Secrets in America: New Documentary Focuses on Elder Financial Abuse

By the time David Jones emailed me to say that “our” film was finished, I’d forgotten all about it. It was well over a year since I’d met Stanislaus County’s Communications Director and it had taken that long to secure the funds and produce the half-hour long Secrets in America. With $12,000 in grants from the Stanislaus Community Foundation and Kaiser Permanente, David used friends and volunteers to shoot footage from San Francisco to Washington, D.C.

Despite the delays, the film is very timely, covering issues like predatory lending, lottery scams, and the sale of overpriced or worthless deferred annuities and reverse mortgages.

The film packs a powerful “neighbors looking out for neighbors” message through the account of Telvina Dias, who let two home repair cons into her home and was intimidated into writing them a check for a $2,500. Dias is exuberant as she describes how police, called by vigilant neighbor Jim Ross, nabbed the crooks. They’d approached Ross earlier, and he’d been watching Dias’ ordeal unfold. The film also emphasizes the importance of families looking out for elderly members and elders staying engaged with friends.

Actor Doris Roberts, best known for “Everybody Loves Raymond” makes an appearance. Roberts has participated in other Stanislaus County anti-abuse events and testified before Congress about elder abuse and ageism. You may recognize some other familiar faces.

One hundred DVDs were produced for senior centers, retirement communities, churches, and other venues; and nonprofit organizations can get copies for free. David also plans to pitch the film to PBS affiliates. To view it, click Secrets in America.

New Cal Law Allows for Video-Conferencing in Elder Abuse Cases

Among California’s new laws that went into effect on Jan 1 was AB 1158, which allows for the use of two-way video conferencing to examine witnesses who can't come to court. The new law may be a first step in tackling some of the obstacles posed by the 2004 US Supreme Court’s Crawford v. Washington decision, which was a major setback in the prosecution of elder abuse cases (even though the case didn’t involve elder abuse).

Here's the issue. Under the Sixth Amendment to the US Constitution, persons accused of crimes have the right to confront their accusers at trial. It limits the use of “hearsay,” or second-hand accounts made outside of courts, which often take the form of police officers conveying statements made by victims immediately after crimes are committed. These statements are particularly important in domestic violence and elder and child abuse cases because victims often recant their statements, and, under certain circumstances, their immediate responses are considered to be more reliable than those they make later. In elder abuse cases, there's the additional problem of victims not being able to come to court because they're ill, debilitated, or have relocated.

In the 1990s, advocates for victims of domestic violence, child abuse, and elder abuse sponsored laws allowing victims to avoid testifying in court in some situations. These included a 1999 elder abuse law (AB 526), which allowed juries to hear videotaped statements to police from elderly or incapacitated adults who were unable to come to court.

The Crawford case involved Michael Crawford, who was convicted of stabbing a man he believed had tried to rape his wife. The Supreme Court barred the tape-recorded, eyewitness account of the stabbing by Crawford’s wife, ruling that “testimonial statements” made out of court cannot be used at trial unless the person who made the statement is available for cross-examination. Statements are considered “testimonial” if they are knowingly made to law enforcement or government agents associated with law enforcement and provide evidence for later use in court. The court did not define the various types of testimonial statements that are covered, and subsequent cases are putting the definition to the test.

Still, the decision has had tremendous impact. It's restricted the use of evidence that was previously admissible and has been used to overturn convictions under child abuse and domestic violence laws. A state appeals court in San Jose used it to overturn California’s 1999 videotaping law.

Two-way video conferencing allows for victims who can't come to court to testify while protecting the rights of the accused to confront them. However, the use of "virtual confrontation" has been challenged in other settings, and it remains to be seen how it will be used in elder abuse cases. AB 1158 was sponsored by the San Francisco District Attorney and supported by the California District Attorneys Association, the California Senior Legislature, and the California Alliance for Retired Americans.

Getting Our Minds (and Laws) Around Undue Influence

Undue influence. We know it when we see it, and those of us in elder abuse prevention see it often: elders who are ill, lonesome, isolated, impaired, or grieving being persuaded to give away assets, sometimes homes and life savings, to new acquaintances, suitors, family members, or even cunning cons in other countries. They use various devices--trust documents, powers of attorney, wills, sweepstake offers, bogus charities, or quickie marriages--but the results are the same: getting vulnerable elders to do things they wouldn’t have done otherwise.

Still, defining undue influence for legal purposes hasn't been easy. Maybe it’s because for some, the very prospect of outlawing persuasion or protecting people from being wooed is offensive. After all, in our consumer culture, we’re used to being lured and won over. We romanticize risk taking, gambling on long shots, or taking leaps of faith that those charming suitors really do love us.

When does persuasion become undue influence? The answer is when powerful individuals use unfair means: deception, exploiting disabilities, fostering dependency, playing on fears, emotional blackmail, and isolating elders from those they trust. But how do we set the bar in defining and measuring undue influence? What circumstances should we include and what penalties should apply? These are questions that advocates and policy makers in California are tackling in earnest these days. Here are updates on three initiatives.

Senate Bill 1140 Passes
Written by San Francisco Attorney Steve Riess and authored by Senator Darrell Steinberg, Senate Bill 1140 adds undue influence to the definition of financial abuse in California’s elder and dependent adult abuse civil protection code, providing new remedies to vulnerable elders and "fundamentally changing the obligations of those who contract with them."

In his rationale for the bill, Riess points out that we already have laws on the books that address undue influence, but they’re inadequate for elder financial abuse. Establishing that someone exercised undue influence under current law simply serves to negate contractual consent and rescind agreements, which, in non-legalese, means that it stops improper transactions. It doesn’t allow for damages or lawyers’ fees so abusers have little incentive to stop doing what they’re doing and lawyers have little incentive to take undue influence cases. By including undue influence as a basis for elder financial abuse, Senate Bill 1140 allows for the recovery of damages, attorneys’ fees, and court costs, making it more feasible for victims to initiate lawsuits and, hopefully, making would-be perps think twice. For more on the bill, see: The New Elder Financial Abuse Law: Big Changes Are Coming!

It won’t be long before the new law is put to the test. In a December 2007 New York Times article, Charles Duhigg reported that more than 760 civil lawsuits claiming elder abuse, mostly financial abuse, had been filed in the previous year, a 98% increase from five years earlier. Other states are seeing similar trends.

SB 1259 Fails
On the criminal side, SB 1259 attempted to add undue influence to the definition of elder financial abuse in California’s elder abuse criminal code (Penal Code §368). Sponsored by the California District Attorney’s Association, the bill was a response to People v. Brock, in which Norman Roussey, who had a cognitive impairment, lost his home and nearly $700,000 to his “friend” Ronald Brock who worked in the law firm that was handling Roussey’s deceased mother’s estate. (See Undue Influence is Not a Crime and Postscript on Elder Abuse is Not a Crime. The prosecutor in the case, Melissa McKowan, successfully argued that Brock had committed theft by undue influence, and Brock was sentenced to five years in prison and ordered to return the money. Later, however, an appellate court overturned the conviction. While acknowledging that Brock’s conduct was “manipulative” and “oppressive” and that Brock knew that Roussey was cognitively unable to resist his demands, the court ruled that the conduct wasn’t a crime in California. SB 1259 would have made it one by amending Penal Code §368 to include “criminal undue influence,” which it defined as:

The exploitation by a person of a known physical or mental infirmity or other physical, mental, or emotional dysfunction in a vulnerable elder or dependent adult for financial gain by one of the following methods:

• Using a position of trust or confidence or using any real or apparent authority over the vulnerable elder or dependent adult for the purpose of obtaining an unfair advantage over the vulnerable elder or dependent adult.

• Knowingly taking an oppressive and unfair advantage of a vulnerable elder or dependent adult's weakness of mind, necessities, or distress.

SB 1259 provided for a defense if the accused believed that their victims had the capacity to consent to the transactions. But for the defense to apply, the transactions had to have taken place “openly.” If defendants attempt to conceal their actions, the defense wouldn’t fly.

SB 1259 also upped the ante for repeat acts of financial elder abuse by allowing for sentence enhancements for prior convictions. It also would have expanded the scope of persons protected by broadening the definition of dependent adults and elders. Under the expanded definitions, protected parties would have included all elders (as opposed to only those with disabilities) and adults with physical as well as cognitive impairments.

The bill’s primary opponent was the California Public Defenders Association, which objected on the grounds that:

1. The proposed definitions were too broad and paternalistic in including physically disabled adults and seniors with no significant cognitive disabilities.

2. Given the budget shortfall and prison overcrowding, any legislation that increases penalties is ill timed and poor public policy.

3. The defense requirement to prove that financial transactions were done "openly" isn’t dealt with adequately. “Openly" is subject to interpretation and the law isn’t clear about who should interpret it.

For more, see Analysis of SB 1259.

Prohibited Transfers (Probate Code §21350)
The California Law Revision Commission recently released a report and recommendations about the "prohibited transfers" provisions in the state’s Probate code, which deal with undue influence. (The Commission, which includes reps from both houses of the state assembly and the executive branch, studies “defects and anachronisms” in California law and recommends legislation reforms.)

The prohibited transfers statute was originally enacted in response to a high- profile case involving an estate-planning attorney who named himself and members of his family as fiduciaries for, and beneficiaries of, clients’ estates. The prohibited transfer law prevents certain professionals from inheriting assets from clients unless they can demonstrate that they didn’t use fraud, menace, duress, or undue influence to get them. The law covers “care custodians,” essentially saying that those who receive last-minute bequests from dependent adults are presumed to have exercised undue influence, even if they were close friends of the deceased. There are several exceptions, including gifts to family members and gifts that have been reviewed by independent attorneys who certify that they aren’t the product of menace, duress, fraud, or undue influence.

The prohibited transfers statute was challenged in Bernard v. Foley, a case involving 97-year-old Carmel Bosco, who left her half million-dollar estate to two friends who cared for her during the last months of her life. While under their care, Bosco amended her living trust several times, giving more and more to the caregivers until, a few days before her death, she made them the beneficiaries of her entire estate. Bosco’s family, the original beneficiaries, sued, claiming that the caregivers had exerted undue influence over Bosco while she was gravely ill and heavily sedated. The case got down to whether the friends were in fact “care custodians,” and therefore, covered under the prohibited transfers law. The caregivers claimed that they were just “performing acts of kindness on a purely volunteer basis as good friends often do for others.”

The court found in the caregivers’ favor but the family appealed, and the appeals court reversed the decision, stating that “a caregiver may be a personal friend, and in fact, personal friends are uniquely positioned to unduly influence the elderly for whom they care.” It affirmed that the caregivers were covered under Probate Code §21350 and had failed to satisfactorily rebut the statutory presumption of undue influence.

Despite the finding, the statute has continued to raise concerns and questions, including:

• How should caregivers or caretakers be defined? Should the law differentiate between long and short–term caregivers and between those who are paid and unpaid?

• Who needs protection and how should “dependent adult” be defined?

• Will the law inhibit old friends or acquaintances from assisting elders for fear of losing any transfers that the elder may make?

• Should the law exempt families, the most common offenders in financial abuse cases?

These were among the concerns the Commission was charged to consider. Specifically it was asked to review “the proper scope of the statutory presumption of fraud and undue influence that applies when a “dependent adult” makes a gift to that person’s “care custodian.”

The Commission concluded that the care custodian presumption is broader than it needs to be, protecting people who are not necessarily subject to any heightened risk of undue influence (adults with physical disabilities) and gifts to care custodians that do not seem to be “unnatural” (i.e., gifts to friends and other volunteer caregivers). The Commission is further proposing to narrow the definition of “care custodian” to only include caregivers who provide services for remuneration (i.e., volunteers would not be included). A copy of the Commission’s report and tentative recommendations is available on its Web site at online at Recommendations. The minutes of the Commission’s meeting where the recommendations were discussed are also available online at Minutes.

Definitional Debates
Like other legislation initiatives, including SB 1259 (described above), the effort to revise Probate Code §21350 essentially gets down to how terms like “dependent and elder adults” and “caregivers” are defined. Although the definitional debates in our field may have been academic in the past, our failure to resolve them has become a barrier to effective public policy. Not only do we need to reach agreement within our own network, we're going to have to start working with those other stakeholders with whom we’re increasingly coming into conflict. These include the California Public Defenders Association, which helped kill SB 1259, and Protection and Advocacy, Inc., an advocacy group for people with disabilities in California, which is actively working with the California Law Commission on Probate Code §21350. Strangely, advocates for the elderly in California are increasingly being branded by as ageist in these conflicts owing to the broad definitions we use in defining elder abuse (unlike many states that limit protections to “vulnerable and dependent elders,” many of California’s elder abuse laws cover all elders). Surely, we could resolve some of these conflicts through upfront advocacy and consensus building. One would hope that our common interests exceed our differences.

From the Folks Who Brought You “Friendly Fire”

What do the U.S. military and the long-term care network have in common? It seems we’re competing for the same criminals (reformed, hopefully) to fill critical manpower shortages. In our case, the shortage is for nursing home employees and in-home attendants. In theirs, it’s for soldiers to fight an unpopular war. We’re both struggling with the uncertainties of deciding when past criminal conduct should not stand in the way. The military’s approach is to issue an increasing number of “moral waivers,” which permit would-be personnel who’ve committed disqualifying offenses to serve.

According to a New York Times article that ran last week, the number of moral waivers granted to Army recruits with criminal backgrounds has grown nearly 65% in the past 3 years. Prior to issuing the waivers, the military looks at the nature of the crimes, when they were committed, recruits’ degree of rehabilitation, and references from teachers, employers, coaches, and clergy. The sharpest increases have been for serious misdemeanors, which include aggravated assault, burglary, robbery, and vehicular homicide. In 2006, 11.7% of Army recruits had criminal histories.

In earlier posts, I’ve talked about how, as the pool of long-term care workers is depleted, the number of people with criminal histories being hired by nursing homes and frail elders has gone up (See Criminal Caregivers). In Texas, where people with certain convictions are barred from working in long-term care facilities or home health care settings, employers are provided with reports of all potential employees’ convictions. In 1995, facilities received reports on 3.4% of the potential employees. By 2000, that percentage had risen to 9.1%. A 2005 study of nursing homes in Michigan found that almost 10% of the state’s nursing home employees had criminal backgrounds, which included homicide, criminal sexual conduct, weapon charges, and drug offenses.

Given the current shortages, our network, like the military, has to make allowances. When New Jersey passed a law requiring all home care workers to have FBI fingerprint checks, they discovered that 400 current employees had committed disqualifying crimes. Many had been working for years, and losing them would have dealt a devastating blow to the system. The state sought to get them exempted.

I don’t believe that hiring people with criminal histories is entirely bad. Youthful mistakes don’t make people hardened criminals, and people deserve second chances. The problem is, we simply don’t know much about recidivism and patterns of re-offending. Nursing homes, or worse, the private homes of frail elders, are not exactly ideal venues for finding out (I’ll reserve comment about whether battlefields are).

What we do know about recidivism isn’t reassuring. A study commissioned by the Office of the Assistant Secretary for Planning and Evaluation (DHHS), Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring, looked at whether nursing home employees with criminal histories are more likely to commit abuse. They are.

The military has also conceded that they’re having problems. According to the Times, “many criminals have at some point exhibited serious lapses in discipline and judgment.”

Personally, I find the term “moral waiver” offensive. Still, I think our network should consider adopting it. If word got out that nursing homes and home care agencies were issuing "moral waivers" to prospective employees with criminal histories, it might ignite the public outrage needed to get the government to fund critically needed research on recidivism. Perhaps the Army would like to join us in a study.

Postscript on Undue Influence is Not a Crime

Last week, Melissa McKowan, prosecutor in the undue influence case I described in my last post, told me that the California Supreme Court has denied a request to review the appellate court’s reversal, so the case can’t be retried.

She had this to say about the case:

“I was devastated by the decision. The defendant made himself indispensable to Mr. Roussey, who became so attached to the defendent, he’d do anything he wanted. This is someone who has been told all his life that he was dumb; by prosecuting, we were saying that it was not his fault, that he was the victim of a serious crime. It was incredibly empowering. Now the court is saying it wasn’t a crime. Clearly, obviously, it was criminal conduct, and people need to understand that a financial loss like this is more devastating to seniors than a blow to the head.”

The good news is that the case has energized Melissa to fix the problem. She’s working with state California State Senator Joe Simitian and the California District Attorneys Association to write undue influence into California’s elder abuse criminal statute.