Elder Justice Comes of Age

Last June’s White House symposium on elder abuse was a watershed event. Delegates, many of whom had been advocating for decades for more federal involvement, were assured by high ranking administration officials that elder justice was a priority. Hosts, speakers, and delegates were near giddy in their fervor, and murmurs of “Is it for real?” wafted through the crowd.  

It coincided with something I’d been feeling for awhile: that elder abuse prevention had entered a new era. After years of making excuses for its protracted infancy, perhaps we were finally witnessing our field’s coming of age. 

Clearly, thinking about elder abuse had matured. “Elder justice” has emerged as the dominant new paradigm, offering a more expansive view. Defined by the framers of the Elder Justice Act as “the right to live free from abuse, neglect, and financial exploitation,” elder justice suggests that abuse isn’t just a matter of personal and interpersonal dysfunction, but rather, it’s about ensuring fairness, human rights, and equal access to resources and protections for all older adults. That’s a mighty big leap.

How this new perspective plays out remains to be seen. Hopefully, for starters, we’ll acknowledge that older adults are a distinct group with specific needs and circumstances rather than an add-on or “special population” within broader realms like victim rights or domestic violence. The “special” designation has led to plugging clients into services designed for other groups, which often aren’t a great fit. It has sometimes also meant buying into premises that don’t apply (e.g. that abuse is motivated by the drive for power and control, which domestic violence theory assumes) or pressuring victims into options they find unacceptable (e.g. reporting abusive family members to authorities in order to qualify for victim services). Defining our field through other disciplines’ lenses has forced us to make false choices (“elder abuse is ______” where the correct answer is: a woman’s issue, a hate crime, a caregiving issue, domestic violence, and so on, depending on whom you talk to).  That limit the options for helping victims.   

Pigeonholing elder abuse this way has had other consequences. It’s lead to conflicts within our ranks and kept us from gaining traction from an advocacy perspective. We’re remained politically marginalized, divided, disorganized, and powerless. 

Elder justice lets us start fresh and think bigger. It encourages us to rally our forces and find a common voice instead of arguing among ourselves about the “right” analyses. 

This expanded way of thinking has parallels in our research. The new “ecological” models of elder abuse that theorists have proposed acknowledge that personal, interpersonal, societal, and economic factors all play a part in abuse, thereby freeing us from the old dogmas about how situations should and shouldn’t be handled. They lend themselves to multifaceted and holistic solutions that include clinical, public health, and public policy interventions. 

Understandably, some may assume that elder justice just means ensuring that older people have access to the legal system. Clearly, that’s important. But, to a great extent, the legal system focuses on situations in which individuals‘ rights have already been violated, and elder justice can be much more. The California Elder Justice Coalition has adopted a proactive approach that I like to think of as “justice promotion.” It calls for taking affirmative steps to protect autonomy and self determination; ensure fair access to health, social, and legal services; thwart predation; and strengthen responses to abuse. It requires that we focus on capacity assessment and enhancement, ethical considerations in decision making, and safe advance directives. It includes consumer protections that focus on age-related vulnerabilities, keeping dangerous people out of the long-term care workforce, and heightening consciousness among those who serve older adults about high risk situations. 

Clearly, the federal commitment to elder justice displayed at the White House event marked a step forward. The Financial Consumer Protection Bureau, Administration on Aging, Social Security Administration, Department of Justice, and others, in partnership with financial institutions, have acknowledged that consumer protection is part of the elder justice equation by addressing predatory lending, scams, and other forms of exploitation. 

But there are countless other opportunities to promote elder justice. Consumer protections are needed in “consumer-driven” long term services and support (LTSS) programs. Focusing the elder justice lens on programs that transition Medicare and Medicaid beneficiaries into managed care or that provide in-home care requires that we establish strict screening and accountability measures for providers and that we develop realistic criteria for evaluating vulnerable consumers’ ability to choose and monitor their care.We know from recent research that the deficits that render people vulnerable can be subtle, and our network can play an important role in identifying potential problems and building in safeguards. Instructing LTSS providers in how to recognize deficits in decision-making capacity, asking them to be on the lookout for clients who have recently taken out reverse mortgages or who’ve been targeted by predators, and urging them to add  a few questions to assessment tools to identify risk could have a huge impact. 

Instituting these measures requires federal leadership. Let’s hope that our dynamic new federal leaders will connect the dots and see the possibilities for making elder justice an integral component of the service delivery system rather than as a field apart. 

Remembering Toshi Tatara

I have on my desk a lovely little gold-leaf box for business cards that Toshi Tatara gave me when I visited him in Japan a couple of years ago. It’s filled with irregular cards from other countries in various sizes, shapes, and languages that don’t fit into the US-centric card file that sits beside it.  Toshi too was of a different cut—distinctive and larger than average in his thinking, his commitment to the field of elder abuse prevention, and in his generosity toward those he mentored and championed. 

I first met Toshi in  the mid-1980s at a meeting for Administration on Aging grantees. He worked at the American Public Welfare Association and was doing some of the earliest research on elder abuse; I had a grant to replicate our fledgling San Francisco elder abuse multidisciplinary team in other communities. A few years later, when AoA solicited proposals for the first National Center on Elder Abuse, I collaborated with Rosalie Wolf on a proposal. We competed against Toshi and his partners, the National Association of State Units on Aging and the University of Delaware. Toshio’s team got the grant, but he invited us in as a partner.

During his frequent visits to San Francisco, we often met for dinner in Japan Town, or J-Town as he called it. In the 80s he was working on a project to explore risk factors in child abuse, work that he later adapted to elder abuse. “You don’t prioritize cases that are the most serious or even the most urgent,” I remember him explaining. “You go for the ones you’re most likely to fix.” It was a simple lesson that stuck.

A true internationalist, he encouraged the many Japanese students he mentored to meet colleagues from around the world. San Francisco became a stopping place for his students and colleagues visiting the States. Among the first I met was Yoshihiko Kaneko, who, a few years later, sent me a copy of his book on elder abuse. A bookmark held the page where my name appears, the lone English script on a page of Japanese, the letters stacked one on top of each other.  

The National Center thrived under Toshi’s leadership. He leveraged grants and brokered partnerships to carry out cutting-edge work. Working with the Archstone Foundation, he assembled a team of researchers that included Georgia Anetzberger, Donna Benton, Ailee Moon, Yolanda Sanchez, and Arnold Brown, to explore cultural variations in elder abuse. The project included a terrific conference that brought together not only leading figures in elder abuse, but in ethnic aging as well, including Percil Stanford and Fernando Torres-Gil. Toshi went on to edit the seminal Understanding Elder Abuse in Minority Populations. Later, he finessed funding for the first national incidence study on elder abuse.  

After moving back to Japan in 1998, he continued to promote exchange between the two counties and was particularly proud of translating the iconic National Research Council’s Elder Mistreatment: Abuse, Neglect, and Exploitation into Japanese. It was no small feat. The hefty 570- page English version translates to over 662 pages in Japanese and required the help of three professional translators and two years to complete. He stayed abreast of developments in the U.S. too and was thrilled when Bob Blancato called him personally to let him know that the Elder Justice Act had passed. 

A few years ago, I introduced Toshi to John Dussich, professor of Victimology at Cal State Fresno who also directs the International Victimology Institute (TIVI) at the Tokiwa University in Mito, Japan. Toshi visited the Institute, which he raved about, and he and John were soon dreaming up joint ventures.

In recent years, our paths crossed around the globe. In the summer of 2009, we both attended the Japanese/Korean international roundtable on elder abuse in Busan, Korea that was organized by Donghee Han. With him on the trip were Akiko Sasaki from the Tokyo Medical and Dental University and Noriko Tsukada from the Nihon University Graduate School of Business. He and Noriko worked on many projects together, including a study to explore public policy approaches to meet Japan’s shortage of health care workers by encouraging foreign workers to come to Japan. They also conducted a survey of domestic violence researchers to find out why there haven’t been more studies of secondary victimization of victims during investigation and treatment. 
It was clear that theirs was a relationship of deep affection and respect.

After the Busan event, I accompanied him back to Chiba to talk to his graduate class in aging at Shukutoku University. He’d assigned the students to come up with questions about social work in the States. Although they came to class meticulously prepared, it soon was clear that they didn’t understand my answers, so Toshi stepped in to translate. I’ve worked with translators enough to know that the length of time it takes to say something in one language may be quite different in another. Still, Toshio seemed to be taking an awfully long time with my responses. And it wasn’t just the length that differed; his tone became increasingly more inspired and intense. His face lit up, and he gestured with finger and fist. The students were totally engaged. I like to think that he gave one of his most personal and impassioned lectures that night, and feel honored to have played a role, if only as a gambit. After class, over sushi, I tried to get him to tell me what “I” had said, but all I got was one his enigmatic smiles.

The following year, we were both guests at an international workshop on caregiving sponsored by the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth in Berlin. Toshi was asked to give the closing remarks. Rather than offering up the standard, congratulatory fare, his wrap-up struck a somewhat discordant and feisty tone. He challenged the organizers to ask themselves tough questions--what were their goals and had they achieved them? It wasn’t the first time I witnessed his candor discomfort a room. He nudged us all to probe deeper.

The last time I saw Toshio was when he visited California’s three forensics centers. Over dinner in J-Town, he expressed his admiration for how American professionals were able to get past professional status and hierarchy to work together on cases. He was dubious as to whether the model could be replicated in Japan but was game to try.

 

Our field benefited enormously from Toshi. His legacy lives on in his many publications and in friends’ and colleagues’ fond memories of his inimitable style.  I’ll miss those J-Town dinners and hearing his expansive and insightful take on matters both personal and professional. He was a true original.   

Toshi's  Opus Magnum

How I Spent My Vacation

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

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

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

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

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

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

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

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

AARP Looks at Criminal Background Checks for Home Care Workers

Publicly funded programs like In-Home Support Services (IHSS) that provide helpers to assist with such basic daily tasks as eating, bathing, housekeeping, and shopping, are a godsend to people with disabilities who want to live independently. Some of these programs reimburse families for providing care to their own members, buffering them against impoverishment. But the lack of screening and oversight of caregivers, and the unchecked access they have to society’s most vulnerable, have also made caregiving an attractive job choice for opportunists and predators. In some families, the job falls to troubled or dysfunctional members who can’t find other work. As a result, shocking accounts of abuse and neglect by publicly paid workers are hitting the press almost daily. These accounts are even more shocking when it’s revealed that an offender was recently released from prison or is on the lam.

In response, states have enacted criminal background checks. But while there’s general agreement that checks are needed, developing systems isn’t easy, as AARP's excellent new report Developing Effective Criminal Background Checks and Other Screening Policies for Home Care Workers shows. The report raises such complex questions as what crimes should disqualify workers, do we apply the same standards when helpers are family members, how do we ensure fairness, who pays, and how will checks affect an already inadequate supply of workers?

A Survey of State Laws
Although much of the funding for in-home care comes from the federal government, the feds defer to states to develop programs and policies for hiring and screening workers. AARP commissioned the National Conference of State Legislatures to conduct a state-by-state comparison, which revealed widespread variations.

“We were surprised at the wide diversity of provisions on which crimes disqualify job applicants,” says Naomi Karp, Policy Advisor for AARP’s Public Policy Institute, which produced the report. “Some states (including California) only disqualify applicants for past offenses against vulnerable people, while others exclude them for a simple DUI.”

Of the 46 states that mandate pre-employment criminal background checks, most disqualify applicants who’ve been convicted of homicides and other violent or sex-related offenses. Some include fraud-related crimes and crimes against vulnerable adults and elders. The laws also vary in terms of which workers are covered. Some, for example, require background checks for family members who receive payment for providing care while others exempt them.

To Work or Not to Work: A Measured Approach
Criminologists, offenders’ rights advocates, and common sense tell us that mitigating factors need to be considered before disqualifying applicants with criminal histories, including their age, the length of time since they committed the crimes, their work histories subsequent to offending, and whether or not they can show they’ve been rehabilitated. Naomi adds,

“Our study identified exciting criminology research on redemption —determining when a person with a criminal history no longer poses a greater risk of committing a crime than anyone else. Professionals in the elder abuse and long-term care fields are unlikely to be aware of this, never mind policymakers.”

She further cautions against over regulation.

"Although we need to find ways to protect home care consumers, we also need to avoid unnecessary disqualifications as workforce demand increases and to increase fairness to job applicants.”

The report suggests for example that when elders use public funds to hire their own family members to provide their care, the standards should be relaxed. It also acknowledges that in the interest of consumer choice and empowerment, some consumers of home care should be given the opportunity to assume greater risk (as long as they’re capable of understanding those risks).

Let Research Be Our Guide
While researching an article on this topic several years ago, I interviewed criminologist Vernon Quinsey who explained that the point where the risk of re-offending becomes negligible is different for different crimes and different settings. To understand the risk that home care workers with criminal histories will re-offend requires that we study home care workers with histories who re-offend. In other words, our field’s tendency to borrow knowledge from other fields won’t work here. We need our own research.

Other Approaches
The report further cautions against over relying on background checks and highlights the importance of detailed application forms with disclosure requirements, thorough interviews, reference checks, drug and alcohol screening, credit histories, and training. Other recommendations include “rap-back systems,” which refers to programs that automatically flag new disqualifying crimes committed by workers after they’ve been hired and alert employers. It calls for a tiered system that begins with low cost checks of state records and registries for all applicants, followed by more extensive checks when the initial checks suggest problems. Screening systems also need to provide for appeals and waivers, or “rehabilitation reviews” to let disqualified applicants demonstrate their suitability.

Surprisingly, background checks may have a powerful deterrent effect. The report cites the findings of a Centers for Medicare & Medicaid Services (CMS) study that shows that while fewer than 4% of applicants in state criminal background check pilot projects were disqualified by checks, close to 19% withdrew their applications before the checks were made.

Next Steps
While AARP has made an enormous first step in tackling this complex issue, many more questions still remain, including:

• How do we decide when elders with cognitive impairments are capable of making hiring decisions? In doing so, we need to acknowledge that hiring is just the first step in a process and anticipate what will happen down the line. Once they hire workers, for example, will impaired elders be able to detect financial abuse, withstand manipulation and intimidation, or even ask for help?

• Will criminal background checks disproportionately affect communities that are overrepresented in the criminal justice system?

• Will policies that give elderly consumers greater responsibility for vetting their own workers carry with them greater liabilities (e.g. for hiring workers who are undocumented)?

The AARP report hasn’t generated as much media attention as expected, which isn’t surprising to me. Accounts of recently released sex offenders getting jobs as home care workers makes for better copy. But the painstaking, thoughtful approach that AARP has taken in this report is invaluable to those who are working on policy. Thanks, AARP!

For copies of the report, see Developing Effective Criminal Background Checks and Other Screening Policies for Home Care Workers

For more on abuse by caregivers and additional resources, visit my Web site at: http://lisanerenberg.com/learn/caregivers.html

In Memory of Gita Shah

Last week, my good friend Gita Shah of Mumbai passed away. Although I’d known she’d been sick for some time, it still came as a shock. She was one of those forces of nature that seem indestructible. My sadness though has been tempered by a flood of joyful memories.

I met Gita in Mumbai in 1992 during a Council for International Fellowship (CIF) exchange program for social workers from around the world. Gita, an instructor at the Tata Institute of Social Sciences, was on the committee that introduced us to India’s history, economy, politics, culture, and social services. It was also an opportunity to reflect on our own countries’ approaches to social work and social justice. I was instantly drawn to Gita’s exuberance, intelligence, and gentle grace.

After the orientation, I went to Pune for my fieldwork assignments at an AIDs prevention program and a village social development program. I also got to tag along with a class of students from the Karve School of Social work on a tour of rural development projects led by instructor Anjali Madeo. It was a revelatory experience. We visited women’s craft collectives that were demonstrating that getting money into the hands of women had a more profound impact than medical facilities on health. And we learned that women’s literacy programs were more successful than contraception in curbing population growth. I’ve been thinking about these experiences a lot lately as the field of elder abuse goes global, with groups like the Older Women’s League and WITNESS addressing abuse from a human rights perspective and highlighting the role of women.

By the time we got back to Mumbai for the CIF wrap-up, I didn’t want to go home. Fortunately, Gita had taken an interest in my work and invited me to stay on. She got me an invitation to one of the first-ever Indian conferences on aging and arranged for me to give a talk on aging in America to a group of her colleagues. After she’d assured me that moving into her home wouldn’t be any trouble, I agreed, later discovering her son and daughter-in-law sleeping on the living room floor. Over chai at her kitchen table, she bemoaned the disintegration of the joint (extended) family in India as her husband, Chandra, their sons, daughters-in-law, and mother-in-law streamed past. We dreamed up collaborations.

A year or two later, she visited me in San Francisco, where I showed off our giant redwoods and arranged for her to give a talk to a group of American Society on Aging members. She cooked an Indian meal for my friends and taught us Indian dances. In the next few years, she explored elder abuse in India and co-authored an article for the Journal of Elder Abuse & Neglect (volume l6, issue 3/4, 1995).

Once, during the CIF program, a member of the planning committee confided that she’d only agreed to serve because “I can’t say no to Gita.” I came to know what she meant. It wasn’t that Gita badgered or pressed. It’s just that her passion was contagious, and anything she was involved in seemed worth doing—something you wanted to be a part of. When she spearheaded a program for the elderly at the Family Welfare Agency (FWA), I sent checks and tracked down the resources she requested. Two summers ago, when CIF held its international conference in Cleveland, Gita prepared a paper but had to cancel when she didn’t get the funding she’d been counting on. When she asked me to fill in, I wasted no time convincing my husband, Dan, that Cleveland would be the perfect starting point for the midwestern back-to-our-roots vacation we’d been talking about for years. Another Indian colleague eventually came forward and offered to give the paper, but we headed east anyway and had a wonderful time.

Over the years, Gita and I wrote often. She reported on her travels to Kenya to train trainers, and her work with Project SHARE, which focuses on rainwater harvesting in rural areas. She introduced me to her niece Alpa Desai, also a social worker at FWA, who lived for a while in the Bay Area and shares Gita’s interests, commitment, and charm.

Just a few weeks ago, Gita invited me to give a talk in India, and I can’t seem to shake the feeling that I’ve left a task undone, a commitment unmet. It’s a good feeling really, this fleeting summons from my old friend. I will miss her enormously.

Financial Elder Abuse: Hot Off the Presses

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

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

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

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

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

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

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

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

From Daejeon to Cleveland: A World Elder Abuse Awareness Day Odyssey

This was the first year I participated in World Elder Abuse Awareness Day (WEAAD) events, and I did it to the hilt. WEAAD, the brainchild of Elizabeth Podnieks and the International Network for the Prevention of Elder Abuse (INPEA), has been gaining momentum since its 2006 debut, capturing the imaginations of program planners around the world. INPEA’s Web site provides a glimpse of the far-flung and creative programs it has inspired.

My whirlwind WEAAD tour started on June 3 in Daejeon, Korea where I took part in a symposium on elder suicide and abuse at the Chungnam Women’s Policy Development Institute. My very genial hostess Bae Ji Yeon, a researcher in social work at the Institute, greeted me in Seoul and accompanied me by train to Daejeon, where the event took place the next day. Bae is doing research exploring the link between elder abuse and suicide. Other presenters at the symposium included Japanese researcher Kaisho Yumiko, of the University of Shimane, Japan; and Donghee Han, Director of the Research Institute of Science for the Better Living of the Elderly in Busan, Korea. Donghee also directs the Korean Information Network for the Prevention of Elder Abuse (KINPEA).

Following the symposium and a little sightseeing, Donghee left for Busan where she was planning another WEAAD event scheduled for the following week, and I headed downtown with Bae and Kaisho for Korean barbeque. It's wonderful to see these passionate thirty-something researchers bringing new ideas, energy, and verve to our field.

In keeping with the Eastern gift-giving tradition, I’d prepared for my trip by stocking up on Americana gifts. Figuring that nothing was more emblematic of America these days than all things Obama, my Korean and Japanese colleagues got O-emblazoned socks, candy bars, and other presidential paraphernalia.

The next day, Bae dropped me at the Daejeon train station where I caught a high-speed train for the 2-hour ride to the beautiful port city of Busan. There, Donghee took time out from WEAAD preparations to meet me and show me the sights. Which included dropping in on a class of “Internet Navigators,” a group of seniors she organized who are learning how to use computer technology to build social networks and access information. Instructor Shin Tae Won teaches ambitious software programs like Photoshop as well as social networking, which students then go on to teach other seniors. When I told the group about my Web site, they logged on and converted it into Korean. So for my new Korean readers, I wish you a warm 환영합니다 네비게이터 여러분!

In the next few days, I met Donghee’s family (Michelle, Sasha, and Malia paper dolls for younger daughter Hadam, and socks for 16-year-old Hana, who incidentally, has already decided to follow in her mother's footsteps to become a gerontologist). I also sampled lots of wonderful Korean cuisine and took 5 a.m. walks along Haeundae Beach where I joined scores of health conscious Korean elders jogging, walking, and exercising at stations set up along the beachfront. Another highlight was the annual performance of the Busan Mothers Orchestra, which was organized many years ago to reduce isolation among stay-at-home moms. The audience consisted mostly of beaming kids, who were remarkably well behaved through the lineup of Mozart, Bach, and traditional Korean folk music--except for the few who couldn't help jumping up to wave at Mom.

On Sunday, the Japanese delegation arrived for the first Japanese/Korean international roundtable on elder abuse. The group was led by Toshi Tatara, past director of the National Center on Elder Abuse, and current professor at the Shukutoku University in Chiba; and included Akiko Sasaki, professor at the Graduate School of Health Sciences at Tokyo Medical and Dental University, and Noriko Tsukada, professor at the Nihon University Graduate School of Business. That afternoon, we visited the United Nations Memorial Cemetery, a tribute to the fallen soldiers from 16 countries who defended South Korea in the Korean War and the Busan fish market, which was billed in my guidebook as the smelliest fish market in the world (fortunately, the claim seemed to have been a bit overstated). That night, our hosts treated us to a feast--a prelude to the following day’s events--where we were joined by the Internet Navigators. I dodged requests to perform Karaoke and chatted with the Navigators about how they were using the Internet to keep in touch with grandchildren and finding other ways to stay involved.

The next morning we assembled at the Busan Metropolitan City Hall to meet with local officials and media reps before the WEAAD event, which featured performances by the Mothers Orchestra and traditional dance and choral groups followed by updates on abuse by the Japanese and Korean researchers. The panel was moderated by Dr. Sung Kyu Tak, who has written extensively about filial piety, the Confucian tenet of respect and duty toward parents, a value that many Koreans believe is fast eroding. Interestingly, Dr. Sung believes his work has received greater attention in the West than by Asians whom, he suspects, fear that promoting filial piety may be used as an excuse for government to relinquish responsibility for long term care. As the only non-researcher in the group, my charge was to describe abuse prevention policy and practice as well as provide an update on what’s new in the U.S.
The next morning I flew to Chiba at Toshi’s invitation to speak to a class of his graduate students at Shukutoku University. It was also a welcome opportunity to hear what Toshi has been up to since leaving the States. Among his recent accomplishments was translating the iconic National Research Council’s Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America (Bonnie & Wallace, 2003) into Japanese. The hefty 570 page English version translates to over 662 pages in Japanese and required the help of three professional translators and two years to complete. He’s since signed contracts to translate two more books for NAS, one on domestic violence and another on child abuse. He has also been working with Noriko Tsukada exploring public policy approaches to meeting Japan’s shortage of health care workers by encouraging foreign workers to come to Japan. In addition, he’s conducting a survey of domestic violence researchers to find out why there haven’t been more studies of secondary victimization of DV victims (by professionals involved with either the investigation or treatment processes).


Toshio’s students (who got tins of Obama breath mints) grilled me on everything from strategies for combating elder domestic violence to helpful hints for social work practice. In response to the latter, I advised them to abandon much of what they learned in social work school, which didn’t phase Toshi, who clearly enjoys challenging his students to question conventional wisdom and engage in open and lively debate. I genuinely appreciated the chance to brainstorm and spar with one of our field’s most creative and pioneering leaders.

The last stop on the WEAAD trail was Cleveland, Ohio, where I spoke at the Consortium Against Adult Abuse’s annual conference “Beyond the Looking Glass: Reflections of Adult Abuse, Interventions & Strategies.” I've always felt a special affinity to the Ohio Consortium since its development paralleled that of the San Francisco Consortium for Elder Abuse Prevention, and I’ve looked to them often for guidance and ideas. The conference, planned by Sylvia Pla-Rath and an education committee, clearly reflects their community’s longstanding commitment to dynamic networking and interdisciplinary exchange. The event also provided me with a chance to visit another of our field’s most respected and admired leaders, Georgia Anetzberger, who has, for nearly a quarter century, been a source of guidance, support, and inspiration.

Sadly, my WEAAD journey ended in Cleveland, and I won't be joining Elizabeth, Toshio, Donghee, Noriko, Akiko, and all the others in Paris for INPEA's official WEAAD commemoration, which takes place on July 5 in conjunction with the annual conference of the International Association of Gerontology & Geriatrics.

In my rush to get ready for the trip, I didn’t get around to plugging the National Center on Elder Abuse (NCEA)’s "Join Us: Together, we have the power to prevent elder abuse” campaign, so I'll do it belatedly. The campaign included the release of an elder abuse info-ad featuring actor William Mapother of TV's Lost, which ran in movie theaters from May 22 through June 18. Each year NCEA develops materials for states and local communities. In planning the trip, I also reconnected with Arlene Groh, a Canadian consultant who specializes in restorative justice approaches to elder abuse. Arlene spoke at the 2nd KINEA WEAAD event.

I’ve always found international exchanges to be both personally and professionally enriching, and WEAAD 2009 was certainly no exception. It was a chance to meet dynamic new colleagues and renew ties with the old. So, when it's time to start gearing up for WEAAD 2010, you can definitely count me in.

Secrets in America: New Documentary Focuses on Elder Financial Abuse

By the time David Jones emailed me to say that “our” film was finished, I’d forgotten all about it. It was well over a year since I’d met Stanislaus County’s Communications Director and it had taken that long to secure the funds and produce the half-hour long Secrets in America. With $12,000 in grants from the Stanislaus Community Foundation and Kaiser Permanente, David used friends and volunteers to shoot footage from San Francisco to Washington, D.C.

Despite the delays, the film is very timely, covering issues like predatory lending, lottery scams, and the sale of overpriced or worthless deferred annuities and reverse mortgages.

The film packs a powerful “neighbors looking out for neighbors” message through the account of Telvina Dias, who let two home repair cons into her home and was intimidated into writing them a check for a $2,500. Dias is exuberant as she describes how police, called by vigilant neighbor Jim Ross, nabbed the crooks. They’d approached Ross earlier, and he’d been watching Dias’ ordeal unfold. The film also emphasizes the importance of families looking out for elderly members and elders staying engaged with friends.

Actor Doris Roberts, best known for “Everybody Loves Raymond” makes an appearance. Roberts has participated in other Stanislaus County anti-abuse events and testified before Congress about elder abuse and ageism. You may recognize some other familiar faces.

One hundred DVDs were produced for senior centers, retirement communities, churches, and other venues; and nonprofit organizations can get copies for free. David also plans to pitch the film to PBS affiliates. To view it, click Secrets in America.

New Cal Law Allows for Video-Conferencing in Elder Abuse Cases

Among California’s new laws that went into effect on Jan 1 was AB 1158, which allows for the use of two-way video conferencing to examine witnesses who can't come to court. The new law may be a first step in tackling some of the obstacles posed by the 2004 US Supreme Court’s Crawford v. Washington decision, which was a major setback in the prosecution of elder abuse cases (even though the case didn’t involve elder abuse).

Here's the issue. Under the Sixth Amendment to the US Constitution, persons accused of crimes have the right to confront their accusers at trial. It limits the use of “hearsay,” or second-hand accounts made outside of courts, which often take the form of police officers conveying statements made by victims immediately after crimes are committed. These statements are particularly important in domestic violence and elder and child abuse cases because victims often recant their statements, and, under certain circumstances, their immediate responses are considered to be more reliable than those they make later. In elder abuse cases, there's the additional problem of victims not being able to come to court because they're ill, debilitated, or have relocated.

In the 1990s, advocates for victims of domestic violence, child abuse, and elder abuse sponsored laws allowing victims to avoid testifying in court in some situations. These included a 1999 elder abuse law (AB 526), which allowed juries to hear videotaped statements to police from elderly or incapacitated adults who were unable to come to court.

The Crawford case involved Michael Crawford, who was convicted of stabbing a man he believed had tried to rape his wife. The Supreme Court barred the tape-recorded, eyewitness account of the stabbing by Crawford’s wife, ruling that “testimonial statements” made out of court cannot be used at trial unless the person who made the statement is available for cross-examination. Statements are considered “testimonial” if they are knowingly made to law enforcement or government agents associated with law enforcement and provide evidence for later use in court. The court did not define the various types of testimonial statements that are covered, and subsequent cases are putting the definition to the test.

Still, the decision has had tremendous impact. It's restricted the use of evidence that was previously admissible and has been used to overturn convictions under child abuse and domestic violence laws. A state appeals court in San Jose used it to overturn California’s 1999 videotaping law.

Two-way video conferencing allows for victims who can't come to court to testify while protecting the rights of the accused to confront them. However, the use of "virtual confrontation" has been challenged in other settings, and it remains to be seen how it will be used in elder abuse cases. AB 1158 was sponsored by the San Francisco District Attorney and supported by the California District Attorneys Association, the California Senior Legislature, and the California Alliance for Retired Americans.

Mental Health Services for Vulnerable Elders

Many of us in California were disheartened to learn that as part of Governor Schwarzenegger’s plan to balance the budget, he wants to raid Proposition 63 funds. Prop 63 was a 2004 ballot initiative that imposed a 1% tax on millionaires to fund mental health services. The governor wants to use the funds to pay for existing programs instead of developing new services, something the initiative specifically forbids.

But according to Senate President pro Tem Darrell Steinberg, who championed Prop 63, the governor’s plan is "a non-starter." As a ballot initiative, any changes to Prop 63 have to be approved by the voters, and since the bill passed by a comfortable margin in 2004, that’s not likely to happen.

Those of us on the Archstone Advocacy Work Group hope that's the case. The group consists of reps from agencies that receive funds from the Archstone Foundation as part of its Elder Abuse Initiative. After hearing that few advocates for the elderly were participating in statewide Prop 63 “stakeholders” meetings, which set priorities for how the new money can be used, or applying for funds, our group produced a Fact Sheet that describes vulnerable elders’ mental health service needs and suggests ways that elder advocates can get involved.

The Fact Sheet is posted on the Web site of the Center on Excellence in Elder Abuse and Neglect. See Prop 63 and Elder Abuse.

Readers are welcome to use the Fact Sheet in California and beyond.

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.

Getting Our Minds (and Laws) Around Undue Influence

Undue influence. We know it when we see it, and those of us in elder abuse prevention see it often: elders who are ill, lonesome, isolated, impaired, or grieving being persuaded to give away assets, sometimes homes and life savings, to new acquaintances, suitors, family members, or even cunning cons in other countries. They use various devices--trust documents, powers of attorney, wills, sweepstake offers, bogus charities, or quickie marriages--but the results are the same: getting vulnerable elders to do things they wouldn’t have done otherwise.

Still, defining undue influence for legal purposes hasn't been easy. Maybe it’s because for some, the very prospect of outlawing persuasion or protecting people from being wooed is offensive. After all, in our consumer culture, we’re used to being lured and won over. We romanticize risk taking, gambling on long shots, or taking leaps of faith that those charming suitors really do love us.

When does persuasion become undue influence? The answer is when powerful individuals use unfair means: deception, exploiting disabilities, fostering dependency, playing on fears, emotional blackmail, and isolating elders from those they trust. But how do we set the bar in defining and measuring undue influence? What circumstances should we include and what penalties should apply? These are questions that advocates and policy makers in California are tackling in earnest these days. Here are updates on three initiatives.

Senate Bill 1140 Passes
Written by San Francisco Attorney Steve Riess and authored by Senator Darrell Steinberg, Senate Bill 1140 adds undue influence to the definition of financial abuse in California’s elder and dependent adult abuse civil protection code, providing new remedies to vulnerable elders and "fundamentally changing the obligations of those who contract with them."

In his rationale for the bill, Riess points out that we already have laws on the books that address undue influence, but they’re inadequate for elder financial abuse. Establishing that someone exercised undue influence under current law simply serves to negate contractual consent and rescind agreements, which, in non-legalese, means that it stops improper transactions. It doesn’t allow for damages or lawyers’ fees so abusers have little incentive to stop doing what they’re doing and lawyers have little incentive to take undue influence cases. By including undue influence as a basis for elder financial abuse, Senate Bill 1140 allows for the recovery of damages, attorneys’ fees, and court costs, making it more feasible for victims to initiate lawsuits and, hopefully, making would-be perps think twice. For more on the bill, see: The New Elder Financial Abuse Law: Big Changes Are Coming!

It won’t be long before the new law is put to the test. In a December 2007 New York Times article, Charles Duhigg reported that more than 760 civil lawsuits claiming elder abuse, mostly financial abuse, had been filed in the previous year, a 98% increase from five years earlier. Other states are seeing similar trends.

SB 1259 Fails
On the criminal side, SB 1259 attempted to add undue influence to the definition of elder financial abuse in California’s elder abuse criminal code (Penal Code §368). Sponsored by the California District Attorney’s Association, the bill was a response to People v. Brock, in which Norman Roussey, who had a cognitive impairment, lost his home and nearly $700,000 to his “friend” Ronald Brock who worked in the law firm that was handling Roussey’s deceased mother’s estate. (See Undue Influence is Not a Crime and Postscript on Elder Abuse is Not a Crime. The prosecutor in the case, Melissa McKowan, successfully argued that Brock had committed theft by undue influence, and Brock was sentenced to five years in prison and ordered to return the money. Later, however, an appellate court overturned the conviction. While acknowledging that Brock’s conduct was “manipulative” and “oppressive” and that Brock knew that Roussey was cognitively unable to resist his demands, the court ruled that the conduct wasn’t a crime in California. SB 1259 would have made it one by amending Penal Code §368 to include “criminal undue influence,” which it defined as:

The exploitation by a person of a known physical or mental infirmity or other physical, mental, or emotional dysfunction in a vulnerable elder or dependent adult for financial gain by one of the following methods:

• Using a position of trust or confidence or using any real or apparent authority over the vulnerable elder or dependent adult for the purpose of obtaining an unfair advantage over the vulnerable elder or dependent adult.

• Knowingly taking an oppressive and unfair advantage of a vulnerable elder or dependent adult's weakness of mind, necessities, or distress.

SB 1259 provided for a defense if the accused believed that their victims had the capacity to consent to the transactions. But for the defense to apply, the transactions had to have taken place “openly.” If defendants attempt to conceal their actions, the defense wouldn’t fly.

SB 1259 also upped the ante for repeat acts of financial elder abuse by allowing for sentence enhancements for prior convictions. It also would have expanded the scope of persons protected by broadening the definition of dependent adults and elders. Under the expanded definitions, protected parties would have included all elders (as opposed to only those with disabilities) and adults with physical as well as cognitive impairments.

The bill’s primary opponent was the California Public Defenders Association, which objected on the grounds that:

1. The proposed definitions were too broad and paternalistic in including physically disabled adults and seniors with no significant cognitive disabilities.

2. Given the budget shortfall and prison overcrowding, any legislation that increases penalties is ill timed and poor public policy.

3. The defense requirement to prove that financial transactions were done "openly" isn’t dealt with adequately. “Openly" is subject to interpretation and the law isn’t clear about who should interpret it.

For more, see Analysis of SB 1259.

Prohibited Transfers (Probate Code §21350)
The California Law Revision Commission recently released a report and recommendations about the "prohibited transfers" provisions in the state’s Probate code, which deal with undue influence. (The Commission, which includes reps from both houses of the state assembly and the executive branch, studies “defects and anachronisms” in California law and recommends legislation reforms.)

The prohibited transfers statute was originally enacted in response to a high- profile case involving an estate-planning attorney who named himself and members of his family as fiduciaries for, and beneficiaries of, clients’ estates. The prohibited transfer law prevents certain professionals from inheriting assets from clients unless they can demonstrate that they didn’t use fraud, menace, duress, or undue influence to get them. The law covers “care custodians,” essentially saying that those who receive last-minute bequests from dependent adults are presumed to have exercised undue influence, even if they were close friends of the deceased. There are several exceptions, including gifts to family members and gifts that have been reviewed by independent attorneys who certify that they aren’t the product of menace, duress, fraud, or undue influence.

The prohibited transfers statute was challenged in Bernard v. Foley, a case involving 97-year-old Carmel Bosco, who left her half million-dollar estate to two friends who cared for her during the last months of her life. While under their care, Bosco amended her living trust several times, giving more and more to the caregivers until, a few days before her death, she made them the beneficiaries of her entire estate. Bosco’s family, the original beneficiaries, sued, claiming that the caregivers had exerted undue influence over Bosco while she was gravely ill and heavily sedated. The case got down to whether the friends were in fact “care custodians,” and therefore, covered under the prohibited transfers law. The caregivers claimed that they were just “performing acts of kindness on a purely volunteer basis as good friends often do for others.”

The court found in the caregivers’ favor but the family appealed, and the appeals court reversed the decision, stating that “a caregiver may be a personal friend, and in fact, personal friends are uniquely positioned to unduly influence the elderly for whom they care.” It affirmed that the caregivers were covered under Probate Code §21350 and had failed to satisfactorily rebut the statutory presumption of undue influence.

Despite the finding, the statute has continued to raise concerns and questions, including:

• How should caregivers or caretakers be defined? Should the law differentiate between long and short–term caregivers and between those who are paid and unpaid?

• Who needs protection and how should “dependent adult” be defined?

• Will the law inhibit old friends or acquaintances from assisting elders for fear of losing any transfers that the elder may make?

• Should the law exempt families, the most common offenders in financial abuse cases?

These were among the concerns the Commission was charged to consider. Specifically it was asked to review “the proper scope of the statutory presumption of fraud and undue influence that applies when a “dependent adult” makes a gift to that person’s “care custodian.”

The Commission concluded that the care custodian presumption is broader than it needs to be, protecting people who are not necessarily subject to any heightened risk of undue influence (adults with physical disabilities) and gifts to care custodians that do not seem to be “unnatural” (i.e., gifts to friends and other volunteer caregivers). The Commission is further proposing to narrow the definition of “care custodian” to only include caregivers who provide services for remuneration (i.e., volunteers would not be included). A copy of the Commission’s report and tentative recommendations is available on its Web site at online at Recommendations. The minutes of the Commission’s meeting where the recommendations were discussed are also available online at Minutes.

Definitional Debates
Like other legislation initiatives, including SB 1259 (described above), the effort to revise Probate Code §21350 essentially gets down to how terms like “dependent and elder adults” and “caregivers” are defined. Although the definitional debates in our field may have been academic in the past, our failure to resolve them has become a barrier to effective public policy. Not only do we need to reach agreement within our own network, we're going to have to start working with those other stakeholders with whom we’re increasingly coming into conflict. These include the California Public Defenders Association, which helped kill SB 1259, and Protection and Advocacy, Inc., an advocacy group for people with disabilities in California, which is actively working with the California Law Commission on Probate Code §21350. Strangely, advocates for the elderly in California are increasingly being branded by as ageist in these conflicts owing to the broad definitions we use in defining elder abuse (unlike many states that limit protections to “vulnerable and dependent elders,” many of California’s elder abuse laws cover all elders). Surely, we could resolve some of these conflicts through upfront advocacy and consensus building. One would hope that our common interests exceed our differences.