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.

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.

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.

Abuse and Home Care Workers: Giving Policymakers the Lowdown

APS workers, prosecutors, and aging service providers know the frustration well: They discover that a personal care attendant who is being paid with public funds is abusing an elder. When they prevail upon public entities to fire the worker, they’re told “no can do.” When abusive caregivers are hired and supervised by elders, only the elders can fire them.

We also know that seniors sometimes refuse to fire abusive attendants and why. Some are afraid of their workers or of what will happen if they can’t find replacements. Attendants may be threatening them or exercising undue influence. Some seniors don’t realize they’re victims, especially when the workers have been surreptitiously draining bank accounts or transferring property. The elders may have subtle cognitive deficits. Or, they may want to help out troubled family members who need jobs.

I’ve written about the issue often, as well as the related issues of the rising numbers of caregivers who have criminal histories, the need for background checks on caregivers, and the lack of research on which to base screening decisions. I’ve devoted a page on my Web site to the issue. See Elder Abuse by Caregivers.

You’d think that the prospect of government-subsidized abuse would raise more of a hue and cry, but federal policymakers seem largely impassive. The Centers for Medicare & Medicaid Services (CMS) has addressed the need for better screening of nursing home employees, but not independent home care workers. This is despite the fact that in-home workers may spend hours, alone and unsupervised, in the homes of society’s most vulnerable members.

The concept of “self-directed care,” which is intended to empower Medicaid recipients to select, direct, and manage their own services and caregivers, stems from the independent living movement of the 1960s, which was premised on the concept that people with disabilities should have the same civil rights, options, and control over choices in their own lives as others. In recent years, members of the aging and dementia care networks have joined with advocates for the younger disabled in singing the praises of self-directed care, also known as “consumer choice” programs. And the little research that’s been done suggests that people who direct their own care are more satisfied than those who hire workers through licensed agencies. They claim that while abuses may occur, we have a safety net to address them, most notably APS and law enforcement.

Self-directed care is a boon for loving family caregivers who are struggling to manage financially. But in the elder abuse arena, we see the dark side. We see the seniors who hire the wrong caregivers for the wrong reasons. We see others being preyed upon by predators and criminals.

A recent call from the Centers for Medicare & Medicaid Services (CMS) regarding a proposed rule change that would extend the self-directed personal assistance services plan option (Cash and Counseling) may provide an opportunity to raise our concerns:

On January 14, 2008, the Centers for Medicare & Medicaid Services (CMS) announced a proposed rule change that would allow states to adopt a self-directed personal assistance services plan option in their Medicaid programs. This option would permit Medicaid beneficiaries who quality for personal care services to receive a cash allowance that could be used to hire, direct and train their own personal care workers - including qualified family members - rather than receiving home care services from an agency. Many states currently have such options allowed under temporary waivers in their Medicaid programs. This rule change would allow such programs to become permanent state options. The notice of proposed rulemaking was published in the January 18, 2008 issue of the Federal Register. Public comments regarding the proposed rule change are due February 19, 2008. To comment, go to CMS.

The request for comments, which explains the programs and CMS’ goals is over 100 pages long. Buried deep within (beginning on page 52) are the sections on “risk management” (the document does not directly mention potential abuse). The proposed regs require states to provide plans for mitigating risk to consumers, including measures for determining who is eligible to serve as workers and when surrogate, or representative, decision makers should be assigned for those with impairments. Among the issues that CMS is asking for comments on is whether criminal background checks should be required. Seems to me like an excellent opportunity to bring up some of the problems we’ve been struggling with. My own list of recommendations includes:

The Need to:

Strengthen the safety net. As more elders hire persons who are unsupervised by agencies, it has clearly placed greater demands on APS, law enforcement, public guardians, and others. In addition to added resources, these entities need guidance and authority to intervene.

Provide guidance and help to elderly consumers in finding, screening, hiring, and supervising workers. Specifically, consumers need screening processes that identify high risk workers, including but not limited to criminal background checks

Conduct research to identify high-risk situations, including research in how to assess criminal background data

Expand the pool of workers

Clearly the protective service networks have a stake in these plans and in working with the consumer choice network. I urge you to make your ideas and experiences known.

The Year in Elder Abuse Prevention

The journalistic tradition of year-end “news roundups” provides an excellent ruse for cleaning out my file of items I didn’t get to last year. Here are a few:

Under the rubric of “Congratulations and Transitions”:

Marie Theresa Connolly left her post at the Department of Justice to accept a fellowship at the Woodrow Wilson International Center for Scholars, where she’ll be writing a book on elder abuse. She is one of 21 fellows at the “quasi-federal entity with an ongoing mission of linking the worlds of ideas and policy.” I’m thrilled for M.T. who’s been doing groundbreaking work in the field for years. She is an expert in prosecuting abuse in nursing homes and played a leading role in crafting the Elder Justice Act while on loan from DOJ to the Senate Special Committee on Aging. She also spearheaded efforts to advance medical forensics in elder abuse, organizing the first national symposium on the issue and subsequent research. Fortunately, she plans to continue working in the field of elder justice in some capacity when she’s done. Here's what she had to say about the book:

"Despite broad bipartisan support, the Elder Justice Act, first introduced in 2002 and in every Congress since, remains unenacted in the face of chronically insufficient resources, data, infrastructure, expertise, training and public awareness. As a result of this paralysis, my goal is to write an accessible book about elder abuse that will propel change by raising public awareness about the problem through the stories of real people, and serve as a resource and catalyst for policy-makers, researchers, practitioners and the public."

M.T. will be presenting “Emerging from Obscurity: Elder Abuse's Slow Journey Toward the National Agenda” at the Elder Abuse: Medical Abuse and Multidisciplinary Aspects conference sponsored by the University of California, Irvine on February 11-12. You can also hear her talk about the book online at M.T. Connolly

Forensic psychiatrist Bennett Blum was ordained as a rabbi by the Academy for Jewish Religion, an “alternative-minded trans-denominational rabbinical school” in L.A. As an expert in cognitive assessment and undue influence, Bennett often testifies in court cases; it was a case involving a rabbi, in which he was asked to base his legal argument on Jewish sources, that he got to thinking about how ancient rabbinic views on deceptive and manipulative practices applied. He went on to write an article on the subject, which led others to "use Talmudic perspective for formulating their arguments." He is also hoping to start a non-profit organization to foster collaboration between clergy and social service providers. What sets his approach apart from most faith-based programs is that he hopes to engage clergy not simply as gatekeepers to get congregants into the legal and social service systems, but rather, to appeal to them to draw from the wisdom of their traditions to teach, guide, and heal. For more on Bennett, see undue influence.

Family justice center maven and former San Diego District Attorney Casey Gwinn is the new CEO of San Diego’s YWCA. Casey founded San Diego’s Family Justice Center, a “one-stop shop” for domestic violence victims, which serves as the prototype for centers across the U.S., Canada, Mexico, and England and the National/International Family Justice Center Alliance, which provides technical assistance to centers worldwide. A few years ago, the San Diego Center began serving victims of elder abuse with support from the Archstone Foundation. Casey will continue to be involved with the Alliance. In November, he was one of three community leaders awarded The California Wellness Foundation’s 15th annual California Peace Prize.

Heidi Li has replaced Mary Twomey, who, in 2000, replaced me as Director of the San Francisco Consortium for Elder Abuse Prevention (Mary is the new co-director of the Elder Abuse Forensic Center of Orange County). Heidi, a lawyer, has a background in fair housing and anti-predatory lending consumer protection. She was a founding co-director of Housing and Economic Rights Advocates (HERA), a statewide non-profit legal service and advocacy organization, and previously worked as a senior staff attorney for the Fair Housing Law Project (FHLP) where she helped develop San Jose’s predatory lending screening clinic. Her background in law advocacy is sure to be a boon to the Consortium.

And, more on the advocacy front:

The Elder Justice Act continues to languish in Congress, which supporters blame on Congress’ partisanship, its preoccupation with Iraq, the difficulty of passing a stand-alone bill, and the fact that the wide-ranging bill spans multiple committee jurisdictions, which means that multiple leaders have to vet the bill, which takes time. On the bright side, there doesn’t seem to be much opposition. Rahm Emanuel, the bill’s main sponsor in the House, has said he’s hoping to get pieces of the bill included in other legislation. The bill provides for: elder justice offices in the U.S. Departments of Justice and Health and Human Services, $400 million for state adult protective services over four years, creating a federal coordinating committee, forensic centers, and penalties for nursing homes for failure to report crimes quickly. Emanuel's bill also would require the attorney general to develop a plan for prosecuting elder abuse cases and provide grants to assist state and local prosecutors.

Another bill I’m following is the Restitution for Victims of Crime Act of 2007, which would improve the collection of victim restitution and criminal fines (which fund victim services and compensation). The bill was introduced in response to a GAO report that estimated federal criminal debt at $46 billion, most of which is owed to victims. The bill also removes barriers to collecting restitution and helps federal prosecutors prevent criminal defendants from spending or hiding their assets by setting up pre-conviction procedures. The bill has strong support from such prominent and far ranging advocates as the National Center for Victims of Crime, Mothers Against Drunk Driving, and the National Coalition Against Domestic Violence.

The problem of restitution was explored in the recently released Repaying Debts, which was produced by the Council of State Governments. The report assumes a wide-angle view of the problem, emphasizing, for example, that when prisoners are released, many are so far in debt to myriad entities that paying what they owe is virtually impossible. Those responsible for collection, which include probation departments, courts, attorney generals’ offices, and child support enforcement offices, operate at cross purposes, and victims and children are usually at the end of the queue for getting what they’re owed. The report calls for cleaning up the entire system, which includes providing for a single agency to coordinate repayment, set priorities, and create more opportunities for criminals to repay what they owe through work and community service programs. See Repaying Debts.

And in California, several important new laws go into effect this year:

• Cal Senate Bill 611 allows judges to freeze assets in cases of financial abuse until victims’ claims are resolved so that defendants cannot spend or hide them before the case is decided. The legislation was sponsored by California Advocates for Nursing Home Reform (CANHR), AARP, and the California Alliance for Retired Americans.

• Cal Assembly Bill 1298 requires that California residents be notified when their electronic medical information or health insurance information has been exposed, thereby raising their risk of identity theft. The new law expands on California's earlier data-breach notification law, the first of its kind in the country, which inspired similar laws in more than 40 states. The 2003 law only covered financial information, with the new law coming in response to a report on medical identity theft issued by San Diego’s non-profit World Privacy Forum in 2006. The report revealed that a quarter of a million people per year are victims of this crime.

Last call on undue influence

Before putting undue influence to rest (at least for now), I've added a resource page on the topic to my website. Just copy and paste:
http://lisanerenberg.com/learn/undueInfluence.html

While you're visiting the site, you might want to check out my "Lisa's picks" section. Just reviewed a booklet, Missing Voices: Views of Older Persons on Elder Abuse by the World Health Organization and the International Network for the Prevention of Elder Abuse, a fascinating view of abuse from an international perspective. It's at:
http://lisanerenberg.com/lisas-picks/missing-voices.html

There's also a link to Animal Hoarding: Structuring Interdisciplinary Responses to Help People, Animals, and Communities at Risk, another fascinating document that I was involved with.

By the way, I changed the format on my blog. It's now easier to leave comments and there are several on the last post. Please feel free to join the discussion on whether or not caregivers who receive last minute bequests should be presumed to have influenced those they care for. Just click on the page "PPS on Undue Influence," which is listed under "archive" to the right and scroll to the end where it says "Post a Comment."

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.

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.

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.

Long Distance Undue Influence

Last week, San Diego prosecutor Paul Greenwood posted a message to NCEA’s list serve about an “articulate, coherent and charming” elderly woman who’d sent over $50,000 to telemarketers in Canada despite being warned repeatedly that they were crooks. She described feeling “hypnotized.”

It reminded me of when Dennis Morris, a San Francisco prosecutor, came to a meeting of our multidisciplinary team more than a decade ago and asked if anyone knew of an expert in brainwashing. He was working on a case involving a wealthy elderly woman who’d married her 40-something accountant. The justice of the peace who performed the ceremony insisted that the elderly bride knew what she was doing but Morris knew things weren't right. We thought it was a strange request—nobody was talking about undue influence in relation to elder abuse back then. But someone suggested Margaret Singer, an expert on cults, brainwashing, and persuasion. Morris contacted Singer, who subsequently testified before a grand jury, describing the classic forms of social persuasion that the younger man had used. He was convicted in what became a landmark case, and Singer went on to write and lecture extensively about undue influence in elder abuse. The topic struck a chord because it offered an answer to a fundamental question in elder abuse: Why do victims do what they do? And, perhaps more disturbing,why don't they do what we think they should?

In the early days, we chalked it up to “resistance” or reminded ourselves of clients’ rights to act freely. But over the years, we’ve gained greater insight into the psychology of abuse and victimization. Major milestones include breakthroughs in our understanding of the intricacies of mental capacity, including the subtle and elusive “executive function.” Domestic violence theory and practice helped us understand power and control and the “help-seeking process.”

Paul’s case, I believe, involves “long distance undue influence,” which has been an interest of mine ever since Debbie Deem, a Victim Specialist with the FBI, convinced me it should be. Debbie has a burgeoning caseload of what she refers to as “chronic victims” who repeatedly send money to predators, most of whom operate outside the U.S.,despite warnings from law enforcement, families, banks and social service agencies. Some of her cases are wrenching. One involved an elderly victim who had a check intercepted and sent back to her by a wonderful program involving the Royal Canadian Mounted Police and U.S. law enforcement in Canada. No sooner did she get her money back than the scammer called and convinced her to re-send the check–inside a stuffed animal.

Debbie and I have been working together to try to get APS, legal assitance, elder abuse and aging network professionals involved. So far, we haven’t had much luck. It’s not surprising. These cases are daunting, and investigating them ideally involves sting operations, taping conversations, surveillance, international task forces, and other strategies that are well beyond the scope of APS or legal aid. Some in our field don’t consider these cases elder abuse because they don’t fit the classic profile: perps aren’t family members or others in positions of trust or confidence. But a closer look reveals that these guys are hardly strangers. Many call their victims daily, send birthday cards and tell them fake sob stories. To my mind, the only difference between these long distance predators and the sweetheart scammers who befriend elders in supermarket parking lots is that they’re smarter and less likely to get caught. Clearly, investigating these cases is best left to law enforcement, but many victims are desperately in need of legal and protective services including cognitive assessments, money management, advocacy to mitigate the harm, assistance with creditors, housing, identity theft interventions, and lots and lots of support to break their ties to abuser.

A recent San Francisco case shows what can be done. Attorney Nancy Rasch was able to get a conservatorship on an elderly victim who’d lost thousands of dollars in a Canadian lottery by showing that the client had been unduly influenced. Nancy, who has been doing groundbreaking work in elder abuse since the early 80s and has handled hundreds of conservatorship cases, shared Paul’s bewilderment about her client, who was paying her bills and managing her personal affairs just fine. It was clear that the conservatorship prevented further losses as the older woman continued to call Nancy asking her to release her funds because she was convinced that if she made one final payment, she’d get the millions she’d been promised.

Paul’s post has already generated a flurry of responses. One was from psychologist Gary Freedman-Harvey, who pointed out that “vascular dementia” impairs recall and makes it possible for others to “create” memories. Other researchers, including Jacoby, Bishara, Hessels, & Toth (2005) have also suggested a link between memory deficit and vulnerability to scams. Some of the best work in this area that I’ve found is being done by Doug Shadel and Anthony Pratkanis (http://www.aarp.org/states/wa/ and http://www.apa.org/science/psa/pratkanis.html). In the quest to understand why clients do what they do, long distance undue influence is clearly the latest challenge.