Mediating Elder Financial Abuse

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

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

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

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

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

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

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

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

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

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

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

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

Community Colleges, An Untapped Resource for Preventing Elder Abuse

For the last three years, I’ve been working with faculty at City College of San Francisco (CCSF), under a grant from the Archstone Foundation, to develop a course in elder abuse prevention for students in the paramedic, health care interpreter, and community health worker programs. Along with my colleagues consultant Eileen Goldman and CCSF instructor Robin Roth, we started out teaching Health 9A Elder Abuse as a traditional course. Later, we modified it into a “computer enhanced” class using online reading assignments, forums, and interactive exercises to supplement the classroom activities. Beginning in March, 2009, I’ll be teaching it as a fully online course. For more information, see Health 9A: Elder Abuse.

I’m really enjoying my teaching stint at CCSF and strongly encourage others to get involved with the community colleges in their areas. It’s a great way to reach allied health professionals. According to an article in the magazine of the Faculty Association of California Community Colleges, California’s community colleges “credential 80% of the state’s firefighters, law enforcement officers, and emergency medical technicians; and 70% of nurses.” Specifically, CCSF prepares students for careers as medical assistants, certified nursing assistants, licensed vocational nurses, registered nurses, nutrition assistants, diagnostic medical imaging technicians, radiology technicians, cardiovascular technicians, EKG technicians, pharmacy technicians, and dental assistants. They also offer programs in the administration of justice, trauma, and drug and alcohol counseling. The schools work closely with their local communities to meet workforce shortages and to make sure that they’re preparing students for the real world. Which also means that they place a strong emphasis on diversity and cultural competence. Truly an untapped resource.

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

New Report on Powers of Attorney (POAs)

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

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

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

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

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

Imposing sanctions for those who refuse to accept legitimate POAs.

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

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

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

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

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

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

Improve research, evaluation, and data collection;

Enhance interventions and responses; and

Increase public awareness

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

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

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

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

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

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

I hope I haven’t offended.

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