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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Geriatricians, Angry and Otherwise

Last week, I had a fascinating conversation with French journalist Dominique Prédali, co-author of On Tue Les Vieux, or Killing Elders, which describes elder abuse in French nursing homes and hospitals. Written for the general public, the book's small initial printing sold out the first day it hit bookstores last year and is now in its third printing. She is currently researching a new book on elder abuse around the world, which will be called Douze Gériatres en Colère or Twelve Angry Geriatricians. The angry geriatricians will talk about the social and economic factors that contribute to elder abuse, including ageism in health care, inadequate pensions, and poverty. She will also be looking at the role of failed health policy, including the introduction of market oriented healthcare reforms, in compromising the poor's access to health services.

Her research on the role of economic forces in elder abuse has been far flung, and includes delving into the sociology and anthropology literature that focuses on the effect of poverty on violent crime in developing countries. Among the experts she's interviewed is Ted Miguel, a medical anthropologist at the University of California, San Francisco, who is looking at witch killings in Meatu villages in Tanzania. Witch killings, which have been reported in Kenya, Ghana, Zimbabwe, the Congo, South Africa, Uganda, and parts of South America and India are typically committed against elderly women, and, according to Miguel and others, are much more likely to occur when food is scarce as a result of drought, floods, and other "income shocks." For more on global issues in elder abuse, see my review of Missing Voices: Views of Older Persons on Elder Abuse, which was jointly produced by the World Health Organization and the International Network for the Prevention of Elder Abuse at Missing Voices.

What should make geriatricians happy is the loan forgiveness program for health care professionals proposed by Shirley Krohn, a member of the California Senior Legislator (CSL). Shirley has pulled together an impressive group of geriatricians and others to help draft legislation to cancel all or part of government student loans to those studying geriatrics. Modeled after the state assembly, CSL's 40 senior senators and 80 assembly members develop proposals, which are then ranked by the full group; the highest ranked are pitched to legislators for sponsorship. CSL boasts a 70% success rate of bills chaptered into law. Shirley is working on several other elder abuse bills that address such critical areas as criminal background checks for home care workers and adding undue influence to California's penal code section on elder abuse.

All the talk about geriatricians got me thinking me about a terrific article that appeared in The New Yorker last April, which I've been meaning to add to the reading list of a course I'm developing. In "The Way We Age Now," Atul Gawande, a surgeon, describes the field of geriatrics, beginning with an achingly graphic description of how the body declines as we age ("the gums tend to become inflamed and pull away from the teeth; when you reach inside an elderly patient during surgery, the aorta and other major vessels often feel crunchy under your fingers").

When he accompanies a geriatrician from his hospital on visits, Gawande is struck by the multiple complaints that his colleague's elderly patients describe (unlike his own patients who typically present with a single major problem) and how he triages them. For example, when they visit a patient with arthritis, back pain, incontinence, and what might be metastatic colon cancer, Gawande hypothesizes that his colleague will zero in on the potentially life-threatening cancer. Instead, he spends most of the visit inspecting her feet inch by inch, having concluded that the greatest threat to her engagement in the world is a fall. It is this emphasis on functional capacity and quality of life that Gawande finds remarkable. The article goes on to describe the dwindling number of geriatric programs across the U.S. It is available online at "The Way We Age Now."

And finally, according to the promotional materials, it's like “having a doctor in your pocket.” The UCI School of Medicine recently released its excellent “Pocket Doc” for social work, legal, and law enforcement professionals who want to talk the talk. Written by Laura Mosqueda, it's a portable, comprehensive guide to common geriatric disorders and medications. To get a copy, click on Pocket Doc.

Fighting Back Against Financial Crime

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

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

At the national level:

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

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

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

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

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

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

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

NYT's Article on Nursing Home Buyouts Prompts Action

In a follow-up to its September 23rd article "At Many Homes, More Profit and Less Nursing" by Charles Duhigg, the New York Times yesterday reported that the article has prompted a flurry of Congressional activity. Last week, Senators Max Baucus, who chairs the Finance Committee, and ranking member Charles Grassley sent letters to five private investment firms requesting information about their ownership and management of nursing homes–the Finance Committee oversees Medicaid and Medicare, which pay for more than two-thirds of nursing home patients. Among the firms they contacted was the Carlyle Group, one of the world’s largest private equity firms, which was in the process of buying Manor Care at the time of the report. Manor Care operates 552 facilities in 32 states. Senator Grassley has also asked the Government Accountability Office to examine how private equity ownership has affected the quality of nursing home care. And, earlier this week, two Congressional committees, the Energy and Commerce Committee and the Financial Services Committee, announced that they would also be investigating private investment firms' practices with respect to nursing homes.

The Carlyle Group also acted quickly, sending letters to regulators and officials in states where Manor Care has facilities, promising to maintain staff levels and other standards. The firm also sent letters to residents and families criticizing the Times article and denying its claim that they were intending to overhaul Manor Care to make it harder for regulators to trace ownership. But yesterday's article cites documents filed with Maryland regulators that indicate that Carlyle plans to reorganize Manor Care to make each home a stand-alone company and to separate ownership of the homes' real estate and operations, a move that other private investment groups have used to avoid liability and scrutiny by regulators.

Elder Abuse for Profit

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

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

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

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

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

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

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

Other excerpts:

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

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

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

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

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

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

Keeping up With Financial Predators

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

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

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

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

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

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

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

More likely to listen to sales pitches;

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

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

More optimistic about the future.

For the full report, click on Off the Hook Again

County Caregiver Screening Program Faces Challenges

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

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

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

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

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

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

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

Questions about how to enforce the law.

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

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

Senior Centers as Financial Abusers

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

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

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

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

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

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

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

This is definitely one to watch!

Comings, Goings, and Congratulations

Congratulations and heartfelt best wishes to Mary Twomey, who will be leaving her job as Director of the San Francisco Consortium for Elder Abuse Prevention at the Institute on Aging to become co-director, along with Laura Mosqueda, and northern California liaison of U.C. Irvine's Center of Excellence in Elder Abuse and Neglect.

Obviously I've had a strong interest in Mary's work since she took over as the Consortium's director when I left in 2000. I think it's only natural, when someone takes over a job you've had for 16 years, to have a certain amount of ambivalence. Of course you want them to do well and carry on your work. But there's also a nagging fear that they'll discover your skeletons or shortcomings; or worse, outshine you.

But watching Mary take the Consortium in new and exciting directions has been wonderful to watch. She's led the program with grace, skill, and panache. Under her guidance and with the help of IOA staffers Dana Smith, Melissa Anderson, and Tessa ten Tusscher, the Consortium has made remarkable strides. What was a fledgling support group and counseling program when I left is now an integral component of the IOA's geriatric psychology training program, which means that every participant in the program receives training in working with elder abuse victims. They currently have 20 marriage and family therapist interns, practicum students, and a post-doc. Plans are underway to secure funding for an elder abuse forensic center, which will be modeled on UC Irvine's. The Irvine Center is staffed by legal, medical, social services, and law enforcement professionals who review abuse cases, develop care plans, conduct in-home medical and mental status evaluations and evidentiary investigations, and provide training and consultation.

Mary's new job will involve working with other projects funded by the Archstone Foundation around the state, overseeing technical assistance to grantees, and helping the center provide leadership in statewide advocacy.

Of course I'm looking forward to seeing who fills "our" job next and will keep you posted.

---

Congratulations too to Lori Jervis, Assistant professor of American Indian and Alaska Native Programs at the University of Colorado, Denver, for being awarded a grant from the National Institute on Aging for a pilot study on the mistreatment of American Indian and Alaska Native (AI/AN) elders. The goal is to lay the groundwork for studying the prevalence/incidence of mistreatment among rural and urban Native elders by exploring alternative methods and proposing recommendations for future research that are both scientific and "grounded in local realities."

They'll be assembling two groups to guide the project: 1) an interdisciplinary team of researchers with expertise in AI/AN communities and a track record in conducting epidemiological studies with the population, and 2) a culturally and geographically diverse panel of Community Experts with backgrounds in Native elder advocacy and abuse prevention. I'm pleased to have been asked to serve on the latter.

---

Earlier this week, the Administration on Aging announced grants to operate the National Center for Elder Abuse. The National Committee for the Prevention of Elder Abuse will oversee NCEA's multidisciplinary efforts, the National Adult Protective Services Association will oversee training, and the University of Delaware will serve as co-manager.

---

As many of you know, I've had a strong interest in restorative justice approaches to preventing elder abuse. So, I was intrigued and pleased to learn that Arlene Groh, Elder Abuse Restorative Justice Resource Consultant for the Elder Abuse Response Team in Waterloo, Ontario, spent the Second World Elder Abuse Awareness Day in Busan, Korea, giving a workshop on her work. Participants came from all over the country and included elders, academics, experts in family violence, and representative from Elder Abuse counseling centers across the country. The event was hosted by the Korean Information Network for the Prevention of Elder Abuse (KINPEA) in collaboration with the administration of Busan and the Metropolitan City National Health Insurance Corporation, which is playing a leading role in creating a long-term care insurance service in Korea.

Arlene's visit was at the invitation of Dr. Dong Hee Han, who has a doctorate in elder abuse and is attempting to make changes in how elder abuse is addressed in Korea by looking at a new definition of filial piety, connecting isolated seniors with "cyberspace families," and working with elderly prostitutes.

Let's Try This Again

Sorry that my instructions to readers about how to participate in discussions with Rene Bergeron's students were misleading (she assigned students in her "Interpersonal Abuse and Violence Across the Life Span" class to start or participate in discussions about previous posts).

Here’s how to participate:

To read the original posts being discussed, click on the links below. At the bottom of each post is a "comments" link. To see the students' comments and join the discussion, click on the link.

For a discussion on "Ageism, Elder Abuse and Social Justice," click here
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
For a discussion on the "De-feminization of Domestic Violence and What it Means for Elder Abuse," click here
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
For a discussion on "Perpetrators with Dementias," click here
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
For a discussion on "Undue influence is Not a Crime," click here
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
For additional posts on undue influence, click here

I've been very impressed with the comments so far and hope others will join in.

With a little help from my friends (and colleagues)

Rene Bergeron, Associate Professor of Social Work at the University of New Hampshire, has assigned students in her Interpersonal Abuse & Violence Across the Life Span class to participate on my blog this week as a class assignment. Many of you, I'm sure, are familiar with Rene's work. She's done fascinating research on a variety of topics, including ethical issues in elder abuse and self-neglect.

Here's the class' assignment:

1. Go to the site and select one of the following categories (see the labels at the bottom of the page):
· Ageism
· Undue Influence
· Domestic Violence/ Gender
· Perpetrators with Dementia

2. Read the blog for that category and refer to any suggested articles/ readings/ websites to frame your thoughts.

3. You may either begin a thread by starting a new thought, or you may comment in response to someone else’s thought.


The students have the rest of the week to post their comments.

Readers, please join us!

If you subscribe to the site through FEEDBLITZ (see the box on the right hand side of the page), you will receive an announcement every time someone posts a comment. If you haven't subscribed, either consider doing so or check in often to see what topics are active. To read or post comments, scroll to the end of the posts and click on "comments." If you need help, let me know.

Only Rene's students get graded!

Predators and Politics

A couple weeks ago, the New York Times ran a chilling account, "Bilking the Elderly, With a Corporate Assist," about how financial predators operate and how presumably legitimate businesses help them. Here's how it opens:

The thieves operated from small offices in Toronto and hangar-size rooms in India. Every night, working from lists of names and phone numbers, they called World War II veterans, retired schoolteachers and thousands of other elderly Americans and posed as government and insurance workers updating their files.

Then, the criminals emptied their victims’ bank accounts.

Richard Guthrie, a 92-year-old Army veteran, was one of those victims. He ended up on scam artists’ lists because his name, like millions of others, was sold by large companies to telemarketing criminals, who then turned to major banks to steal his life’s savings.

Mr. Guthrie, who lives in Iowa, had entered a few sweepstakes that caused his name to appear in a database advertised by infoUSA, one of the largest compilers of consumer information. InfoUSA sold his name, and data on scores of other elderly Americans, to known lawbreakers, regulators say.

InfoUSA advertised lists of "Elderly Opportunity Seekers," 3.3 million older people "looking for ways to make money," and "Suffering Seniors," 4.7 million people with cancer or Alzheimer's disease. "Oldies but Goodies" contained 500,000 gamblers age 55 and older, for 8 1/2 cents apiece. One list said: "These people are gullible. They want to believe that their luck can change."
For the whole article, click here.

InfoUSA is one of the nation’s largest "list brokers," matching buyers and sellers of personal data. The company, which claims to have records on 210 million Americans, counts among its clients Readers Digest, Publishers Clearinghouse, and Condé Nast. But according to banking documents, court filings, and e-mail messages reviewed by the Times, infoUSA also sold thousands of elderly Americans’ names to known criminals. This includes World Marketing Service, a company that a judge shut down for running a lottery scam; and Atlas Marketing, which a court closed for selling $86 million of bogus business opportunities. Federal Trade Commission (FTC) rules prohibit list brokers from selling to companies engaged in obvious frauds.

Democratic presidential candidate Barack Obama responded to the Times article by issuing a press release that includes a letter he wrote to the FTC demanding to know what it was doing to protect vulnerable seniors. Specifically, he asked what the FTC was doing to regulate the sale of telemarketing databases to companies that are under investigation or have been prosecuted for fraud, what's being done to educate seniors, and what enforcement actions have been taken against data brokers, telemarketers, or "enabling financial institutions" (the Times article also sheds light on how banks and financial institutions let crooks access seniors' accounts).

Unfortunately, Obama's release hasn't gotten much play. Wouldn't it be great if this became an issue in the 2008 campaign? Maybe then, we'd see some action.

Posters a Hit!

Word got around about the World Elder Abuse Awareness Day posters designed by a class at City College of San Francisco. I've had 1,000 guests visit my blog this month to check them out, and the City College folks had requests for the artwork from all over the world. The posters have been shown by agencies in the US, Australia, and Canada, and they even made an appearance at the World Health Organization's event in Geneva, Switzerland. Georgia's Department of Human Services had them emailed to all the supervisors across the state, and they will be displayed at a conference for California Long Term Care Ombudsmen in the spring.

"It was rewarding to work on such a meaningful project. The students and I learned much about a topic that we were hardly aware of. We are very happy that our work was met with such enthusiasm."

Regina Rowland, Professor of Graphic Communications, City College of San Francisco

"It's great to see that our hard work has had such a good reception and taken on a life of it's own after we finished working on it."

Clinton Froehlich, Student Project Director

For more on how World Elder Abuse Awareness Day was observed around world, see the website of the International Network for the Prevention of Elder Abuse.

Art for Elder Abuse Awareness

In my March 26 post, I mentioned that an advanced graphics design class at City College of San Francisco that I’ve been working with got interested in World Elder Abuse Awareness Day and decided to design posters for a class assignment. Here are the wonderful results.








Several of the posters have been translated into multiple languages. The class designed collateral materials too.

For those of you who don't know about World Elder Abuse Awareness Day, the event was launched last year on June 15, 2006 and is sponsored by the International Network for the Prevention of Elder Abuse (INPEA). Communities around the world developed educational programs, press conferences, and awareness events, which ranged from balloon races in the UK, to quilt-making in Canada, to wearing white socks in South Africa. INPEA encourages any group that would like to participate to host marches, vigils, conferences, symposia, press briefings, media events. For more information and other resources, including Community Guide to Raise World Awareness on Adult Abuse Tool Kit, visit NPEA’s website at: www.inpea.net

By the way, the CCSF class has agreed to make the materials available to anyone who’d like to use them to promote events. To find out more, contact Clinton Froehlich, the director of the project, at: clintonf@mac.com

Way to go, CCSF! Thank you.

Please feel free to pass this message along to anyone you think might be interested in using the materials.

Caring About Caregivers

Last month, while we celebrated my mother-in-law’s 90^th birthday at her board and care home, I spent a long time talking to Carole, the daughter-in-law of another resident, Brenda. Before moving into the home a year ago, Brenda had lived with her son and Carole, and the couple’s two pre-teen kids. The arrangement lasted five years, during which, Brenda’s mental capacity declined and Carole’s worries soared.

At first, Carole had the standard fears about accidents and fires. She feared that Brenda would forget to turn off a burner or get lost. That Brenda was still driving was a major source of dread. Once, when Brenda didn’t get home when she was supposed to, Carole found her in her car, parked on a side street, in tears; she’d been blinded by the setting sun and panicked. Another time, Brenda drove to Reno. When the family came to get her, they found her in a casino, waving a fistful of cash. Carole breathed a sigh of relief when the DMV called Brenda in for a driving test, but her relief was short-lived; they renewed Brenda’s license for another two years. Carole sat through her kids’ soccer games worrying whether she was giving them the attention they deserved. She worried that she had started telling Brenda what to do instead of asking her to do things, and that her patience was waning. Carole ended her litany of worries with one that worried me—she worried that if she ever had a momentary lapse that resulted in harm to Brenda, she’d be accused of elder abuse.

I hate to think that caregivers see our network as a threat rather than a resource. I admire people who open their homes and lives to elderly members and have been deeply moved by books like For Sasha with Love and The 36-Hour Day, which chronicle the experiences of caregivers. My favorite is the touching and inspiring Elegy for Iris, written about Iris Murdock by her literary critic husband of 40 years, John Bayley. In it, he describes his tender love for her that is disrupted by fits of rage when the unrelenting demands of caregiving and the cruelties of dementia overwhelm him.

Caregivers don’t just worry about being accused of abuse. According to a 1995 study by Karl Pillemer and Jill Suiter, 20% of dementia caregivers fear they’ll actually become violent toward those they care for, a rate that jumps to 57% if the care receiver has been violent toward them. A shared living situation and disruptive behaviors by care recipients also increase caregivers’ fears. Pillemer and Suiter also looked at whether fearful caregivers actually abuse, and found that 6% do.

In previous blog postings, I’ve called for our network to reach out to the dementia care network. Some in our field disagree. There’s a pervasive “been-there, done-that” attitude when it comes to focusing on caregivers. Some believe that framing abuse as a “caregiving issue” leads to inappropriate interventions that place victims, particularly battered women, in danger. Some fear that caregiver stress will be used as a defense to excuse the inexcusable.

Their concerns are understandable. But caregivers need and deserve help; and, in fact, there are very few programs or resources out there for those at risk of abusing. We’re in a unique position to fill that gap. We now know that caregiver stress isn’t simply a matter of how much care patients require; other factors like poor past relationships (and domestic violence), aggressiveness and violence by care receivers, mental health issues, and the “fear factor” play a role. What’s needed are screening tools to assess high risk caregiving situations and strategies to help caregivers manage aggressive behaviors, deal with their fears, and plan for their safety. If caregivers continue to feel that they will be treated unfairly or punished for asking for help, they will never reach out or get services they desperately need.

Criminal conduct should never be excused or spun as something it’s not. But in elder abuse, we deal with lots of nuanced distinctions and slippery slopes. We expect the public, judges, and juries to understand cognitive deficits, power and control, and undue influence. By comparison, caregiver stress is well within the scope of experience that anyone who has raised a child or cared for a disabled loved one can comprehend. Most of us can appreciate John Bayley’s rage and still distinguish right from wrong.

In Memory of Phil Lucas and More

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

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

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

Emerging Artists Against Elder Abuse

One of the most enjoyable projects I've worked on lately is consulting with the Health Sciences Department of City College of San Francisco to develop a training for emergency medical personnel– fire fighters, EMTs, and paramedics. As part of the project, which is funded by the Archstone Foundation, we're developing an on-line, interactive class with the help of City College design instructor Regina Rowland.

As an added perk, Regina's enlisted the talents of her advanced design class to help us develop a logo, media kit, ads, and other materials to promote the project. Fellow consultants Eileen Goldman and Sharon Turner, and I have brought the class up to speed on elder abuse as they teach us about branding, positioning statements, and typographics. The result is a very impressive packet of materials that we'll be releasing in the next few weeks.

Now the class is interested in doing a poster for World Elder Abuse Awareness week on June 15. If anyone has an event or project they'd like to promote, I'd be happy to let them know.

Defining Elder Abuse: The Debate Continues

A couple of weeks ago, while Nobel laureate and holocaust scholar Eli Wiesel was in San Francisco to speak at a peace rally, a young man approached him at his hotel and asked for an interview. Wiesel agreed to talk in the lobby, but for some reason, they ended up getting into an elevator together. When they got to the younger man’s floor, he pushed Wiesel out and tried to drag him to his room. Wiesel managed to get away unharmed, and a few days later, police caught up with the attacker in New Jersey after he bragged on an anti-Semitic website that he’d planned to force Wiesel to admit that the Holocaust had never happened. He was charged with attempted kidnapping, false imprisonment, stalking, battery, and the commission of a hate crime. And elder abuse.

I know I’m not alone in rejecting the notion that this was elder abuse, notwithstanding that Wiesel is 78 years old. The case wouldn’t meet most commonly-used criteria. But, to me, the charge highlights the fact that in the quarter century that we’ve been talking about elder abuse, we still don’t agree on what it is. And isn’t.

Here are some of the areas of controversy:

1. Do victims have to have impairments that render them vulnerable or dependent? If not, the argument goes, our traditional systems for protection should suffice.

2. Do they have to be in “special relationships” with their abusers, which is generally taken to mean family members, caregivers, and fiduciaries? That’s in contrast to “stranger crimes,” which our traditional systems are also supposed to be able to handle.

3. Do single acts count, or does the abuse have to be repetitive?

4. Does the conduct have to be “willful,” or do “benign neglect” and reckless acts count?

5. Does the conduct have to result in harm? In other words, is it the conduct that matters, or its impact?

My answer to all of the above is a feeble “yes.” Feeble, because I can point to countless exceptions. In addition, criteria that make sense conceptually don’t always translate well into practice. For example, while I agree that vulnerability and dependency are defining features of elder abuse, I wouldn’t want to see APS programs screen out abused elders who don’t appear to be vulnerable or dependent. Impairments that contribute to vulnerability and dependency may be subtle, change over time, or be a symptom of abuse, as is the case when people who are deprived of food and water show signs of cognitive impairment. The latter creates a catch-22 in which someone is vulnerable while they’re abused, but not before or after.

Other criteria pose similar headaches. I agree that most stranger crimes against elders don’t constitute elder abuse, but as I’ve noted in previous posts, distinguishing strangers from non-strangers isn’t always as straightforward as it might seem. Perpetrators seek out victims, befriend them, or come courting. It’s a tactic. And, while most would agree that when these new friends or Lotharios con or steal, it's elder abuse, they draw the line when it comes to predators who seek out and woo their victims by phone or computer. That’s considered a beast of another color, even when predators maintain daily contact, send birthday cards, and generally play to their victims’ loneliness, loyalty, or compassion.

I’m not proposing a definition. I don’t think, as a field, we’re ready. Although it’s clear that how we define elder abuse will directly affect practice by dictating whom we serve, the size of caseloads, and the service needs of victims, definitions have largely been the province of researchers and policy makers. What I am suggesting is that practitioners join the “definitional debates.” We need their insights to help us understand how the various criteria used to define abuse translate to victims’ needs and the supply and demand for services. I’d be interested to hear what others think.

From the Folks Who Brought You “Friendly Fire”

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

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

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

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

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

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

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

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

Feel-Good Laws or Real Reform?

California’s conservatorship reform package, hailed as landmark legislation, was inspired by the LA Times searing report “Guardians for Profit.” The series portrayed private professional conservators, who are subject to less regulation than hairdressers, plundering clients’ estates while judges overlooked incompetence, neglect, and theft. To question conservatorship reform these days is near blasphemy. But are these laws really good policy?

Some of the provisions clearly have merit. One requires professional conservators to be licensed and regulated through the Department of Consumer Affairs. It bears mentioning that the law was sponsored by the Professional Fiduciaries Association of California (PFAC), which had tried for nearly a decade to get it passed. Those in the trade clearly stand to benefit from weeding out their crooked colleagues.

There are also provisions for more frequent court reviews, which also sounds like a good idea. But the cases described in the Times involved situations where individual courts had failed to provide even minimally adequate oversight. Under the new laws, courts may be required to conduct as many as 4 investigations during the first year of a new conservatorship. Wouldn’t it make more sense to address glaring deficiencies before imposing new responsibilities on all courts, including those that have been doing a good job? Not to mention the added costs of all these investigations, which are passed on to conservatees (those who can pay), and the added intrusion into their lives.

The Times reported that LA County's PG turned away 4 out of 5 people referred and took months to act, during which, hundreds of seniors died. As a result, the new law will require PGs to take all appropriate cases and sets deadlines for doing so.

Again, the law seems to make sense, but the issue here is really resources. LA wasn’t providing any funds to its PG, and the new laws don't provide any additional new state funding.

The new laws also fail to address more fundamental issues. A study of conservatorships in San Francisco a few years ago revealed that the PG’s backlog of cases could be accounted for in part by the fact that local nursing homes often refuse to accept impaired elders unless they are under conservatorships, a practice of dubious legality. The PG considers these patients a low priority because they aren't in imminent danger. For the most part, it's the hospitals that are being hurt since patients often remain hospitalized for weeks or months after they no longer require treatment. Patients too may be harmed by these unnecessary stays.

The SF study also found that some cases are referred for conservatorship because doctors are uncomfortable making medical decisions for impaired patients. In these cases, it's the docs who are being protected—against having to make tough decisions and potential liability. Other referrals come from APS on behalf of elders who are gravely disabled or in imminent danger because someone needs authority to assess their needs. In elder abuse cases, referrals are sometimes made to freeze the assets of incapacitated elders when criminals have access to them. I've heard that in another county, conservatorships are often sought simply to enroll incapacitated elders in hospice programs.

These experiences suggest the need to look at the goals and purposes of conservatorship. Conservatorships are to protect elders—not nursing homes or doctors. And, because conservatorship is an arduous process with long-term impact, it’s for people with long-term needs, not as a quick fix. They’re also intended to be used when less restrictive options won’t suffice. The problem is, there just aren’t many alternatives, and those that do exist are either flawed or aren’t being used. They include:

· Probate Code §3200, which allows health and medical care providers, neighbors, and friends to petition courts to order medical treatment (and possibly placement) for impaired patients. The law is not being used widely and its potential applications are unclear.

· Probate Code §2952 provides a means to secure the assets of elderly, incapacitated, financial crime victims. It is currently only being used in a few counties.

· Welfare & Institutions Code §§15703 - 15705.40 provides for “protective custody” of vulnerable persons with cognitive impairments to assess their protective service needs. It too, is only being used in a few counties.

· Health and Safety Code §1418.8 authorizes nursing homes to form in-house interdisciplinary teams to make medical decisions for patients who lack decision-making capacity. The statute has been criticized for its inherent conflicts of interest.

The SF study concluded that a statewide task force was needed to review how these laws and others have been interpreted and implemented across the state, explore best practices in other states, and make recommendations. Needless to say, that hasn’t happened.

Okay, granted, studying problems and developing strategic approaches to solving them isn’t sexy. But it’s what’s needed to produce coherent policy. The other day I came across minutes from a meeting of the State Senate’s “Subcommittee on Aging Elder Abuse Workgroup,” which met for several years to hash out policy. Experts from around the state met in Sacramento at their own expense. Many of the group's ideas were enacted into law and account for California’s strong civil and criminal protections. Unfortunately, staffing for the group, which was imperative to keep it moving and on track, was discontinued.

Today, more than ever, we need groups like these to debate the merits of proposed laws, oversee their implementation, identify problems, and ensure that the problems are ironed out or sent back to the drawing board. Lets face it. Slap-dash approaches only create more problems and stretch scarce resources even thinner.

NIJ Funds Study on Financial Abuse

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

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

Thanks to Readers for the Following:

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

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

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

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

The “De-feminization” of Domestic Violence and What it Means for Elder Abuse

In 1994, the San Francisco Consortium got a grant from the Administration on Aging to develop services for older battered women. I was delighted. A few years earlier, I’d collaborated with the Family Violence Prevention Fund on a series of talks on elder domestic violence for aging and DV service providers. Since nobody knew much about the subject then, my co-trainer from FVPF talked about DV for half an hour, and I talked about elder abuse for the other half. It was in the car on the way home that we tried to figure out the connections.

Amazing things happened. Once, I heard that a woman who worked at an agency we’d just presented to had refused to attend. Afterwards, others approached her to ask why. As they’d expected, she was a victim herself, terrified, and unready to deal with it. The short story is that with their help, she relocated and got a job with a sister agency in another city, all in a matter of weeks. When I called my co-trainer from FVPF to tell her the news, her response was, “Yeah, we get that a lot.”

Since our field was struggling to understand why so many clients refuse help, I was tremendously impressed by her insights into why battered women do what they do, when they do it, and why. Grounded in feminist ideology, traditional DV theory blames deeply-rooted, gender-based inequalities and discrimination for why men batter and get away with. It recognizes the intense cultural, psychological, and economic forces that trap women in violent relationships. And, that violence doesn’t occur randomly; it follows predictable patterns, which, when understood, suggest ways to help.

Once we got the AoA grant, we pulled together an advisory committee of reps from the DV and elder abuse networks. At our first meeting, we tried to come up with a working definition of DV. Someone proposed one that was commonly used at the time: “An escalating pattern of violence by men against their intimate partners to gain power and control.”

Immediately, the elder abuse folks wanted to tinker. “But adult children abuse their parents, and it happens in the home, which makes it “domestic,” they argued. “And it’s often related to financial abuse so we should include that too.” Things heated up quickly, and I imagined the project going belly up. The deadlock was eventually broken when we started talking about cases, (incidentally, I've always found this to be an effective antidote to turfism). Other AoA-funded projects were having similar struggles with varying resolutions. One project, for example, included abuse by male offspring but only if it met the other DV criteria.

Today, we wouldn’t be having the same debate. Definitions of DV have changed radically over the years for several reasons. As DV programs reached out to women of color, they met resistance from many who argued that while sexism plays a role in family violence, other social injustices do too. The Sacred Circle National Resource Center, for example, emphasizes the role of colonization and the disruption of family life in family violence among Indians. Duluth’s Domestic Abuse Intervention Project changed its definition, conceding that “all forms of institutionalized oppression, including racism, classism, heterosexism, and ageism increase the vulnerability of women…” Gay and lesbian advocates challenged traditional gender-based theory by exposing violence among same-sex intimate partners.

The elder abuse network has contributed to this “de-feminization” of DV. Much of the literature on elder DV cites prevalence studies showing that spousal abuse is the most common form of elder abuse. The same studies show that men are at somewhat greater risk. What they don’t explain is that these studies include dementia-related violence, which is clearly not DV.

More recently, men’s advocacy groups have claimed that men get abused too, by women, with some claiming that men are at equal or even greater risk. Critics argue that most of these studies use the same research tool, which has serious limitations. For example, it leaves out important forms of violence, including sexual assault, stalking, and intimidation, and fails to differentiate between offensive and defensive acts. Still, these groups have gained traction. They have initiated lawsuits claiming unlawful gender discrimination by DV programs that don’t serve men, and a 2005 amendment to the Violence Against Women Act specifies that “any grants or other activities for assistance to victims of domestic violence, dating violence, stalking, sexual assault or trafficking in persons shall be construed to cover both male and female victims.”

All of these pressures and challenges have obscured the definition of DV to the point that many prominent groups have abandoned the term altogether, replacing it with "intimate partner violence," "violence against women," "late-life domestic abuse," and other terms that are equally obscure. I find this lack of clarity troubling since DV laws like mandatory arrest and no-drop policies are powerful tools that should only be used for the purposes they were intended for, empowering the disempowered.

While nobody would argue that men are abused by women and deserve protection, the whole point of the DV movement was that radical reforms were needed to counteract historical injustices that rendered the tradition system ineffective. Clearly, those who have not experienced these injustices don’t need special protections. Many believe that the "battered men’s movement" has less to do with a genuine concern for male victims and more with political agendas regarding family courts and other anti-feminist concerns (some men's advocacy groups were originally formed to address issues like child custody). This backlash threatens what are already over-extended resources for battered women.

The elder abuse network is divided when it comes to the role of gender and other societal forces in elder DV (and elder abuse in general). Some have criticized us for being “gender neutral,” and others have called for discussion about the cumulative effects of gender, age, race, and class in raising older women’s vulnerability.

Others reject feminist and social justice analyses altogether. Much of the mainstream literature on older battered women is devoid of any references to feminism, gender, or social justice. I believe that’s a mistake. To assume that these factors don't affect risk or victims’ ability to protect themselves, assuming instead that abuse is only about interpersonal conflict, is myopic and does a disservice to the elderly women we serve. Not to mention compromising hard won battles fought by our colleagues in DV.

The DV movement is in a state of flux. In addition to the backlash from men, there is debate within the field. Victim dissatisfaction with criminal justice responses and such problems as the escalating number of women being arrested as co-combatants, which I’ve talked about in earlier posts, have led some to suggest that greater attention to other approaches is needed, including helping abused women attain financial self-sufficiency.

There has been little debate or discussion within our field about any of these issues or even about what we mean by the term “elder domestic violence.” I believe there should be. How things shake down in the DV world, and where we stand in relation to it, will have significant repercussions for those we serve.

I'd welcome your comments.