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Government Elder Abuse Protection

Elder Abuse Protection

Adult Protective Services

All states have laws regarding the physical and sexual abuse of minors. Most states feel it is important to protect vulnerable adults from abuse as well. As a result most states have passed legislation to protect older individuals, mentally incompetent adults and severely disabled adults from abuse. The definition of abuse for adults is typically a little more broad than the definition for minor abuse and might include misconduct such as sexual abuse, emotional abuse, financial exploitation, active and passive neglect by caregivers and self-neglect which means an individual is failing to care for his or her own self needs. Most of these abuse descriptions are self explanatory; however for those who question it, here is an explanation of what active and passive neglect means:

"Active neglect is the willful failure by a caregiver to fulfill care-taking functions and responsibilities. This includes, but is not limited to, abandonment, deprivation of food, water, heat, cleanliness, eyeglasses, dentures, or health-related services. Passive neglect is the non-willful failure to fulfill care-taking responsibilities because of inadequate caregiver knowledge, infirmity, or disputing the value of prescribed services."

Vulnerable adult and elder abuse can occur in any setting and in recent years there has been much concern about the treatment of residents in nursing homes. But most abuse occurs in the home and is most generally perpetrated by family members. Estimates are that 5% to 10% of the elderly and vulnerable adults in America are suffering abuse. The public knows little about elder abuse at home because this kind of treatment goes mostly unreported. It is the so-called "dirty little secret" of caregiving. Workers in this field often refer to elder abuse as being like an iceberg; we are only seeing the tip of it and 90% of it is hidden from our view.

The term commonly used by most states to describe the department responsible for adult abuse is "adult protective services." But not all states use this term. A few states have put adult protective services under their social service, health or human service or children and family services departments. But most states have put protective services under the state aging units described above. This is because the Older Americans Act already requires services for elder abuse and also some funding. In addition, local area agencies on aging are in a good position to report abuse and help with abuse problems. Many states that have elder abuse laws combine legislative funding and other federal funding with OAA funding and give the responsibility for elder and vulnerable adult abuse to the state unit on aging.

State laws require that reports of abuse must be investigated. A few states require anyone aware of elder or vulnerable adult abuse must report it to authorities. Failure to do so can be a criminal offense. But most states only require mandatory reporting from people or professionals who deal with a vulnerable adult population. Here is an example of one state's list of mandatory reporters.

  • Medical professionals
  • Employees of hospitals and home health agencies
  • Social workers
  • Coroners
  • Law enforcement employees
  • Adult or juvenile probation officers
  • Department of Human Resources' employees
  • Clergy
  • Attorneys
  • Mortuary or funeral home employees
  • Employees of the facilities providing care for older persons

Elder Financial Abuse

(This section is taken from a report by the MetLife Mature Market Institute) Mistreatment of older adults is a growing problem with devastating consequences for those affected. New data show that as many as one in ten older adults are victims of mistreatment, with a higher percentage being victims of financial exploitation. Only a small percentage of elder abuse events are ever referred to agencies that can assist victims.

Adult Protective Services (APS) caseworkers are the first responders in most states to reports of abuse, neglect, and exploitation of vulnerable adults, according to the National Center on Elder Abuse at the U.S. Administration on Aging. They respond by investigating the reports, monitoring and evaluating the situation, and, in some cases, arranging for medical care, long-term services and supports, housing, and legal services for their clients.

An AARP Public Policy Institute funded national survey of state units on aging in 2010 found that 24 states plus the District of Columbia reported increased calls for APS in state fiscal year 2010. All of these states named financial exploitation as a cause of increased calls.

The 2004 national Survey of State Adult Protective Services revealed that victims range in estimated numbers from a low of 100,000 to a high of one million a year. These numbers will undoubtedly grow as the number and economic value of seniors continue to grow. Elder financial abuse is commonly linked with other forms of abuse and neglect and threatens the health, dignity, and economic security of millions of older Americans.

It is estimated to cost Americans tens of billions of dollars annually in health care, social services, investigative and legal costs, and lost income and assets. Elder financial abuse is a problem in every community and among all social strata. It is underrecognized, underreported, and underprosecuted. While underreported, the annual financial loss by victims of elder financial abuse is estimated to be at least $2.6 billion dollars

  • Elders' vulnerabilities and larger net worth make them a prime target for financial abuse
  • The increased aging of the population, social changes, and technology advances will lead to a dramatic increase in the opportunity for a growing level of elder financial abuse
  • The perpetrators of elder financial abuse are typically not strangers and most are people who have gained the trust of the older individual, including business and service professionals and family members
  • The victims of elder financial abuse come from all walks of life, and this type of abuse affects elders regardless of gender, race, or ethnicity

In the review of NAPSA/NCEA Newsfeeds from April 2008 through June 2008, the media reported a total dollar value of elder financial abuse of approximately $396,654,700, with the largest percentage of cases involving close associates of the victim - families, friends, caregivers, and neighbors - as the perpetrator of the abuse, accounting collectively for almost 40% of reported cases. Family members, even more so than strangers, financially exploit their elderly relatives.

Although there is no definitive estimate of the number of older adults who experience financial abuse by family members, community service providers and other professionals agree that cases actually reported to authorities represent only the very "tip of the iceberg." Like King Lear, when people in their later years encounter health problems that diminish their physical or cognitive capacities, they usually first turn to family members for assistance and support.

In most situations, family members nobly assume their caregiving role; but in others, family members - sons, daughters, grandchildren, nieces, and nephews - take advantage of the elders' dependencies and become perpetrators of financial abuse. Approximately 60% of substantiated Adult Protective Services (APS) cases of financial abuse involve an adult child, compared to 47% for all other forms of abuse.

The elder's grandchildren and other relatives are almost equally as likely to be perpetrators of financial abuse (9.2% and 9.7%, respectively). In the primary literature, male and female relatives are equally likely to be financial abusers of older adults. However, the media-reported instances revealed that elder financial abuse was 2.5 times more likely to be committed by sons than daughters. Overall, 45 incidents (16.9%) of elder financial abuse described in the media involved immediate relatives.

Family perpetrators often misuse their powers of attorney to steal money from bank accounts, obtain credit cards to make unauthorized purchases, and embezzle large sums of money by refinancing the elder's home, among other examples of financial abuse.

It is unknown what factors contribute to the likelihood of family members financially exploiting their elderly relatives, as no rigorous research has been done. Scholars and practitioners speculate that, like perpetrators of other types of elder abuse, family members who exploit their elders are dependent upon them for their own survival (e.g., shelter and finances) and their actions may be influenced by problems with alcohol, drug abuse, and gambling, and many may suffer from antisocial behavior disorders.

Tensions and inequalities between the elder and family member, perhaps stemming from the relative's dependency and mental health issues, enhance the likelihood of financial abuse. For example, an unemployed adult child living in the home of a parent might be more likely to exploit the elder than an adult child with a steady income and their own place of residence, or one generation abused another and then the "abuser role" is reversed.

Some family members also feel a sense of entitlement and believe that they have a right to the money and material goods their parents or older relatives have accumulated. They often start with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or coercing elders to sign over the deeds to their homes, change their wills, or liquidate their assets. They feel justified in taking "advance" control over assets that they perceive to be "almost" or "rightfully" theirs.

Relatives may believe they are entitled to "reimbursement" for providing care for the elder, or/and may even take preemptive steps to secure assets to prevent their presumed inheritance from being exhausted to pay for the elder's care and medical bills. Approximately 60% of substantiated Adult Protective Services (APS) cases of financial abuse involve an adult child, compared to 47% for all other forms of abuse."

A significant reason for the underestimation of the occurrence of elder financial abuse is the victims themselves do not report elder financial abuse for a variety of reasons. Among the multitude of reasons uncovered, the victims:

  • Do not want government interference in their personal lives
  • Do not want their adult child or other family member going to jail or facing public embarrassment
  • Feel responsible for what has happened
  • Do not realize that they have been financially abused
  • Believe financial abuse is a consequence of "doing business" or taking risks
  • Fear that they will be placed in a nursing home or other facility
  • Do not think anyone will really help them, even if they expose the abuse
  • Worry that the perpetrator might harm them even more
  • Think resolution will come too late to be of any good
  • Believe they will lose even more money to costs of pursuing the financial abuse

Financial and other professionals who deal with elders generally feel a responsibility to help protect their elderly clients from harm or abuse of any kind. However, they often fail to get involved when they suspect elder financial abuse because they:

  • Do not know if they are mandated reporters in some states
  • Do not want to compromise professional relationships (confidentiality vs. mandatory reporting)
  • Are not clear who their client is (older adult or their family members)
  • Are not able to determine the actual mental capacity of their older clients, a determination that affects decisions made by them and on their behalf
  • Want to avoid adverse publicity to themselves and their organizations
  • Do not understand business ethics and practices in relation to elder financial abuse
  • Do not want to incriminate a fellow professional
  • Want to avoid involvement in a criminal investigation and potential lawsuit professionals - who suspects that financial abuse of an elder has occurred should report it.

One of the challenges in describing and documenting financial abuse stems from the variability in terminology between disciplines and the laws in different states. But, when in doubt, it is always better to err on the side of caution and report suspected financial abuse to the appropriate agencies such as Adult Protective Services, a law enforcement agency, or compliance department of the financial institution. Reports can be made confidentially and the reporting person is protected from civil and criminal liability.

Successful prevention of elder financial abuse involves multiple strategies. There are a variety of actions individuals, family members, financial service professionals, businesses, and organizations can do to help protect elders from getting tangled in the web of elder financial abuse. Older adults themselves can take several precautions to avoid falling prey to financial abuse. Such actions include:

  • Keep belongings neat; keep track of possessions; open and send your own mail; direct deposit Social Security and other checks; complete and sign your own checks whenever possible; use an answering machine to screen calls and do not provide personal information over the telephone.
  • Stay Informed Consult with an attorney about future plans, including a power of attorney; consult with an attorney about caregiving arrangements; review your will; know where to go if you suspect abuse; ask for help from police, from employees at a bank, from Adult Protective Services, if needed.
  • Stay Alert Do not leave items of value out in the open; do not sign any document unless someone you trust reviews it; do not be left out of decisions about your finances.

Families, particularly those who find themselves in a caregiving role, also need to be aware of situations that place their older loved ones at risk for financial abuse. Family members should periodically inquire about their older family members' financial resources and perceived limitations that may stem from their financial situation. They also need to keep an eye out for such things as:

  • Unusual worry about finances or fear of an individual
  • Unexplained trembling or crying
  • Changes in communication patterns
  • Any abrupt change in behavior
  • Overpayment for goods and services
  • Unnecessary services or household repairs
  • A set of "out-of-sync" check numbers
  • Increased ATM activity
  • Unusual cash withdrawals from a financial account in a short period of time
  • Missing belongings from the home or room in a facility
  • Excessive time spent on the Internet
  • A signature that seems forged, unusual, or suspicious
  • An unexplained reduction in bank accounts
  • An increase in the number and amount of credit card accounts Broken Trust: Elders, Family, and Finances
  • An abrupt or unexplained change in the power of attorney, will, or other legal or financial documents
  • Sudden transfer of assets to a family member or someone outside the family

Financial service and other professionals, such as bankers and lawyers, are well positioned to contribute to the prevention of elder financial abuse by:

  • Educating clients about their rights and about types of consumer fraud and scams
  • Describing how family members, with the help of legal counsel, can explore options such as financial conservatorship for clients who are frail, mentally ill, or cognitively impaired
  • Encouraging clients or family members to discuss with legal counsel the option to assign financial guardian or power of attorney, as needed
  • If children are of concern, educating clients about the option to assign responsibility to an outside person
  • Generating media attention on the issue of elder financial abuse and its prevention
  • Staying apprised of current trends in elder financial abuse and techniques for stopping it
  • Training appropriate personnel in techniques for interviewing older customers
  • Seeking assistance from other disciplines (social services, medical/nursing personnel, government agencies)
  • Reporting suspected cases of elder financial abuse to local authorities or to their institution's compliance department

Note that some of these steps may not be appropriate for all professionals, and that elder financial abuse situations vary and must be evaluated on a case-by-case basis.