safety of the person is assured, attention can be given to reclaiming any exploited property or funds.
The primary legal issues that arise in cases of elder neglect are (1) obtaining access to the elder; (2) obtaining the legal right to remove the elder from the home; (3) defeating the effort of the family member or caregiver to claim a “right” to provide treatment for the parent or elder; (4) assuring long-term care and protection for the elder; (5) undoing any legal process that has empowered the person who has been neglectful; and (6) obtaining legal procedures for compensating the abused elder.
THE ROLE OF COMMUNITY LEGAL EDUCATION IN COMBATING ELDER ABUSE
Without question, the single most effective device in combating elder abuse is community legal education. Older people must be told repeatedly that they have certain basic rights that include privacy, autonomy, control of assets, medical and personal decision- making, and the right to be free of abuse. We provide extensive community education to a wide variety of groups. While the elders who eat lunch at the nutrition centers are an obvious target audience, outreach to other groups is essential. The American Association of Retired Persons chapters, various support groups for elders, fraternal and business organizations, and church groups are also appropriate audiences.
The media also have to be used creatively. When the extent and nature of the problem of elder abuse is explained to the media, this becomes a story they want to cover because of the human interest angle.
Whether the audience is a women’s club or television reporters, it is necessary to spell out the problem in detail. Many people still refuse to believe that abuse of older people exists, or, if it does exist, it exists somewhere else. Thus it is necessary to tell “horror stories” and to point out that these incidents occurred close to home. Some people do not understand the types of conduct that constitute financial abuse, and it is thus necessary to graphically describe the problem. It is also necessary to tell older people that these problems are quite common and that a substantial network for protection from elder abuse is in place and can be used for their personal protection. Our universal experience is that after a talk to an organization, several elders will request private interviews to discuss individual problems. After a television appearance or newspaper article, requests for assistance increase substantially.
One of the greatest frustrations we have is with other lawyers. Clearly, lawyers facilitate some cases of financial abuse and do not recognize many oilier cases. The problem goes well beyond protecting their clients, which is both appropriate and necessary. In case after case, we have seen attorneys who draft instruments for execution by clearly incompetent people, or attorneys who fail to advise older people of the consequences of some action or the wisdom of obtaining independent legal assistance, even when such advice is obviously ethically required. As a general rule, the legal profession has not fulfilled its obligation to protect older people from the abuse and exploitation of their children, family, and caregivers. This is clearly an area in which additional work must be accomplished.
The legal profession has an important role in combatting physical and financial abuse of older people. However, the most effective assistance requires the combined effort of attorneys and social service providers. Legal advocates for victims of abuse must be prepared to pursue cases aggressively and seek non-traditional remedies or remedies borrowed from other areas of the law. Attorneys must be advocates for the creation and expansion of legal remedies that will expedite the identification and eradication of elder abuse, while, at the same time, protect the rights of older people and their families. This requires individual advocacy, public information, political action, and the diligence and will power to pursue difficult and unpleasant matters. It also requires attorneys working with older clients to work through a series of difficult, and heretofore unresolved, ethical problems. With the interaction of legal and social forces, substantial steps can be taken to reduce elder abuse and remedy such conditions when they do exist.