How I Spent My Vacation

No, don’t panic. Summer’s not over yet. The vacation I’m referring to is my extended hiatus from posting. My excuse is that I‘ve been hard at work helping to launch the California Elder Justice Workgroup (CEJW), a mammoth and exciting undertaking.

It started with a few of us who are involved in projects funded by the Archstone Foundation as part of its Elder Abuse and Neglect Initiative (EANI). In the hope of stirring up synergy, Archstone brings together EANI project personnel at “convenings,” day-and-a-half sessions three times a year; it was at a convening that we started talking about how many of the day-to-day headaches we faced in our work were tied to big-picture, systemic problems. Those of us working on grants to train mandated reporters in their reporting duties, for example, couldn’t get the agencies charged with investigating to agree on such basics as what’s reportable, who investigates, and which clients are eligible for protective services. Multidisciplinary teams weren’t clear about what information they could share and what they can protect. The obstacles went on and on. So we started a list.

Woody Allen’s oft-quoted line "Eighty percent of success is showing up” clearly applies to advocacy work, and members of our group continued to show up for monthly telephone meetings to add to our list and flesh out the issues. The other thing our group had going for it was members’ deep roots in key stakeholder networks, planning skills, and a penchant for identifying opportunities. Our gripe list started to turn into a plan. We got an enormous boost last October when Archstone awarded us an 18-month grant to host a  summit and enlist the help of others in developing a blueprint. 

The summit took place on April 29-30 in San Francisco, with 92 researchers, advocates, practitioners, court personnel, legal professionals, experts in nursing home reform, and many more. After plenary sessions by Bill Benson, who provided an update on the newly passed Elder Justice Act, and Daniel Marson, who described his work in legal decision-making capacity, an issue at the heart of many of the problems we’d identified, delegates broke into four groups for focused presentations and discussions:

•       A Reporting and Response group began with a presentation on structured assessment, an approach designed to improve consistency in assessing abuse referrals that’s being tested in Riverside County. The group also discussed barriers to reporting abuse in long term care (LTC) facilities, some of which stem from the fact that California is one of a handful of states that charge Ombudsmen with investigating cases reported under mandatory reporting laws on top of their federal mandate to advocate on patients’ behalf. The problem is balancing the roles of patient advocate and objective finder-of-fact. Some of the reporting issues they discussed aren’t unique to California—e.g. the need for guidance in handling cases involving “unbefriended” or “unrepresented” residents (those who lack legal decision-making capacity, responsible parties, or surrogates). 
•             The Justice System group explored the need for greater coordination among the branches of the legal system that have a role in abuse prevention. Retired judge Julie Conger led off by describing Alameda County’s “elder court,” which she started. Afterwards, the group, which included legal professionals involved in criminal, probate, and family law;  representatives from the Archstone-supported elder forensics centers; private and legal aid attorneys, and the Administrative Offices of the courts, identified the need for training to legal professionals, public education on legal issues, forensics expertise, and policy reform.  
•       The “Safeguarding the Long Term Care (LTC) Safety Net” group focused on bridging the chasm between the elder abuse and LTC networks, the latter of which includes family caregiver and dementia care programs, mental health service providers, and advocates for adults with disabilities. The importance of the LTC network in reducing vulnerability to elder abuse has come into sharp relief in light of the draconian cuts to basic services we’ve witnessed in recent months. The group recommended adding elder abuse risk factors to screening tools used by LTC programs and promoting interdisciplinary education by academic institutions. Also discussed were ways to keep dangerous people out of the LTC workforce though better screening, training, and workforce development.
•            And finally, the Financial Abuse and Exploitation discussed the rising tide and devastating impact of such high impact crimes as mass marketing fraud and predatory lending. A primary focus was on the need for more precise instruments to measure financial deficits that heighten vulnerability to exploitation and the critical need for legal and mental health services for victims. Promising preventative approaches discussed included simple policies that senior centers can adopt to block fraudsters and unscrupulous vendors who pose as objective financial advisors from gaining access to participants. Group members also agreed to explore ways to achieve greater parity for seniors by mental health and victim service programs, which have historically prioritized other populations.

Assistant Secretary of Aging Kathy Greenlee joined us on the second day with an update on the Administration on Aging’s plans and took questions and recommendations about the reauthorization of the Older Americans Act. Perhaps the highlight of the event was a “commitment ceremony” where small groups reported on their findings and delegates committed to follow-up action. We’re still in the process of sifting through the commitments, which range from hammering out protocols for reporting, developing reference materials on alternatives to conservatorship (California’s term for adult guardianships), exploring universal assessment tools for aging programs that include elder abuse risk factors, designing forensics centers that focus on abuse in LTC and financial exploitation, to tweeting about abuse.

CEJW is benefiting from the wisdom and support of non-California friends and allies. A partner and inspiration is the Vulnerable Adult Justice Project (VAJP), a coalition in Minnesota directed by Iris Freeman and housed at the William Mitchell Law School, which is about a year ahead of us in getting started. We’re also in the process of assembling a “technical advisory group” of experts in a wide range of fields. 

As long as I'm pushing the seasons here, I'll end with a resolution: To resume posting and provide regular updates on CEJW's work. You can also learn more by visiting our wiki site  at http://cejw.pbworks.com/ 

Financial Elder Abuse: Hot Off the Presses

I’ve worked with Pam Teaster, Professor at Virginia Polytechnic Institute and State University, and president of the National Committee for the Prevention of Elder Abuse (NCPEA), on a couple of research projects over the years and have always been impressed by her readiness to design studies that answer questions practitioners most want the answers to. It’s not easy to translate practice wisdom or professionals’ hunches into conceptual frameworks and designs that pass scientific muster. Which is why practice-based studies often end up employing such dubious sounding methods as “convenience” and “snowball” samples. Still, they yield insights that are enormously helpful to the field.

Pam’s recently released study on financial exploitation breaks new ground methods-wise and sheds light on how financial abuse is being addressed by the media around the country. Broken Trust: Elders, Family and Finances was a collaboration of NCPEA, Virginia Polytech, and the MetLife Mature Market Institute, the research branch of the insurance company. Pam and her colleague Karen Roberto analyzed financial abuse cases identified through the electronic clipping service operated by the National Association of Adult Protective Services for the Administration on Aging’s National Center on Elder Abuse. The service draws from Google and Yahoo scans of billions of Web pages a day. The search yielded 266 articles on financial abuse that were posted between April and June of 2008. From these, they collected information about victims and perpetrators, their relationships, victims’ losses, and case outcomes. They also reviewed the academic and trade literature on financial abuse and listed promising practices drawn from a database run by NCEA.

I was a little surprised to see “Medicare/Medicaid fraud” among the forms of abuse that were included since the term typically refers to situations where it’s the “system” that’s ripped off, not program beneficiaries. Like many in the field, I worry about defining elder abuse so broadly that the term becomes meaningless, and I’m always on the lookout for types of abuse that we can exclude. But the example cited in the report, of a physician who performed unnecessary surgeries on 865 elders and charged Medicare or Medicaid over $11 million for them, was certainly compelling. Although it might be argued that it was the system that suffered the financial loss, there’s no denying the trauma and suffering that the patients must have endured. Professionals and courts alike are struggling with the question of whether or not physical abuse, neglect, or other mistreatment, when committed for profit, also constitutes financial abuse. Other forms of financial abuse mentioned in the study include telemarketing fraud, repair and contracting scams, "sweetheart scams," fraudulent advice from insurance salespeople and stockbrokers, abuse of powers of attorney and guardianship, identity theft, and Internet "phishing."

Among the findings that are already being widely cited is the estimate that elder financial abuse costs older Americans at least $2.6 billion a year. The figure was derived by annualizing the total losses reported during the 3-month study period ($400 million) and assuming that the losses in the 40% of cases where no dollar figure was provided were comparable. I found it interesting that the largest single category of abusers was trusted professionals, which includes attorneys and fiduciaries, who accounted for 18% of the cases. They were followed respectively by family members (17%), non-agency caregivers (11%), and agency caregivers (9%). Also of interest was that almost 2/3 of the victims (65%) were women.

I asked Pam what, if anything, she found surprising. She cited the severity and impact of the abuse. “One victim likened the exploitation to being raped. I can easily see it. It would follow that the health effects and the very ability of a person to even address the effects due to diminished resources would be equally devastating.”

She also noted victims’ diversity. “While there are typologies of victims, and we tied to make one, there is enough variance to indicate that healthy and frail alike--can fall prey to exploitation.”

MetLife’s Mature Market Institute, which is directed by Sandy Timmerman, spearheads research, national partnerships, and educational materials for “those in, approaching, or caring for those in the mature market.” The full study is available on the Institute’s website at 
www.maturemarketinstitute.

For more on elder financial abuse, including identity theft against elders, undue influence, and mass marketing fraud, visit my Web site at http://lisanerenberg.com/learn/learn.html.

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.

Mediating Elder Financial Abuse

A few years ago, my long-time friend, Oakland-based attorney Frederick Hertz made the switch from litigating conflicts over money and property involving family members and partners to mediating them. When he told me that he’d teamed up with another mediator with 20 year’s experience as a family therapist to explore the legal and psychological interface of “family business” gone wrong, I was intrigued. So I sat in on a talk that he and Judy Barber gave at the Mediation Society in San Francisco earlier this year.

Their premise is that family conflicts involving money aren’t just about money. They’re also about longstanding sibling rivalries, parents’ playing off their kids against each other, and other assorted family dynamics and dysfunction. Which means that standard measures of success, like the size of settlements, are rarely adequate and even “winners” are likely to emerge feeling disappointed and wounded. Successful resolution, they contend, requires helping families move past their histories to engage in rational decision-making. That’s not to say that mediators should do family therapy, only that failure to address these issues altogether makes successful resolutions unlikely.

It seemed to me that their approach held tremendous promise for elder financial abuse cases involving family members, partners, and others with whom elders have relationships. Heidi, Li, director of the SF Consortium For Elder Abuse Prevention, agreed and offered to host a presentation to explore the use of mediation in elder financial abuse cases. It took place on December 4.

Elder abuse cases comprise a relatively small proportion of those that Fred and Judy mediate, but the hypothetical they prepared for the event did and had the group nodding in recognition. It involved an 80-year old widow with $2 million in equity and assets who’d borrowed against her home to help out a downwardly mobile son. When Mom started having trouble making the payments and called another son in a panic at the prospect of losing her home, he alerted two other siblings who were furious and wanted to sue their brother for elder abuse.

The first step in analyzing cases like this, according to Fred, is to assess the “real estate” of the transaction--the legal terrain, which includes the terms of the loan and the son’s ability to pay Mom back. But then, mediators need to look at the parties’ differences with respect to:

Their relationships to the property and assets in question. A property that’s seen as an investment to one family member may be “home” to another, with all the emotional attachment that that engenders.

The feelings of the parties (“I deserve this because I was there for Mom and you weren’t” versus “You’re too dependent on Mom; get a life!”)

Decision-making styles, which oftentimes are the result or cause of long-simmering resentments and conflicts.

Judy and Fred acknowledge that elder abuse cases may raise special considerations for mediators. These include uncertainties about capacity and undue influence, the limits of mediation with extreme power imbalances, and the effects of mandatory reporting. The latter factor was demonstrated at the Mediation Society session I attended where someone in the audience described a case he’d mediated in which the parties agreed to have a financial institution suspend activity on an account to prevent end runs while the mediation was in progress. An employee, sensing a problem, made an elder abuse report to the police, thereby potentially derailing the mediation. Still, the session served to convince me and others I spoke to afterwards that the approach clearly warrants further exploration. Seems to me that learning to recognize the factors that give rise to financial conflicts could also potentially lead to more rational estate planning and circumvent problems from arising later on.

The Consortium event ended with a presentation by Mary Joy Quinn, director of the San Francisco Superior Court’s Probate Department, describing a pro bono mediation program that she spearheaded, in which judges and commissioners refer cases to specially trained mediators as an alternative to conservatorships.

I’m delighted to add that I’ll be working with Mary Joy and Eileen Goldman again next year on a new project with the court funded by the Borchard Foundation. Working with California’s Administrative Offices of the Court, we’ll be drawing from research, case law, and practice experience to develop working definitions of undue influence that can be used in assessment and policy development.

For more on Fred and Judy, visit their Web sites at www.FrederickHertz.com and www.familymoneyconsultants.com. To learn more about how mediation and other forms of “restorative justice” are being used to prevent elder abuse, click here.

Powers of Attorney, Elder Justice, Help Hiring Helpers, and No More Minnesota Nice

New Report on Powers of Attorney (POAs)

On Thursday, AARP’s Public Policy Institute released Power of Attorney Abuse: What States Can Do About It. Written by Lori Stiegel and Ellen Klem of the American Bar Association’s Commission on Law and Aging, the 89-page document compares state laws on POAs and highlights measures that offer special protections against abuse, which include:

Clear statements of agents’ duties to act in good faith, within the scope of their authority, and according to principals’ expectations or best interests; and to follow principals’ estate plans, keep careful records, and cooperate with health care proxies.

Special language used to signal “hot powers,” particularly risky or questionable actions like changing beneficiaries.

Provisions permitting third parties to refuse to honor POAs when there's good reason to believe they’re being used to commit abuse and requiring the parties to report to APS.

Requiring those that have used POAs to misappropriate property or assets to pay it back.

Imposing sanctions for those who refuse to accept legitimate POAs.

In a USA Today article about the report, Naomi Karp, strategic policy adviser for the AARP Public Policy Institute, offered the following advice to anyone who's considering executing a POA:

Don't give anyone, even a child or spouse, POA unless you thoroughly trust that person with your finances.

Consider requiring the person who has POA to periodically report to a third party, such as your lawyer or another family member.

Make sure other family members know who has your POA so they can be on the lookout for misconduct.

The report also describes strategies for advocates who want to improve their states' POA laws. Copies are available at Power of Attorney Abuse: What States Can Do About It.

Give a Shout to the New Administration
Marie-Therese (MT) Connolly, Senior Scholar at the Woodrow Wilson International Center for Scholars (and former Coordinator of DOJ’s Elder Justice and Nursing Home Initiative) is circulating a proposal urging the new Administration to appoint high-level special advisors on elder justice at the Department of Health and Human Services and the Department of Justice to help set priorities and work with Congress and stakeholders around 3 priorities:

Improve research, evaluation, and data collection;

Enhance interventions and responses; and

Increase public awareness

Questions can be directed to MT at marie.connolly@wilsoncenter.org

New Web Site to Help Hire In-home Helpers
Safe Help in Your Home is a new Web site created by Lynn Loar and Jane Tamagna to guide people through the process of screening, hiring, and managing in-home aides. The content is slated for inclusion in their forthcoming book And You Thought Talking to Your Parents About Sex Was Hard—Finding Out What Your Parents Want toward the End of Their Lives. Lynn Loar is a licensed clinical social worker with expertise in abuse and neglect across the lifespan and Jane Tamagna is a social issues editor who has worked for the Bureau of National Affairs and is on the faculty of American University's School of Public Affairs.

The site is for people who are thinking of hiring in-home help for themselves, relatives, or friends; for care providers who want to show clients that they’re capable, trustworthy and responsible; and for agencies that want to provide capable, trustworthy, and responsible aides to clients.

What’s unique about Loar's and Tamagna’s tools, which include comprehensive checklists, are that they go beyond the standard steps (e.g. references, criminal background checks, etc.) to address such common-sense yet critical concerns as matching clients' and caregivers' personality types to avoid conflict. They also advise employers to check child and sex abuser registries and ask potential employees for copies of credit histories and DMV files. Their work draws from their experiences in the field of child abuse prevention, which is significantly ahead of ours in this arena, and they respond (justifiably, if not too gently) to common excuses and justifications they’ve heard from our ranks for why we don’t do more (“It’s too expensive,” “Aren’t we exposing ourselves to more liability by digging deeply? etc.).
Visit the site at Safe Help in Your Home. For more on elder abuse by paid caregivers, see Abuse by Paid Caregivers.

No More “Minnesota Nice"
As a native Minnesotan, I got a kick out of the Minnesota Department of Public Safety’s anti-scam campaign, “No More Minnesota Nice,” which warns Minnesotans about lottery and sweepstakes scams. I’d assumed that the point of the campaign was to urge us Minnesotans to eschew our notorious niceness and hang up on fraudsters as quickly as possible or tell them where to go. Which makes sense since criminal telemarketers know that the longer they can keep someone on the phone, the more likely they’ll be able to complete a scam. But the campaign’s promotional materials fall short of actually promoting or scripting rudeness. So, I thought I'd do it for them:

“The next time you’re contacted by a telemarketer, just say “!!#$%!!#!!”

I hope I haven’t offended.

For more on mass marketing fraud, see Mass Marketing Fraud.

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.

Undue Influence: There Oughta be a Law (or Two)

When undue influence was “discovered” as a significant factor in elder abuse a decade ago, it immediately struck a chord with advocates and service providers who'd been seeing the phenomenon for years. They may not have had a term for it, but they knew it when they saw it.

But translating undue influence into law, or more specifically, translating it into an infraction of the law, hasn’t been easy. See Undue Influence is Not a Crime (Nov 20, 06), Postscript on Undue Influence is Not a Crime (Dec 4, 06), PPS on Undue Influence: The Civil Side (Dec 14, 06), and Long Distance Undue Influence (June 20, 06). For links to these postings and more on undue influence, visit my Web site at Prevent Elder Abuse.

This year, advocates in California are tackling the problem full force. The California District Attorney's Association has teamed up with California Senator Bob Margett to broaden the definition of financial abuse used in California’s penal code (PC 368) to include “undue influence upon an elder or dependent adult for financial gain.”
 The bill, SB 1259, came largely in response to the criminal case against Ronald Brock that I described in “Elder Abuse is Not A Crime.” In that landmark case, Brock was convicted of theft based on undue influence, but an appeals court overturned the conviction on that grounds that obtaining money by consent is only theft if the defendant uses coercion or misrepresentation and that the judge had erred in allowing a conviction for conduct that was "little more than overpersuasion." See SB 1259.

SB 1140, sponsored by State Senator Darrell Steinberg, would amend sections of the state’s Welfare and Institutions code pertaining to financial abuse to allow elders to recover property (and lawyers’ fees) when property is taken from them through undue influence or when they lack full mental capacity. See SB 1140.

Drawing the lines between persuasion, overpersuasion, and unlawful acts clearly isn’t going to be easy. It requires rethinking old assumptions and reevaluating deeply held values. Our society reveres and rewards the ingenuous and entrepreneurial who succeed in anticipating and responding to both real and fabricated needs and desires. Enticement and seduction are a fact of life. But as we come to understand the vulnerabilities engendered by advanced age, we need to balance our commitment to personal freedom and choice with our obligation to protect and defend. In short, we need to define the point at which society has a responsibility to step in and call foul.

Guardianship, Reverse Mortgage Fraud, and Politicians Posing as Health Care Workers

Advocacy Update
There’s lots happening on the advocacy front, and I’m a bit behind. But here goes:

Guardianship Reform: The National Scene
Last week, Senator Gordon H. Smith (R-OR) released Guardianship for the Elderly: Protecting the Rights and Welfare of Seniors with Reduced Capacity, a report on the role of the feds in overseeing the guardianship system. The report was based on responses to a call for papers Smith issued following a 2006 Senate Special Committee on Aging hearing. The hearing had followed a flurry of negative reports about guardianship, including the findings of a GAO report and a scathing 2005 Los Angeles Times series that exposed blatant abuses by professional conservators (California parlance for guardians) and negligence by courts in monitoring them. Widespread media coverage about philanthropist and socialite Brooke Astor, whose son was charged with looting her estate while acting as her guardian, had also brought additional attention to the problem.

According to the report, federal actions that warrant consideration include uniform federal standards for guardianship and an enforcement mechanism; a national guardianship office, possibly administered through the Department of Justice, to promote best practices, training standards, data collection, and oversight; increased coordination among the multiple government agencies that are involved including the Social Security Administration, Department of Justice, and Department of Health and Human Services; an infusion of federal funds to boost local court supervision programs; a national system of data collection and research; improved regulation and oversight of private and professional guardianship entities; and greater attention to guaranteeing the safety and due process rights of incapacitated seniors under guardianship. Specific areas of need include ensuring the right to counsel, independent medical and physical examinations, and the right to petition the court for guardianship termination. A full copy of the report is available at www.aging.senate.gov/minority or by calling 202-228-5862.

Smith’s report was released in conjunction with the publication of Guarding the Guardians: Promising Practices for Court Monitoring by Naomi Karp of the AARP Public Policy Institute and Erica Wood of the ABA’s Commission on Law and Aging. This resource for courts and policy-makers is a follow-up to Guardianship Monitoring: A National Survey of Court Practices, a 2006 report by Karp and Wood. The first report highlighted the results of a 2005 national survey of judges, court managers, guardians, elder law attorneys, and advocates. It called for better reporting by guardians (including prospective, or forward-looking, plans to show how they will manage the affairs of those they supervise); improved verification of reports; the use of technology for greater efficiency; and more resources devoted to monitoring. Part 1 is available at AARP's Web site.

The follow-up report (also available online on AARP's Web site), showcases specific practices, examples of which include:

• Ramsey County, MN has an e-filing system, which not only allows guardians to file their annual accountings online, but has built-in red flags to identify irregularities that bear further investigation

• Maricopa County, AZ uses fiduciary arrest warrants when necessary. Arizona’s guardianship certification program also performs intensive random audits of professional guardians.

• Suffolk County, NY has adopted a “problem-solving restorative jurisprudence approach to guardianship,” which includes mediation, a resource coordinator, volunteer advocates and the ability to integrate all pending cases involving the incapacitated person, including divorces, evictions and other matters.

The follow-up report even provides tips on how to spot “guardianships going bad"; examples of how courts handle specific situations like guardians’ failure to file reports; and ideas for how to raise and leverage funds for court monitoring.

According to Naomi Karp, “Their innovations show that effective oversight is more a matter of will than of money. It's not really rocket science and it's not really expensive. In all cases, there's at least one person who's a real visionary who is dedicated to getting it done."

And, In California:
As described in an earlier post (see Feel Good Laws or Real Reform?), the LA Times expose’ on private professional conservators prompted California last year to enact a package of laws to reform guardianship. Although courts were promised new funds to implement the provisions, with some having already hired additional staff to do so, the promised funding never came. Courts are doing their best to make due in the meantime and are hopeful that the state will honor its commitment next year.

Reverse Mortgages
In an email with the subject line “Mr. Cole Goes to Washington,” Shawna Reeves Nourzaie of the Fair Lending Project for Seniors of the Council on Aging Silicon Valley alerted me to the December 12 Senate Special Committee on Aging hearing “Reverse Mortgages: Polishing not Tarnishing the Golden Years.” Mr. Cole is our very own Prescott Cole of the San Francisco-based California Advocates for Nursing Home Reform, who was the lead witness. The hearing was prompted at least in part by lawsuits filed against "reverse mortgage specialist" company Financial Freedom. Although invited, Financial Freedom was not represented.

In a bizarre twist, Financial Freedom has since announced that the company did not make the loan that was the subject of damning testimony by panel witness Carol Anthony, who claimed that the company had wheedled her elderly mother into an expensive and inappropriate loan. Rather, Financial Freedom reps claim that the company simply purchased the loan after it had been closed by the original lender, Senior Freedom Corporation Funding. They blamed the confusion on the similarity of the names. But, as Shawna points out, even so, one might wonder what responsibility loan purchasers have in making sure that the loans they buy were not procured by fraud.

Also during the hearing, AARP unveiled its in-depth study of the Reverse Mortgage industry, highlighting many of the sales practice abuses directed towards seniors. You can view a webcast of the hearing, which was chaired by Committee Member, Claire McCaskill (D-MO), at http://aging.senate.gov/

Candidates Learn from Health Care Workers
Congressional and presidential hopefuls got a chance to experience first hand (well, sort of) what life is like for home care workers, nursing home aides, and other health workers as part of the “Walk a Day in My Shoes” campaign sponsored by the Service Employees International Union (SEIU). The campaign is “about making sure politicians truly know what the real world is like for the rest of us.” You can watch Hillary walk in the shoes of a registered nurse, Obama walk in the shoes of a home care worker, and Edwards walk in the shoes of a nursing home worker. Also shown walking the halls of a nursing home is U.S. Senate candidate Al Franken, who’s career I’ve been following since well before his Saturday Night Live days when my sister and I took a filmmaking class with him in the 60s. Footage of the candidates’ visits is available at SEIU’s Web site. (The Nerenberg/Franken productions were lost or destroyed by our mom.)

Looking for a Stocking Stuffer?
Springer Publishing has agreed to provide my blog and Web site readers with a 30% discount on my book, Elder Abuse Prevention: Emerging Issues and Promising Strategies, from tomorrow through the end of the year. They tell me the book will be released "any second." To get the discount, click on the icon that appears on the right or from my Web site at http://lisanerenberg.com/.

Happy Holidays
At the rate I’m going, this may be my last posting for 2007. So, Happy New Year to all and keep up the terrific work!

Fighting Back Against Financial Crime

Sometimes it seems like we're fighting a losing battle against increasingly sophisticated fraud perps. But there have been some inroads, and I thought it was time for some good news.

My hometown paper, the St. Paul Pioneer Press, recently reported on a lawsuit filed by Minnesota Attorney General Lori Swanson against the giant international life insurance company Allianz for pressuring seniors into buying deferred annuities. Although good for some people, deferred annuities are bad for seniors who can't afford to have their money tied up or who are likely to die before the maturity date. In October, Allianz and the state settled, allowing more than 7,000 Minnesotans to get their money back for annuities they'd purchased, plus interest in some cases. Swanson has also filed a lawsuit against American Family Legal Plan and Heritage Marketing and Insurance Services for selling elderly people living trusts and annuities that don't make financial sense. According to Swanson, "They scare the begeezers out of senior citizens" by suggesting they won't be able to pass their savings on to relatives without giant penalties unless they invest their money in certain ways. Heritage agents are also trained to discourage elderly prospective customers from consulting with their children or financial advisers about the policies they're considering. For more, see Watchdog.

At the national level:

In September, the Securities and Exchange Commission issued a report on "free lunch" investment seminars for seniors based on a year-long study it conducted in collaboration with the Financial Industry Regulatory Authority (FINRA) and state securities regulators. Among the key findings was that 100% of the "seminars" reviewed were actually sales presentations, despite the fact that many were advertised as educational workshops or that participants had been assured that nothing would be sold. In fact, attendees were encouraged to open new accounts and buy investment products, if not at the seminars themselves, then during follow-up contacts. For more, see SEC.

And recently, the National Adult Protective Services Association (NAPSA) joined forces with California Advocates for Nursing Home Reform (CANHR) and the Women’s Institute for a Secure Retirement (WISER) to create a new coalition, CEASE, to address annuity fraud, trust mills, and other forms of financial abuse (CEASE is a rough acronym for Coalition to End Elder Financial Abuse). CANHR has been sponsoring groundbreaking consumer protection legislation for years, and WISER develops information on financial issues. In recent testimony before the Senate Special Committee on Aging, CANHR attorney Prescott Cole cited a 92-year-old client who was talked into purchasing a $650,000 annuity that doesn’t mature until the year 2063.

Beginning on November 1, the Experian credit bureau will join with Trans Union in offering free credit freezes to victims of identity theft. For other customers, it will cost $10 to implement the freezes and $10 to temporarily or permanently remove them, unless state law mandates otherwise. The service is available to consumers in all 50 states and the District of Columbia

Last month, CBC produced an excellent program on Canadian scams against elders:

In Canadian Senior Scams, reporter Armen Keteyian takes viewers inside a Montreal "boiler room" to show how con artists operate. He also interviews Yve LeBlanc of the Royal Canadian Mounted Police; Doug Shadel who runs a call center in Seattle that warns seniors they've been target, and Zack, a working con artist.

The follow-up segment, "On the Sucker List," focuses on how scammers get hold of elders' names in the first place. In it, Zack assures us that those who sell lists with names like "Elderly Opportunity Seekers" and "Suffering Seniors" know exactly what they're being used for (for more on "information trafficking," see Predators and Politics). Also featured is U.S. Postal Inspector Timothy Mahoney who tracks down suppliers of "leads."

And finally, last month I updated my Web site to include a fact sheet on "mass marketing fraud," a term used to describe the various techniques that perpetrators use to target and defraud people using the phone, Internet, and mail. See Mass Marketing Fraud.

Elder Abuse for Profit

In a chilling article that ran on September 23, The New York Times analyzed trends in patient care in nursing homes purchased by private investment groups. Using Centers for Medicare and Medicaid Services (CMS) data, The Times looked at more than 1,200 nursing homes purchased by large private investment groups since 2000 and more than 14,000 other homes; they compared the investor-owned homes against national averages in multiple categories, including complaints received by regulators, health and safety violations cited by regulators, fines levied by state and federal authorities, and the performance of homes as reported in the Minimum Data Set Repository and the Online Survey, Certification and Reporting database.

Not surprisingly, they found that investors' profits came at the expense of patient care.

The article focused on Habana Health Care Center, a 150-bed nursing home in Tampa, Florida, which was struggling when a group of large private investment firms purchased it and 48 other homes in 2002. According to the article:

The facility’s managers quickly cut costs. Within months, the number of clinical registered nurses at the home was half what it had been a year earlier, records collected by the Centers for Medicare and Medicaid Services, indicate. Budgets for nursing supplies, resident activities and other services also fell, according to Florida’s Agency for Health Care Administration. The investors and operators were soon earning millions of dollars a year from their 49 homes.

Residents fared less well. Over three years, 15 at Habana died from what their families contend was negligent care in lawsuits filed in state court. Regulators repeatedly warned the home that staff levels were below mandatory minimums. When regulators visited, they found malfunctioning fire doors, unhygienic kitchens and a resident using a leg brace that was broken.

The article also focuses on how private investment companies have made it nearly impossible for families to sue them or for regulators to levy fines by creating complicated corporate structures that obscure who controls the homes. For example, when Vivian Hewitt sued Habana in 2002 after her mother died from a large bedsore that became infected by feces, she found that its owners and managers had spread control of the home among 15 companies and five layers of firms. As a result, Mrs. Hewitt’s lawyer has been unable to establish definitively who was responsible for her mother’s care.

Investors claim that the corporate structures are common in other businesses and have helped them revive an industry that was on the brink of widespread bankruptcy. According to Arnold M. Whitman, a principal with Formation Properties I, the fund that bought Habana in 2002, "Lawyers were convincing nursing home residents to sue over almost anything…Homes were closing because of ballooning litigation costs…We should be recognized for supporting this industry when almost everyone else was running away.”

Other excerpts:

At facilities owned by private investment firms, residents on average have fared more poorly than occupants of other homes in common problems like depression, loss of mobility and loss of ability to dress and bathe themselves, according to data collected by the Centers for Medicare and Medicaid Services.

The typical nursing home acquired by a large investment company before 2006 scored worse than national rates in 12 of 14 indicators that regulators use to track ailments of long-term residents. Those ailments include bedsores and easily preventable infections, as well as the need to be restrained. Before they were acquired by private investors, many of those homes scored at or above national averages in similar measurements.

The Byzantine structures established at homes owned by private investment firms also make it harder for regulators to know if one company is responsible for multiple centers. And the structures help managers bypass rules that require them to report when they, in effect, pay themselves from programs like Medicare and Medicaid.

The Times’s analysis of records collected by the Centers for Medicare and Medicaid Services reveals that at 60 percent of homes bought by large private equity groups from 2000 to 2006, managers have cut the number of clinical registered nurses, sometimes far below levels required by law. (At 19 percent of those homes, staffing has remained relatively constant, though often below national averages. At 21 percent, staffing rose significantly, though even those homes were typically below national averages.) During that period, staffing at many of the nation’s other homes has fallen much less or grown.

To see the full article, see At Many Homes, More Profit and Less Nursing.

BTW, Charles Duhigg, the reporter who wrote the piece, is now working on an article on dynamics within families that may lead to, or be perceived as, financial abuse. His request came to Sharon Merriman-Nai, Project Director of the National Center on Elder Abuse (NCEA) Co-Management, who posted it on NCEA's list serve. Mr. Duhigg is also asking for suggestions for related topics. He can be reached at duhigg@nytimes.com

Keeping up With Financial Predators

While interviewing Shawna Reeves Nourzaie for another recent posting, I asked her what affect the sub-prime crash has had on her job. Shawna is a social worker at the Fair Lending Project for Seniors of the Council on Aging Silicon Valley. She organizes community education and outreach events about predatory lending and hooks victims up to social and legal services. Up until now, her passion has been on steering folks away from risky loans. Here's what she had to say:

Our educational focus has needed to shift radically. Teaching seniors to avoid risky loan products that no longer exist on the market doesn’t make a whole lot of sense. Our main focus now is identifying seniors who have already been victimized and helping them bring legal claims against predatory lenders and brokers. We also provide them with social work services and help them locate reasonable fixed rate loan products that will allow them to stay in their homes—not an easy task!

We're also providing much more education to seniors about reverse mortgages in light of all the marketing that is targeting them these days. My hunch is that when the credit crunch hit and lenders pulled their riskier sub-prime products, many mortgage brokers shifted their focus to the senior market and reverse mortgages. For some seniors, especially those in ill-health who might need nursing homes soon, the reverse mortgage is a terrible choice because of the high upfront costs and because the loans come due when the homeowners are out of their homes for 12 months.

For other seniors though, including victims of predatory lending who now have monthly loan payments that they cannot afford, the reverse mortgage can be the lifesaver that allows them to stay in the home. They have become the only loan product available to many seniors on fixed incomes. The risker products they were qualifying for just two months ago to get cash out are no longer available, leaving the reverse mortgage as the last product standing.

Keeping up with the various and sundry schemes that profiteers and predators use to exploit the elderly isn't easy. Just when you think you understand one, it's passé.

By the way, if you haven't seen Off the Hook Again: Understanding Why the Elderly Are Victimized by Economic Fraud Crimes, released last year, I recommend you do. Produced by the Consumer Fraud Research Group for WISE Senior Services and the National Association of Securities Dealers (which has since changed its name to the Financial Industry Regulatory Authority, or FINRA), the report describes the findings of a study aimed at understanding 1) what kinds of persuasion tactics cons use in investment and lottery scams and 2) How victims differ from non-victims. The researchers' hope is that identifying specific psychological persuasion tactics is the first step in alerting potential victims. They're also hoping that their work will lead to the development of instruments to measure vulnerability to various frauds.

What they found is that perps tailor their pitches to meet the "psychological needs" of potential senior victims. Perpetrators of investment fraud, for example, may befriend their victims, scare or intimidate them, or vary their techniques. As for who's vulnerable, in the case of investment fraud victims, the results were surprising. Victims were found to be more financially literate than non-victims, which goes against the conventional wisdom that it's naiveté or lack of experience that renders elders vulnerable to financial abuse. Victims were also:

More likely to listen to sales pitches;

More likely to rely on their own experience and knowledge when making investment decisions;

More likely to experience difficulties from negative life events than non-victims; and

More optimistic about the future.

For the full report, click on Off the Hook Again

County Caregiver Screening Program Faces Challenges

An article in yesterday's Napa Valley Register provides an update on a project I've been watching for many months. Lacking confidence that the state was going to solve the problem of preventing dangerous criminals from becoming caregivers and working in frail elders' homes, advocates in Napa County California, including Betty Rhodes of the county's Commission on Aging and Terri Restelli-Deits, planner with the Area Agency on Aging, launched a campaign to urge the county and its cities to require prospective caregivers to obtain permits. To get permits, prospective workers would be fingerprinted for FBI background checks, have their employment history for the last five years checked, and demonstrate, through Department of Motor Vehicles records, that they have good driving records.

There's a lot of support for the proposed program and little opposition. In fact, according to the article, "the list of people invested in the success of the program is a virtual 'Who’s Who' of law enforcement." It includes District Attorney Gary Lieberstein, who, in an earlier Register article, was quoted as saying he'd heard of parole officers telling convicts that home caregiving was a promising field for gainful employment. “I don’t think they would suggest they do it because they wanted to see someone ripped off,” he said. “I’d imagine it’s because parolees can get the work without a lot of background checking.” Deputy District Attorney Bryan Tong, who runs an elder abuse unit in the DA's office, estimates that about one-third of all the financial elder abuse cases he sees involve home caregivers.

The County appointed staff to help develop the program and yesterday's article reported on some of the obstacles and issues they've identified regarding the program, which include:

The possibility that it would require an act of the Legislature and the state Attorney General before FBI records can be released to the agency Napa County might set up.

The risk Napa County could be sued if a screened caregiver abuses an elder, especially if the system — for whatever reason — failed to flag a caregiver with a significant criminal past.

Problems with delays in getting fingerprint background check results, which could be a month long, as the county In Home Support Services has experienced. In that case, caregivers might not be able to work when they want to, encouraging them to operate underground.

The need for cooperation from local cities if the county passed an ordinance that would affect businesses within city jurisdictions.

Questions about how to enforce the law.

To the last item, I would add the need to develop specific criteria for disqualifying workers (e.g. types of crimes that would disqualify workers, length of time since crimes were committed, etc.) as well as mitigating factors that could affect decisions such as evidence of rehabilitation or restitution. While deciding who should and should not work with vulnerable populations may seem like a no-brainer, states and agencies have run up against myriad problems, some of which I've described in earlier posts. For example, When New Jersey passed a law disqualifying workers with certain convictions from working, over 400 current employees, many of whom had worked for years and were doing a good job, were found to have committed disqualifying crimes. So the state had to figure out how to keep them. Others have reported instances in which disqualified workers have challenged decisions to withhold employment, which has raised the call for scientific evidence linking past criminal conduct to heightened risk. For more on these issues, see Elder Abuse by Paid Caregivers on my Web site.

In the meantime, as Napa continues it struggle to iron out the issues, California and several other states are developing legislation.

Senior Centers as Financial Abusers

Can a senior center incur civil liability for elder financial abuse if it permits its facility to be used by a presenter who then financially abuses attendees?

The answer may be yes, at least in California, according to San Francisco attorney Steven Riess, who contends that:

“By permitting an abuser to use its facilities for a presentation, a senior center is increasingly likely to be named as a co-defendant in an elder financial abuse lawsuit based upon direct, vicarious, and joint enterprise theories of liability.”

A memorandum containing his supporting legal analysis was recently sent to city attorneys in several Santa Clara County cities, shortly after which they instructed local centers to deny access to suspect commercial enterprises. The Riess memo was also cited by the Parks and Recreation Department of the City of Red Bluff in adopting new guidelines for the use of public centers by commercial enterprises.

The memo describes how senior centers have unknowingly facilitated abusers in their efforts to exploit elders. Trust mills and unscrupulous annuity agents, reverse-mortgage brokers, and others claim that their “free seminars” provide seniors with valuable educational information and materials relating to estate planning, Medi-Cal eligibility, and other topics.

According to Riess, under California's definition of elder financial abuse, an organization that facilitates the financial exploitation of an elder could arguably be liable for damages and attorneys' fees because the law protecting elders appears to apply to organizations that merely enable the exploitation. Although the theories are untested, senior centers remain likely targets of suits.

None of the Santa Clara centers are admitting that liability concerns are what motivated them to take action. And, other factors may have had a role. Shawna Reeves Nourzaie, a social worker with the Fair Lending Project for Seniors at the Council on Aging of Silicon Valley, who has alerted several centers to Riess' memo, also makes sure they know about a class action lawsuit filed by California Advocates for Nursing Home Reform and the Institute on Aging, which alleges that several companies used "free" living trust seminars to improperly learn about seniors' finances and then sent agents to the seniors' homes selling annuities. Shawna also comes armed with a 2003 alert from former Attorney General Bill Lockyer warning seniors against unscrupulous sales agents who pose as trust advisers or senior estate planners. The warning also exposed how the agents work with assisted living centers, churches, and other trusted entities to give themselves a cloak of legitimacy.

This is definitely one to watch!

In Memory of Phil Lucas and More

I recently learned that Phil Lucas, director of the wonderful film Restoring the Sacred Circle, died in February. The news came from Dave Baldridge, president of the National Indian Project Center, a cohort of mine, along with advocate Bill Benson, on a project on elder abuse in Indian Country for the National Center on Elder Abuse. Other Phil fans include Aileen Kaye, who worked closely with him on the film, which was produced by the Oregon Department of Human Services. I had the privilege of standing in for them during a screening at the 2002 American Indian Film Festival in San Francisco after the film won the Best Public Service Award. A Choctaw, Phil worked on over 107 films as a director, writer, and producer; and won numerous awards, including an Emmy. For more on his remarkable legacy, click here.

Sage Publications just released the third edition of Victims of Crime, which includes a chapter on victims of financial crime, which Debbie Deem, Richard Titus, and I co-authored. Debbie is a victim specialist with the FBI and has taught me everything I know about mass marketing fraud. Richard, who’s done groundbreaking research on financial crimes for the U.S. Department of Justice (he retired in 2004), spent a summer during his undergraduate years working as a con artist and got an insiders's view of how financial criminals search out victim vulnerabilities and exploit them. For more on the book, see Sage's website.

Debbie and I will be co-leading a workshop on mass marketing fraud at the upcoming Weaving the Safety Net Conference sponsored by Legal Assistance for Seniors in Oakland. We’re delighted that there’s a whole track devoted to the sorely overlooked issue of restitution, which includes sessions by victim-turned-advocate Marty Plone; Bob Quigley, who served as an “asset investigator” for a cutting edge (and unfortunately, now defunct) federal restitution recovery pilot project in the U.S. Attorney’s Office in San Francisco; and Steve Dippert who runs the San Jose Restitution Court project. Undue influence expert Bennett Blum, Lisa Gibbs from UCI’s elder abuse forensics center, and I are doing plenary sessions. For more information, click here.

NIJ Funds Study on Financial Abuse

The National Institute of Justice recently awarded a 2-year, $300,000 grant to University of Virginia law professor Thomas Hafemeister and psychiatry professor Shelly Jackson to study financial elder abuse in Virginia. Hafemeister, whose “Financial Abuse of the Elderly in Domestic Settings” appeared as an appendix in the National Research Council’s Elder Mistreatment: Abuse Neglect, and Exploitation in an Aging America, is also the director of legal studies at UV’s Institute of Law, Psychiatry, and Public Policy.

Working with the state’s APS program, investigators will interview elders who have recently been victimized, their caseworkers, and their caregivers about what happened and why, the state’s response, and how effective those interviewed thought the response was. The study aims to shed light on how financial exploitation compares to other forms of abuse and to get different parties’ perspectives on cases. Interviewers will include students from the law school and grad students in psychology and counseling.

Thanks to Readers for the Following:

Special thanks to researcher Ola Barnett for her detailed and thoughtful response to my January 7, 07 post, The "De-feminization" of domestic violence and what it means for elder abuse. Ola is Distinguished Professor Emerita of Psychology at Pepperdine University and the co-author of Sage Publication’s Family Violence Across the Lifespan: An Introduction. To read it, use the “blog archive” on the right to retrieve the original post and scroll down to comments.

Thanks too to Elizabeth Podnieks, Assistant Professor of English at Ryerson University, for alerting me to the July-August bulletin of the International Committee for the Prevention of Elder Abuse (INPEA), which describes the first World Elder Abuse Awareness Day. Events ranged from balloon races in the UK, to quilt-making in Canada, to wearing white socks in South Africa. The bulletin describes other events in Uganda, Sweden, Gambia, Nigeria, Israel, Albania, Korea, Ireland, India, and Cameroon, which included theatrical performances, proclamations, and educational events. The bulletin is on INPEA’s website at http://www.inpea.net/index.html

And to Laura Ivkovich, Program Specialist for the Office for Victims of Crime who alerted me to the “Enhanced Training and Services to End Violence and Abuse of Women Later in Life Program. The application deadline is February 7, 2007. For more information, see http://www.usdoj.gov/ovw/docs/enhanced121806.pdf

And to Joan Allen, coordinator of the Ventura County Financial Abuse Specialist Team, for sending "Fighting Financial Fraud," a new video the team produced with funding from the Archstone Foundation. Four scenarios are presented in which elders fall prey to identity theft, an investment scam, a door-to-door sales scam, and telemarketing fraud. In each case, victims are given a “second chance”; the scenes are replayed and the victims avoid abuse by taking simple precautions. The CD is available for viewing at www.seniorconcerns.org

PPS on Undue Influence: The Civil Side

For the season of giving...
Caregivers in California who receive last-minute bequests from those they care for are presumed to have exercised undue influence, even if they were close friends. That’s because of a controversial 1993 law that was recently upheld on appeal (Bernard v. Foley).

Probate Code Section 21350 was enacted following a scandal that involved an estate-planning attorney who named himself and his family as fiduciaries for, and beneficiaries of, clients’ estates. The law lists categories of people who can't inherit unless they can prove that transfers weren't the product of fraud, menace, duress, or undue influence. It includes those who draft wills and trusts and law firms, lawyers, and employees of law firms associated with them. And caregivers.

The suit involved 97-year-old Carmel Bosco, a widow who died childless in 2001, leaving an estate of around $448,000. Two months earlier, she’d moved into the home of an old friend, Ann Erman and Erman’s boyfriend, James Foley. Mrs. Bosco made the move at the urging of Erman, who had previously been married to Bosco’s nephew, Arthur Erman.

Erman and Foley took care of Bosco during the last months of her life, tending her bedsores, administering morphine, preparing meals, and helping to change her diapers. They went through her mail and handled her financial and investment affairs. During that time, Bosco amended her living trust several times, each time giving more to the couple– she'd originally left her estate to family members. A few days before she died, she changed it again, naming Foley and Erman each as 50% beneficiaries

Bosco's family, including nephew Arthur, sued, claiming that Foley and Erman had exerted undue influence over Mrs. Bosco, who was gravely ill and heavily sedated when she changed the trust the last time. The case got down to whether Foley and Erman were care custodians, and therefore, covered under the law. Foley claimed that he and Erman were simply “performing acts of kindness on a purely volunteer basis as good friends often do for others.” The trial court agreed.

But the family appealed, the court of appeal reversed, and the California Supreme Court agreed with the appeals court, writing that “a caregiver may be a personal friend, and in fact, personal friends are uniquely in a position to unduly influence the elderly for whom they care.” Chief Justice George agreed with the majority but suggested that the law be amended to differentiate between long–term caregivers and those who provide care for short periods of time.

In response, in September, the California Assembly passed AB 2034, sponsored by the State Bar Trusts & Estates Section, which directs the California law Revision Commission to study Section 21350. The Commission is expected to begin looking at the issue in March.

Undue Influence is Not a Crime

So said a California appeals court last month in ruling on the case of a 78-year-old San Mateo man who wrote over $660,000 in checks to a friend and helper.

Norman Roussey, who had an "anxiety disorder," lived with his mother until her death a decade ago. Roussey met Ronald Brock, a law school graduate who worked for his lawyer, while he was settling his mother's estate. Brock became his companion, driver and helper. He saw Rossey through anxiety attacks.

He also wrote checks to himself from Roussey's checkbook, followed him around the house pestering him to sign until he did, and told him not to tell anyone. He also kept money that Roussey had given him to prepare his tax returns, make mortgage payments, and invest in real estate. As a result, Roussey ended up losing his home and much of his inheritance. When Brock got Roussey to cancel an annuity he had written to benefit a niece, she contacted APS and the case was reported to the police. Brock was charged with theft.

The case went to court in 2004. The prosecutor, Melissa McKowan, argued that Brock had used undue influence to manipulate Roussey. It was clearly a test case. Undue influence for profit has been the grounds for civil actions like overturning wills but there’s no existing law that says you can commit theft by undue influence. After conflicting testimony by psychiatric witnesses about Roussey's mental state, Superior Court Judge Joseph Bergeron told jurors they could convict Brock of theft by undue influence if they concluded that he’d taken unfair advantage of Roussey's "weakness of mind.” They did, and Brock was sentenced to five years in prison and ordered to return the money.

But in last month’s ruling, the appeals court overturned the theft conviction on that grounds that obtaining money by consent is only theft if the defendant uses coercion or misrepresentation and that Judge Bergeron erred in allowing a conviction for conduct that was "little more than overpersuasion." Brock had already completed his prison sentence with time off for good behavior but hasn’t repaid the money. Roussey will seek repayment in a civil suit.

San Diego Prosecutor Paul Greenwood, who sees cases like these often, isn’t disappointed. “It’s a major step forward that we even have a court of appeal decision on this theory of theft. Ten years ago, this would have been unimaginable. Undue influence is an area that remains undefined, and I’m thankful that we have prosecutors in California like Melissa who are gutsy enough to push the envelope and take a case like this to trial. It shows that California is ready to accept and embrace the concept that undue influence is criminal and needs to be addressed in the criminal arena. The decision actually provides an impetus for a change in the law, which, hopefully, will follow.

Meditations on Mediation

My old friend Fred Hertz is arguably the nation’s leading expert on “gay divorce.” A lawyer, he represents partners in break-ups and has written a book on the subject, been interviewed on NPR, appeared on Oprah, and is frequently quoted in the press.

So, I was more than a little surprised when he told me recently that he doesn’t want to litigate cases anymore but instead, use his skills to help couples stay out of court. After spending years handling mostly property ownership disputes, he’s concluded that conflicts involving people in personal relationships are better resolved through mediation than the adversarial process. Even in “successful” cases, where his clients prevail, they often come out feeling bitter and disappointed.

I’ve been interested in the use of mediation in elder abuse cases for years despite the bad rap it’s had in our field. The negative bias is a spillover from domestic violence theory, which holds that power differences between women, the victims in most cases, and their male batterers make mediation inherently unfair and dangerous. That’s because of institutionalized inequalities and barriers to justice, resources and protection. But most elder abuse cases don’t involve societal injustices. When you take that factor out of the equation, what's left are the inequalities and unfair advantages that exist between individuals, which aren’t nearly as insurmountable.

Fred’s cases often involve extreme imbalances of power with respect to personality, money or class. “When I ask clients why they contributed to the purchase of homes but never went on title or why they contributed more than their share, they often tell me that’s how their partners said it was going to be and they were too intimidated to refuse." Sounds to me like a lot of the elder abuse cases we see.

According to him, mediation is often the best way to resolve these imbalances, especially for the weaker person who has the most to gain. As intimidating as it can be, it’s much safer and cheaper than litigation. He cautions, however, that whenever serious power imbalances exist, mediation has to be structured in a way that protects weaker parties, which usually means that they have advocates present, or at a minimum, mediators who are willing to take on this challenge. “Traditionally, mediation hasn’t been used in cases that involve any sort of intimidation or fear on one party's part, so mediators need special training and different protocols.”

Reticence toward mediation extends beyond the elder abuse network into the broader aging services community. That's according to the Center for Social Gerontology of Ann Arbor, Michigan, which has been pioneering the use of mediation as an alternative to guardianship since the early 1990s. In 2001, they released a four-state study, which found that mediation was effective in helping disputing parties in guardianship cases reach agreements in three-quarters of cases. They’ve also explored the use of mediation in elder/family caregiver conflicts. Despite the promise it holds, mediation has been slow to catch on, which prompted the Center to form the National Elder Mediation Network earlier this year.

Just as we can’t apply one-size-fit-all interventions to the widely divergent cases we see, neither can we afford to reject interventions wholesale. Instead, we should be exploring when mediation is appropriate and when it’s not. It would be a shame to let misplaced biases get in the way.

Elder ID Theft: Should We be Concerned?

Traditionally, those of us in the field of elder abuse prevention haven’t dealt with “consumer” crimes like telemarketing scams or identity theft. There was no evidence to suggest that elders were targeted, and some studies even suggested that elders were less likely than younger people to be victimized. Besides, our focus was on abuse by family members and acquaintances.

It’s true that only about 10% of victims of ID theft are elderly, but when you consider that over 9 million people reported ID theft last year, we’re talking huge numbers.

Like many people, I used to think of ID theft as a high tech crime committed over the Internet. But according to a report by the Better Business Bureau and Javelin Strategy & Research as an update of the Federal Trade Commission's 2003 Identity Theft Survey Report, “Fully one-fourth of the respondents who had been the victim of a financial fraud said they knew who had committed the crime, and in half those instances the perpetrator turned out to be a friend, relative, or neighbor.” The report further states that most thefts are committed the old fashioned way; the most frequently reported source of information used to commit fraud was a lost or stolen wallet or checkbook.

According to the Identity Theft Resource Center, there are 4 types of ID theft:

Financial ID Theft: Thieves use victims’ names, Social Security numbers, and other identifying information to apply for telephone service, credit cards or loans, buy merchandise, or lease cars or apartments. /strong>

Criminal ID Theft: Imposters provide victims’ information instead of their own when stopped by law enforcement. Eventually, when warrants for arrest are issued, they are in the names of the victims.

Identity Cloning: Imposters use victims’ information to establish new live. This form of ID theft is often committed by undocumented immigrants, criminals avoiding warrants, people hiding from abusive situations, or people who want to leave behind poor work and financial histories.

Business or Commercial Identity Theft: Businesses may also be victims. Typically, perpetrators get credit cards or checking accounts in the names of businesses, which find out when unhappy suppliers send collection notices or their business rating score is affected.

Identity theft is sometimes referred to as an “enabling crime” in that thieves use stolen identities to commit other crimes, including credit card fraud, immigration fraud, Internet scams, and even terrorism. Some thieves take out home equity loans in their victims’ names.

The following “ripped from the headlines” cases serve as examples:

A 100-year-old Tamarac (Florida) man's self-employed caregiver was accused of stealing his identity using his personal identification to open cell phone and cable TV accounts. The caregiver was charged with one count of elder exploitation and one count of using another person's ID without consent.

A home care provider was arrested on charges of elder abuse and burglary for holding an elderly man captive and striking him in the head and body with his own prosthetic leg. The suspect had been working for the man for the last six months under the name of her sister, a certified home care provider. She used her sister's identity to get the position. The suspect had a previous conviction and served jail time under her sister’s name. Specific charges included felony residential burglary, felony elder abuse, false imprisonment and preventing a victim from calling 911 by cutting the phone line.

A 57-year-old Anchorage, Alaska man pleaded not guilty to 17 counts of various forms of ID theft, from criminal impersonation to fraud. According to charging documents, he used an 82-year-old man’s personal information to obtain seven credit cards, which he used to charge $34,000 worth of merchandise.

In Tallahassee, a home health aide employed at an assisted living facility stole the identity of an 89-year-old resident and used the information to run up over $3,500 in fraudulent credit card charges for jewelry, furniture and clothing. She also wrote checks to herself from a bank account belonging to the victim and diverted the woman's mail from the facility to her own home. The case was investigated by the Attorney General's Medicaid Fraud Control Unit. The suspect was charged with exploitation of the elderly, criminal use of personal identification, forgery and grand theft.

Linda Foley, Director of the Identity Theft Resource Center, has pointed out some of the reasons why seniors are particularly vulnerable:

Some hospitals and nursing homes use patients' Social Security numbers as identification. Some even print them on patients’ wristbands.

Some seniors carry their Medicare cards with them in case of emergencies. And the cards contain their Social Security numbers.

Seniors are more susceptible to muggers as a result of their frailty. Which is one of the ways thieves get identifying information.

According to the Resource Center, recent widows and their families are at particularly high risk because ID thieves watch the death announcements, steal death certificates, and go on-line to the Social Security Death Index to get information about the recently deceased. Many take advantage of the fact that financial institutions are not always notified immediately of deaths, and so accounts may remain open for up to 10 years.

I shudder to think of all those years that we routinely advised elderly clients to keep their important legal and financial documents together in one place that was easily accessible in case of emergencies. Clearly, that’s not a good idea anymore and we need to re-educate professionals as well as seniors.

The few existing programs on elder ID theft have focused on educating people about ways to protect their identifying information. The truth is that it’s virtually impossible to protect yourself, and the best line of defense is mitigating risk after the fact.

But is it realistic to assume that frail elders can and will do so? One of the ways that ID thieves identify victims is by hacking into databases. Each time there’s a security breach, it’s followed by advice to those affected. For example, in 2004, hackers broke into a database containing the names, addresses, telephone and Social Security numbers, and birth dates of 1.4 million of California’s In-Home Support Service program clients. The California Department of Social Services, which operates the program, subsequently sent out letters to clients encouraging them to get credit reports and check them for irregularities. In May, 2006 the VA announced that information about 26.5 million veterans was compromised when a long time analyst at the agency took home data and his home was burglarized. The stolen data included names, Social Security numbers, dates of birth and numerical disability ratings. The VA also urged all veterans to check their credit reports and place fraud alerts on their credit files. Credit reports are not easy to interpret for any of us, let alone elders with impairments.

Perhaps a more promising approach is one developed by the AG’s office in Michigan, which was among the first to recognize that ID theft was a problem in nursing homes. After investigators discovered that employees, temp workers, and people posing as employees, were using their positions to get information about residents, the office started a program called “It’s MI Identity,” which tracks ID theft in homes and conducts routine credit checks for residents.

Ohio and several other states have enhanced penalties for people who commit ID theft against elders.

Clergy Against Senior Exploitation (CASE) Partnership, a program operated by the Denver District Attorney’s office, works with faith-based partners to develop and present training programs on elder financial exploitation (including identity theft) for clergy and older congregational members. A community advocate works with the program, to help individuals from the faith communities navigate the legal and social services system, and provides written information, including monthly fraud alerts, for use in newsletters and community bulletins.

Good starting points for learning more about identity theft, including ID theft of seniors, are the websites of the Office for Victims of Crime at the U.S.Department of Justice at http://www.ojp.usdoj.gov/ovc/help/it.htm and the Identity Theft Resource Center at http://www.idtheftcenter.org/index.shtml. The Office of Community Oriented Policing Services published an excellent guide for law enforcement, which is available on line at http://www.cops.usdoj.gov/mime/open.pdf?Item=1271