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.

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.

Archstone Foundation Creates Community of Contractors

Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.

I’m not actually a grantee but consult on two training projects. Along with my colleague Eileen Goldman, I’m helping faculty at San Francisco's City College develop a curriculum for fire fighters, paramedics and emergency medical technicians, which will eventually be integrated into the school’s curriculum and made available on-line. The other is an advanced training curriculum on self-neglect for APS workers being developed by San Diego State. Training is one of three priority areas for Archstone; other grantees are targeting dental students (UCLA) and clergy (Santa Clara County).

Another priority is innovative projects, with the largest grant going to the University of California, Irvine for a Center of Excellence on elder abuse, an expansion of the University’s elder abuse forensics center, which has been around since 2003. The center, the first in the country to focus on elder abuse, does evidentiary investigations and interviews, runs two multidisciplinary teams; and provides education, technical assistance and consultation. They also do research and just completed a study on bruises that provides baseline data on “natural” bruising that can serve as the basis for evaluating the non-natural kind. Hopefully, it will help prosecutors and others respond to the ubiquitous “she fell” or “she’s on Coumadin” defenses. Another study is looking at the rates of pressure ulcers in nursing homes, which will be used to help identify substandard care, and a third study is looking at California’s APS data collection system (which, not surprisingly, is not getting rave reviews). Study results are available on the Center’s website at.www.centeronelderabuse.org.

The forensic center model is being replicated at the University of Southern California under another grant, and my former employer, the Consortium for Elder Abuse Prevention at the San Francisco Institute on Aging has a grant for what Consortium Director Mary Twomey has characterized as the “poor man’s forensics center.” It provides free geriatric assessments that focus on capacity and undue influence to community agencies and has organized a network of experts to provide on-line and telephone consultation. The center may lack the panache of the south California forensics centers, but fills a critical community need and a viable alternative to other communities.

Another large grant was awarded to add an elder abuse component to San Diego’s Family Justice Center in collaboration with the San Diego District Attorney’s Office. I first learned about the SD justice center last year in Waterloo, Ontario, where I sat in on at a meeting to discuss plans for adding an elder abuse component to their family justice center. Casey Gwinn, director of the SD center, had just been in town and caused quite a stir. Unlike the SD center, which operates out of a downtown high-rise, the Waterloo center is in a home-like setting. Still, the concept is the same: co-locating police, prosecutors, forensic experts, and victim advocates from public and private, non-profit agencies to provide “one-stop shopping” and “wraparound” services. Casey is also a pivotal player in a national project (US Office on Violence Against Women) to replicate the justice center model, an initiative he recently described on Oprah.

Other projects focus on the sticky issues of predatory lending (Council on Aging Silicon Valley) and investment fraud (WISE Senior Services of Santa Monica). The predatory lending issue has been particularly close to my heart ever since the Leadership Group of the San Francisco Consortium’s WE ARE FAMILY African American outreach project discovered over a decade ago that African American elders in SF were being targeted by predatory lenders working in cahoots with home repair companies to get them to take out loans to fix up homes damaged during the ‘89 earthquake. The tactics used to take homes and get them back have become much more sophisticated since then, and the Silicon Valley project is impressive. Project personnel are trying to figure out how to get to vulnerable seniors as early as possible.

California’s Administrative Offices of the Courts is doing a statewide survey of court practices in elder abuse. They’re focusing on a few courts, which include Alameda County’s Elder Court, which has gotten a lot of press lately. The court, under the guidance of Judge Julie Conger, has a case manager, a separate docket for elders, and has been using California’s elder abuse restraining order extensively. The orders, which differ from domestic violence orders (which are also used in elder abuse cases)can also offer protection against financial abuse and abuse by non-family members, and are one of several practices the AOC is looking at. The idea for the elder abuse order came from San Francisco’s MDT and was sheparded through the State Assembly by Consortium member Judy Hitchcock of Legal Assistance to the Elderly.

Several other grants were awarded to start specialized MDTs. The Area Agency on Aging Serving Napa and Solano Counties, and the Elder Financial Protection Network of Novato started financial abuse specialist teams (FASTs) and the Riverside County Regional Medical Center is developing an assessment team to focus on self-neglect. Other teams have been started by San Bernardino’s Arrowhead Regional Medical Center and the City of Long Beach.

I’ve been to dozens of contractors’ meetings and professional forums over the years, but what impresses me about the Archstone project is the tone. There’s a strong emphasis on creating a “community of contractors.” The group meets once a month by phone and has convenings twice a year for updates and to solicit feedback. Other unique features are a technical assistance component, provided by the Center on Excellence, which draws from its stable of in-house staff and community consultants, and the involvement of a research/evaluation firm. Also noteworthy is that the Archstone team includes experts. The foundation has been sponsoring innovative elder abuse prevention projects since the early 1990s, and Mary Ellen Kullman, the foundation’s vice president, has been active on the national scene, sponsoring and participating in events from the beginning. Laura Giles, the lead contract officer for the initiative previously worked for the Irvine forensics center. So far, the contractors have been pretty candid, a refreshing change from your standard dog-and-pony shows.

The high level of creativity, expertise, and experience; the continuity; both the diversity and the commonality of the projects; and the presence of practice-focused researchers and foundation reps around the table provide a rare opportunity. The group recognizes that and has started looking for new ways to harness its potential. Ideas that have been floated include building a network that includes non-professionals, community awareness campaigns and state-level advocacy. Personally, I’m hoping the project stays focused on the how-tos of serving victims. In this era of “evidence-based practice,” the new buzzword for designing programs based on tried and tested techniques, that, in itself, would be a tremendous contribution.

Perpetrators with Dementias

A couple years ago, a friend who runs a dementia care program asked me to talk to her staff following a tragedy involving a client, a man with Alzheimer’s disease, who'd killed his wife.

The staff was understandably upset. But what made matters worse was that some felt they’d seen it coming. They’d filed a report with APS, and a worker investigated. But since the violence was dementia-related and the client was already receiving dementia care services, the APS worker concluded there was nothing more he could do.

It was not my finest hour. The group wanted to know what they could or should have done differently; what would have happened if they’d gone directly to the police; what steps, if any, they could have taken to have guns removed from the client’s home (and those of other clients); and what the agency’s role should be when their clients are the ones abusing. I didn't have answers.

The case has haunted me. In retrospect, I doubt if these was anything they could have done differently, but it got me thinking about what we, as a profession, need to do. Clearly, we should be providing dementia care programs with guidance in what to do when they know clients have histories of domestic violence, how to assess future risk, and what to do to ensure caregivers’ safety. Not to mention working with law enforcement to ensure that violent elders with dementias are treated humanely.

The issue is particularly timely now as domestic violence theory and practice filters into elder abuse, and police are increasingly being instructed to use applicable domestic violence laws when responding to elder abuse cases. These developments are resulting in more elders with dementias getting entangled with law enforcement and ending up in prisons or institutions for the criminally insane. It's the prospect of these innappropriate responses, I believe, that has made some people in the dementia care field leery of the elder abuse, law enforcement, and adult protective services networks. Even when their clients are on the receiving end of violence, they may be subject to arrest as co-combatants.

There are no easy answers. Formerly peaceful, loving husbands who become violent with the onset of dementias shouldn't be forced to spend their final days in prisons. Yet, long-term batterers are also likely to become increasingly dangerous and unpredictable with the onset of dementia and shouldn't suddenly be absolved or excused. The fact that decline is usually gradual makes it even hairier to try to figure out the point at which people are no longer culpable for their actions.

These issues aren't going to be resolved by the dementia care community alone. Nor by the elder abuse/law enforcement/APS network. Coming up with fair and humane responses requires input from both sides. Nowhere does distrust and lack of communication between two fields threaten to have more heartwrenching results.

Synchronicity, Plumbers and Elder Abuse

Yesterday, I was composing a laundry list of the various disciplines and professionals that have a role to play in stopping elder abuse for a book I’m writing. It included all varieties of health and mental health care providers, bankers, judges, clergy, entomologists (don’t ask), auditors, mail carriers, social scientists and many, many more.

In the other room, my husband was dealing with a plumbing problem. The sewer line between our house and the outside line was clogged, causing the water from my morning shower to make the toilet belch. It’s a problem we have every year or two when roots and vines make their way into a crack between pipes.

Several plumbers refused to give estimates over the phone, despite the fact that we could tell them exactly where the clog was, the length of the line, and the approximate time it takes to unclog. We finally agreed to let one come and take a look. After glancing at the front lawn, the guy offered to do the job for $165, considerably more than it cost last time. When we declined, he countered with $150, and we declined again. Ten minutes later, he was back, ringing the doorbell, and offering to do the job for $125. By then, someone else had agreed, by phone, to do it for $90.

An hour later, Dan and the $90 plumber were discussing the wily ways of home repairers. Things were especially bad for old people, the plumber told him, especially those with slight dementias. The biggest problem, he went on, was with “rooters," those plumbing companies that specialize in drain rooting. He had served as an expert witness in several cases, one involving an elderly woman who’d paid $9,000 for the same work we were having done.

Years ago, a prominent gerontologist suggested that elder abuse was a non-problem dreamed up by social workers to create jobs for themselves. It‘s gratifying that so many people recognize the problem today, see it as a community concern, and want to help. I wasn’t in on the abuse discussion, only hearing about it afterwards. If I had, I would probably have invited the plumber in, questioned him about his cases, and suggested that he present one at a local MDT.

At any rate, back in my office, I added plumbers to my list.

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

Follow-up on Government-Subsidized Elder Abuse

Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:

Riverside County (California) convinced an IHSS administrative hearing judge to deny a client the right to continue to use an abusive independent provider using the argument that the purpose of the IHSS program is to maintain the client safely at home. (Clients who have complaints about state benefits and services can request hearings, which are presided over by administrative law judges from the California Department of Social Services. Clients [and their advocates] and representatives from their counties present their sides.)

This was a domestic violence case and the boyfriend was not only the IP but also the client's authorized representative. He was very violent, and when he came to the hearing, he was verbally abusive to the hearing judge! It was obvious that paying this particular provider caused the client to be "unsafe" at home, undermining the purpose of the IHSS program. Unfortunately, the judge's ruling was for this individual case and did not set a precedent for other cases.

I’d be interested in hearing about what’s happening in other states.

Georgia Anetzberger, assistant professor at Cleveland State University, wrote suggesting the need for an in-depth article on this topic and more research. Georgia, by the way, did some of the seminal research on family abusers and has continued to do cutting edge work for over two decades. I fully agree about the need for research, especially studies to help identify high-risk IPs, which could serve to educate administrative hearing judges (and others) and alert consumers to risks.

I’ve also received many positive comments about the blog, suggestions for publicizing it, and ideas for future topics. Thank you all, and I’ll make every effort to oblige. Also, feel free to comment and let me know if you have problems doing so.
Lisa

Consumer Choice or Government-Subsidized Elder Abuse?

Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”

It wasn’t that simple, Mary explained. Under IHSS, clients can either be provided with workers through licensed agencies, or they have the option of hiring and supervising their own “independent providers,” including family members, with IHSS funds. In our case, the abuser was an IP, and the victim refused to fire him. Mary went on to explain that it was younger adults with disabilities who’d advocated for allowing IHSS “consumers” to take a more active role in managing their own services, which included making hiring and firing decision. It was a matter of client autonomy.

But autonomy was our mantra too, we complained. Still, paying abusers with public funds didn’t sit well with many of us.

The county eventually exercised its option to change the “mode of service,” which meant requiring the client to accept services from a licensed agency. But for many of us, the case was our first exposure to the incipient “consumer choice” movement. Flash forward ten or so years. The movement has flourished, fueled by the 1999 Olmstead decision, a Supreme Court case brought on behalf of two developmentally disabled women who’d been living in an institution but wanted to live in the community. Their lawyers successfully argued that the state had an obligation, under the Americans with Disabilities Act, to reasonably accommodate the women in the community. In essence, Olmstead framed community-based, long-term care as a human rights issue. It further got translated to mean that states had to offer consumers more options.

Since then, many in the aging services community have joined the disability community in support of consumer choice. Prominent organizations like The National Council on the Aging have been among the foremost supporters, and the Robert Wood Johnson Foundation has funded projects to increase opportunities for consumer choice.

In the meantime, APS and IHSS programs have continued to struggle to protect clients from abusive chore workers. It hasn’t been easy. Over 90% of IHSS clients choose the IP option and half hire family members. In California, repeated attempts by counties to change the mode of service of clients whose workers have abused them have been successfully challenged. Counties have challenged the challenges, but it seems to be a losing battle. According to Mary, there’s widespread agreement around the state that if clients want to keep their abusive IHSS workers, there’s little counties can do.

Okay, those of us in elder abuse prevention are jaded. It’s hard not to be when we hear about rampant abuse by chore workers and know that elders hire troubled offspring who can’t find better jobs. And then there’s the critical shortage of workers, the lack of screening, and recent studies showing disturbingly high rates of chore workers with serious criminal histories. Not to mention the rumors that probation and parole officers are actually encouraging their clients to become chore workers. And while consumer choice advocates acknowledge that some workers abuse, they seem to shrug off the risks and point to the “safety net” of APS and the elder abuse prevention network.

For example, the NCOA publication Myths and Realities and Consumer Choice includes as Myth 2: Consumer-directed services are not appropriate for elderly persons with disabilities or for individuals with cognitive impairments. The authors counter the “myth” with “Studies have shown that many elderly individuals with disabilities and persons with cognitive impairments can express daily preferences.” It’s true that many cognitively impaired consumers can express preferences, but that’s not what has me worried. It’s their ability to screen workers, detect exploitation, seek shelter, and withstand undue influence. The same publication lists as Myth 4, “Consumer-direction places older adults at greater risk,” and goes on to point out that “There is no evidence that the consumer direction model of service delivery is inherently “riskier” than professionally-managed services.” I have trouble with this one too. Studies I’ve read that compare abuse rates by IPs with agency-managed workers do suggest lower rates of some forms of abuse by IPs, especially family IPs, but they rely on elderly consumers’ perceptions of whether or not they’d been abused, which, as we know, is by no means a perfect indicator. Many victims don’t know they’ve been abused, are afraid to say so, are manipulated by their workers, or are more concerned with seeing troubled kids get jobs than their own safety.

I’m not against consumer choice. In fact, I’m a firm believer that responsible family caregivers should be compensated for the enormous contributions they make. What’s troubling to me is that the “safety net” isn’t working and members or our network have not, to my knowledge, been involved in state and federal policy discussions about consumer choice. Dealing with abuse by IPs is tricky business, which has gotten trickier in the age of identity theft and worker shortages. And then there are the unanswered questions about capacity. How do you define capacity to screen, supervise and fire workers? Since cleaning up messes is harder than avoiding them in the first place, shouldn’t we be involved in policy discussions about consumer choice, building relationships with the consumer choice network, explaining the barriers we face, and figuring out how to make consumer choice programs as safe as possible? I think so.

Saying Goodbye to an Elder Champion

When Bruce Coleman retires from the Royal Canadian Mounted Police at the end of the month, it will be a tremendous loss for American elders and their advocates. As coordinator of “Project Emptor,” a position he’s held since 2004, Bruce has helped countless victims and “would be” victims of telemarketing fraud. Project Emptor, as in caveat emptor, Latin for "buyer beware," intercepts packages and mail that contain “bait letters” from telemarketers and checks or money orders from victims. It’s not the first time Bruce has retired. He left the RCMP in 2000 after 27½ years and returned to the Commercial Crime unit after a short stint at Workers’ Compensation.

In the last two years, he and his colleagues have intercepted in excess of $2 million: 80% of the victims are American, and the rest are from the UK. That’s just a fraction of the money crossing the border though—about half of one percent is Bruce’s guess.

He has some interesting observations about victims and abusers:

“Victims tend to be elders facing the onslaught of old age and possibly, early stage dementias. I’m not an expert, but you can tell from talking to them that they’ve lost the ability to rationalize or make good decisions based on the facts before them. Most can’t assess risk. Even after getting checks returned with warnings, some victims continue to send money, partly because they’ve previously invested so heavily in the scam.”

“We had one case involving a woman who’s a multimillionaire, whose daughter obtained guardianship and used it to protect the older woman’s money. But now the mother is “smurfing,” money laundering, for the bad guys. She accepts money from other old people, deposits it into a bank account or buys bank drafts in amounts under $10,000 to avoid the reporting threshold, and sends them to Canada.”

“When I ask some elderly victims ‘Are you going to remember that we talked?’ a lot of them say ‘no.’ So I tell them to write notes to themselves that say, “No more money to Canada” and put them next to their phones along with my card.”

When it’s clear that an elder is on a downward spiral, he tries to talk them into calling their families, or calls himself. “These families aren’t dealing proactively with their parents’ aging. Often, they’re not aware of what mum or dad are doing or that they’re having problems. They haven’t arranged for co-signatories on bank accounts, powers of attorney, home care and social visits. Many, many seniors are very lonely, and the criminals prey on them."

“The perpetrators are ruthless. We can’t say how much of this activity is related to terrorism, but there are certainly links to organized crime. Most of the perpetrators are involved in cells and are highly organized with hierarchical organizational structures. They use drug addicts as runners. People don’t realize that once victims give up money transfer control or reference numbers from Western Union or MoneyGram purchases or wire transfers, the cash can be picked up anywhere in the world."

With hundreds of cases, Bruce has to get in and out fast, which is why he tries to hand off cases to American law enforcement and social services for follow up. “Reporting to local police is like confession or a reality check. It helps victims come to grips with the devastation.” He has harsh words for social service providers who refuse to get involved. ”If you get a referral from someone who’s lost thousands of dollars or is at risk, don’t argue that the person doesn’t meet your criteria or mandate. Step up! At least call and offer help. Leave a phone number.”

On his good guy list are the Canada Border Services (customs), courier companies and retail mail outlets, which have provided excellent cooperation to the RCMP and are largely responsible for identifying victims.

In spite of the fact that co-workers call him Robin Hood and American colleagues refer to him as Uncle Bruce, he remains modest. “I’m the conduit of others' good work.” He admits though that since starting the program, he’s never received so many thank-you cards.

Will he miss the work? “No,” he says. After 30 plus years in law enforcement, he’s ready for a break and isn’t considering a third career. He will miss the elders he’s met though, who include schoolteachers, people in the armaments industry and NASA, dentists, doctors, rocket engineers, and World War II vets.

We will miss him.

Offenders, Victims and Restorative Justice

Last month, I presented at the Offender Treatment, Victim Services, Restorative Justice conference in Miami, which was sponsored by the Institute of Evidence-Based and Best Practices. The conference was a bold one–it’s not that usual to bring victims’ and offenders’ advocates together, and when you throw in sessions on applying restorative justice (RJ) to domestic violence (DV), you know they were pushing the limits.

RJ draws from traditional Indian justice traditions. Rather than treating crime as a matter of guilt and innocence, it frames it as harm that affects not just victims, but offenders and the broader community. It assumes that certain conflicts, particularly ones involving families, are best resolved by repairing and improving relationships and controlling risk, rather than simply punishing offenders. It offers victims, abusers, and the community opportunities to come together to consider why crimes happened, what can be done to repair the harm, and how to prevent future harm. It also holds that society has an obligation to help offenders make amends and reintegrate them into the community. RJ isn’t a single technique but a variety of alternatives ranging from mediation to peacemaking courts to family conferences, which can be carried out with court involvement, under court supervision, or as an alternative to court intervention.

Critics see RJ as “light on crime,” offender focused, and dangerous to victims. Anti-DV advocates hold that mediation is impossible between victims and abusers because of imbalances in power. Others claim that involving victims’ and offenders’ friends, support systems, and communities, which is done in conferencing, won’t work because these networks may actually support, rather than discourage, DV.

Supporters counter that RJ often demands accountability where the traditional system doesn’t, particularly in cases involving first time or minor offenders who typically deny their guilt, get off with warnings, and never assume responsibility for what they’ve done. One of the speakers, Donna Coker, a nationally known expert in domestic violence, is among those who suggest that RJ approaches can and should be added to the arsenal of anti-DV tools. She’s written extensively on the limitations of criminal justice approaches to DV, including the “unintended consequences” of mandatory arrest policies. Because the laws fail to distinguish between one-time versus chronic and minor versus severe violence, they’ve resulted in dramatic increases in arrests of women, particularly women of color, as “mutual combatants.” This is in spite of research suggesting that most are acting in self-defense. Recent studies on recidivism also contradict early research that showed that arresting offenders reduced DV—the newer studies suggest that arrest reduces violence in some cases but increases it in others.

Coker and others urge caution in using RJ with DV and emphasize the need to ensure that women are safe and not being overtly or covertly coerced to participate. Among the advantages of RJ are that it offers victims a greater voice in the process, can potentially disrupt social and family support for battering, and provides women with opportunities to engage their families and friends in confronting their abusers.

What does all this have to do with elder abuse? I don’t really know. But the fact that so many elderly victims refuse to initiate punitive action against abusive family members for fear of loosing their relationships makes me think that RJ deserves our attention. I’ve been following the few elder abuse programs I’m aware of that use RJ and was pleased to hear that the director of one, Arlene Groh of Community Care Access Centre of Waterloo Region Ontario, will be presenting at the NAPSA conference in San Francisco in September. Another exciting model project was conducted by the Jamestown S’klallum tribe in Washington state, which uses family conferencing to address conflict in caregiving systems.

We’ve made huge strides in improving the criminal justice system’s response to elder abuse in recent years, which is critical. I don’t see RJ as a threat but rather, as providing opportunities for getting more juice out of the criminal justice system by supplementing court authority with the power of family and community relationships. While the research is sparse, there’s evidence that RJ approaches increase restitution rates and reduce recidivism. Victims’ satisfaction rates are higher. The Miami conference was billed as the “first annual” and I strongly urge anyone who’s interested in expanding the scope and focus of elder abuse prevention to watch for the next one.

Remembering Rosalie Wolf

It’s hard to believe that today marks the fifth anniversary of Rosalie Wolf’s death. For many of us, her presence is still very much felt. Almost daily, we see citations to her work, references to JEAN, and news about the organizations she spearheaded and the awards she inspired.

But beyond these tangible reminders is something less concrete. In many ways, Rosalie set the tone for our field. It was a tone of inclusiveness, an insistence that researchers and practitioners make the effort to abide each other’s peculiarities, and that social workers and police listen to each other’s points of view. Interdisciplinary exchange isn't easy in a field as diverse as ours. Our ranks include medical examiners, bankers, judges, FBI agents, fire fighters, private investigators, animal rights activists, prosecutors, researchers, ethicists, clergy, psychiatrists, and many, many others. But the diversity that Rosalie promoted nourished our field and enriched us personally.

In the early days of our field, there was no real downside to being inclusive. There was little competition and few competitors, let alone funds to compete for. When NCPEA’s board argued over whether or not to extend our mission to address the needs of younger, disabled clients or self-neglectors, there was no compelling reason not to. There was always more room at the table. The default was invariably to include.

Things are different today. There are more opportunities, and with them, more potential for conflict. With major public policy on the horizon, how we define elder abuse and the clients we serve matters. The answers to questions like “Is it only abuse when the elder is dependent? When the victim knows the perp? When there is a perp?” have consequences for caseloads, policy and practice. Whom we work with also matters more. New constituencies have emerged posing new headaches and new possibilities. Today, more than ever, we need interdisciplinary discussion and debate. We need the kind of forums that Rosalie created and led. We need the “Rosalie factor.”

Rosalie also set a tone of inquisitiveness. Her curiosity was insatiable and contagious. I never heard her mention retirement; it was unthinkable to her to quit as long as there was something new to explore or a new project to take on. Even as her health declined, she participated in important events like the Our Aging Population symposium and the National Symposium on Forensics Issues in Elder Abuse. She addressed the National Academy of Sciences study panel on abuse. Just weeks before her death, she left the hospital against medical advice to make a speech in Ohio. As nerve-wracking as some of her actions were to those around her, they were her M.O. This was the work she loved and thrived on.

To those of us who considered her a friend, colleague, teacher, collaborator or mentor, she was, above all, an inspiration.

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.

Criminal Caregivers

Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees.

But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy. When Pennsylvania amended its protective service law prohibiting long-term facilities from hiring or retaining employees convicted of certain crimes, the state’s Supreme Court ruled it unconstitutional. When New Jersey passed a similar law, over 400 current employees, many of whom had worked for years and were dong a good job, were found to have committed disqualifying crimes.

Keeping patients safe when there’s a critical shortage of workers is a balancing act—one that prompted the Office of the Assistant Secretary for Planning and Evaluation (DHSS) to commission “Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring,” a study, which explores, among other things, the relationship between past criminal background and subsequent abuse. As a member of the project’s advisory committee, I met recently with other members and staff of the Lewin Group, which conducted the study.

It came as no surprise that the preliminary findings affirm a link between criminal history and abuse. After all, an earlier study by Michigan’s attorney general showed that a quarter of CNAs convicted of crimes against nursing home residents had prior criminal backgrounds. But the group also discussed the need for more research on recidivism and the dissemination of existing information to guide hiring decisions. One advisory committee member cited a recent study that suggests that after 7 years, past criminals are no more likely than others to commit new crimes.

The need for more research to guide hiring decisions became clear to me years ago when a worker at an Oregon agency responsible for hiring home care workers told me about a convicted child abuser who, after being denied employment, successfully challenged the decision claiming that there was no empirical evidence to show that persons who abuse children are likely to abuse elders.

In calling for more research, we will find some unlikely allies. These include offenders’ rights advocates, who hope that new studies will create more opportunities for reformed offenders. They argue that the need for research has become particularly critical in light of Internet technology, which has made checking backgrounds easier than ever to obtain. They furhter caution that the rapid growth of the largely unregulated criminal background check industry poses serious threats to offenders' rights.

Ensuring patient safety at home is even harder--home care workers are in even shorter supply and spend significantly more time with elders alone and unsupervised. The popularity of “consumer choice” programs in long term care, some of which permit low income elders to use public benefits to hire workers on their own (as opposed to using licensed agencies), have forced some frail elderly “consumers” to make hiring decisions on their own in a stunted market with inadequate information. These are clearly issues looming on the policy horizon. Hopefully, the DHHS study is just the start. More on consumer choice programs to come.

Ageism, Elder Abuse and Social Justice

It’s not surprising that Paul Kleyman would take offense at a “Close to Home” cartoon that ran in a recent edition of the Washington Post. In it, an elderly bald man is reading a tabloid called Aging Today, which has a wrinkled, swimsuit-clad elderly woman on its cover under the banner "1st annual swimsuit edition.” The cartoon’s caption is “A dark day in publishing.”

Paul is editor of the real Aging Today, the bimonthly newspaper of the American Society on Aging and takes a firm stand against ageism. In a letter to the editor (from Paul to Paul)that appears in the latest issue, he points out that the term "ageism" first appeared in the Post in the early 1960s in a profile of Robert Butler, the founding director of the National Institute on Aging, written by the young reporter Carl Bernstein. Paul adds that the International Longevity Center USA (ILC-USA), which Butler directs, recently released a new report, “Ageism in America.”

Elder abuse is one of seven categories of ageism that the ILC-USA report addresses. It suggests that ageist attitudes are what compel some to rip off, neglect, or harm the elderly. It also gives examples of institutional ageism with respect to elder abuse, which includes the glaring inequities in public funding for protective services to children versus elders.

Butler and his colleagues make a convincing case. Still, there’s something troubling to me about blaming ageism for elder abuse, which, in essence, casts elder abuse as a social justice issue along with racism, sexism, anti-Semitism, heterosexism, classism, and all the other “isms” that are responsible for oppressing, discriminating against and marginalizing others. After all, the ranks of the elderly include society’s most privileged members.

If we’re going to embrace elder abuse as a social justice issue, we should start by taking an honest look at our field’s track record. Although our research consistently shows that communities of color are disproportionately affected by elder abuse, it’s an issue that’s rarely discussed. We know that African Americans and Hispanics are more likely than whites to experience financial abuse, and that elderly African-American and Hispanic women are more likely to experience intimate partner violence. Social and economic factors that heighten risk are also more prevalent in communities of color, includng poverty, which may contribute to or be mistaken for neglect and self neglect. In 2003, 8.8% of elderly whites lived in poverty, compared to 23.7% of elderly African-Americans and 19.5% of elderly Hispanics, and older women are much more likely to be poor than men (12.5% compared to 7.3%). Nearly 41% of elderly Hispanic women who lived alone were poor. Heightened demands on African-American and Indian caregivers, exacerbated by multigenerational caregiving, lack of resources, urban migration and other factors, also contribute to risk. Clearly, reducing poverty and offering adequate support to underserved groups can lower the risk of elder abuse and neglect.

The truth is that in this country at least, we’ve shied away from addressing elder abuse as a social justice issue. Late-life domestic violence programs have downplayed the fact that the domestic violence movement was driven by the women’s movement, which attributed domestic violence to discrimination and women’s subordinate status in society. In calling for an improved criminal justice system response, we’ve failed to acknowledge the historical injustices that make many minority elders wary of the system.

Destpite its title, the Elder Justice Act has little to say about justice. In sharp contrast, the World Assembly on Aging, in a 2002 report, cast the mistreatment of older persons within the broader landscape of “poverty, structural inequalities and human rights violations,” and further acknowledged that women were disproportionately affected.

If we’re going to frame elder abuse as a social justice issue, let’s be consistent and demand social justice and equal protection for all elders. Simply calling for parity with other age groups and more flattering media portrayals just isn't enough.

Walmart Benefits from Restitution Reform

The other day, I was updating a handout I use for presentations on financial abuse and decided to check up on a project I list in the "Best Practices” section. It's a program created to revamp Vermont’s restitution recovery system, which got started after a 2001 state auditor's report revealed that only 13 cents of every dollar owed for restitution had been collected during the previous year.

The way the program works is that rather than funneling monthly payments directly from criminals to victims, victims are paid what they're owed from a fund generated by a 15% surcharge on criminal and traffic court fines. The Vermont Center for Crime Victims Services assumes the debt and collects from offenders.

The program is innovative in a couple ways. Trained professionals, rather than individual victims, are the ones tracking down perps' assets, hopefully resulting in improved recovery rates. Also, victims don’t need to wait months or years to collect; they’re paid, up to $10,000, immediately after sentencing. The approach is also fairer. Traditionally, the victims most likely to collect restitution are those who have the resources to hire lawyers.

Although the program is considered a success, the program's founders soon realized that thousands in payouts (almost 20% of the fund) had gone to big businesses including Wal-Mart, Rite Aid and Banknorth. Clearly, businesses, especially small ones, are impacted by crime, but the Vermont program was created to help ordinary people, not publicly traded multinational corporations. In response, they went back to the state Legislature, and successfully got a new bill passed to clarify the fund's intent.

More on restitution:
In January 2005 the GAO released a report, "Criminal Debt: Court Ordered Restitution Amounts Far Exceed Likely Collections For the Crime Victims in Selected Financial Fraud Cases," which reviewed five federal financial crime cases. Only 7% of the ordered restitution had been paid despite the fact that the defendants had reported significant wealth or assets prior to their judgments. The report also includes recommendations for better enforcement of restitution, which includes encouraging prosecutors to place more pressure on offenders to pay off restitution and fines prior to sentencing as part of plea agreements. They also suggest that asset forfeiture measures be taken earlier in investigations. The report is available at http://www.gao.gov/htext/d0580.html.

For more on approaches states have used to improve their restitution systems, see the excellent Office for Victims of Crime publication Making Restitution Work, Legal Series Bulletin #5.

Other approaches that made my “Best Practice” list are:

Dakota County, Minnesota’s probation department allows probationers to pay off restitution by doing community service. They work for minimum wage, and the county pays victims from a restitution fund.

South Carolina allows probationers to pay off unpaid supervision fees with community service. Offenders are supposed to pay a $40 fee each time they meet with probation officers.