The collection of definitive data on the number of older Americans subjected to abuse, neglect, or exploitation is an ongoing challenge. There are three major reasons for the data controversy: under-reporting, lack of reliable national data collection methods, and research study limitations. Based on the most current studies, the National Center on Elder Abuse estimates that for every report of abuse, 24 go unreported. See Lifespan of Greater Rochester, Inc., Under the Radar: New York State Elder Abuse Prevalence Study 50 (2011). Even when victims are seen in clinics and emergency rooms, injuries often go unrecognized as abuse or neglect. Consequently, elder abuse often is referred to as a “hidden” crime. Yet studies indicate a high prevalence of elder abuse—according to the 2009 National Elder Mistreatment Study, 11 percent of study participants reported at least one form of mistreatment, and that excluded financial exploitation.
Justice system data on elder abuse incidents, arrests, prosecutions, and convictions remain problematic. Law enforcement and prosecutors without specialized training may miss signs of elder abuse and fail to fully comprehend evidence of financial exploitation when it involves family members. In states where “vulnerability” of a victim must be proven to make a charge of “elder abuse,” cases are often prosecuted under other criminal charges that do not require the prosecutor to make a case of “vulnerability.” In recent years, the federal government has highlighted cases of elder abuse and neglect that occur in the context of adult guardianships and conservatorships. But on a national scale, most state courts do not have the capacity to report the number of open guardianships and conservatorships, let alone the incidents of abuse that occur under such relationships. To date, justice system data on elder abuse are incomplete and unreliable. In the fight against elder abuse, however, the following are important resources.
NCSC Center for Elders and the Courts
In 2008, with funding from the Retirement Research Foundation of Chicago, the National Center for State Courts (NCSC) created the Center for Elders and the Courts (CEC), http://eldersandcourts.org. The CEC’s mission is to “serve as the primary resource for the judiciary and court management on issues related to aging.” Its resources include the following.
CEC Elder Abuse Toolkit for Prosecutors
The prosecutor toolkit includes Basic Tools and Strategies, Proposed Performance Measures, and the Prosecution Guide to Effective Collaboration on Elder Abuse.
CEC Elder Abuse Toolkit for Courts
The court toolkit includes a judicial benchcard on Identifying and Responding to Elder Abuse, which can be modified to reflect state statutes, court remediation and management tools, and local resources; Proposed Performance Measures for Courts for measuring effectiveness in handling elder abuse cases; and the Court Guide to Effective Collaboration on Elder Abuse, which suggests ways multidisciplinary partnerships can assist courts in effectively responding to individual cases and in improving community responses to elder abuse.
Elder Abuse Curriculum for State Judicial Educators
This three-part curriculum was designed to be adapted for state laws and court structures and to be delivered by state judicial educators in a three- to four-hour workshop addressing the physiology of aging, identification of elder abuse and neglect, and crafting of appropriate court responses.
CEC Online Elder Abuse Course: Justice Responses to Elder Abuse
This online course, premiering in spring 2014 and available at no cost upon registration, addresses aging in America, elder abuse awareness, special issues and tools for courts, and the application of learning tools to case scenarios.
CEC Links to State Resources
The CEC website also includes state-by-state links to elder abuse laws, probate codes, and state task force activities; a listserv for judicial officials and court staff with interests in adult guardianships and conservatorships; information on key legal issues regarding aging, guardianship, and improving access to the courts for older persons; and a series of 10 Tips videos featuring subject matter experts addressing a variety of topics.
ABA Commission on Law and Aging
In accordance with its mission of strengthening and securing the legal rights, dignity, autonomy, quality of life, and quality of care of older people, the ABA Commission on Law and Aging, http://www.americanbar.org/groups/law_aging.html, offers many useful resources that courts and other justice system partners may use to better address elder abuse. Some of its most important resources include the following.
- Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse is a benchmark in the field almost 20 years after the initial publication.
- A Multi-Site Assessment of Five Court-Focused Elder Abuse Initiatives is an evaluation report demonstrating how court-focused elder abuse initiatives can enhance access to justice for victims and benefit courts and other agencies.
- “The Role of Undue Influence in Elder Abuse,” http://www.nclc.org/the-role-of-undue-influence-in-elder-abuse/event-details.html, is a National Consumer Law Center webinar that discusses the key legal concept of undue influence, which makes the prosecution of these cases particularly challenging.
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings, a handbook for judges produced in partnership with the American Psychological Association, is one of a series of three guides on capacity issues. Similar handbooks on capacity are available for lawyers and psychologists.
- Good Guardianship: Promising Practice Ideas on Court Links for Agencies on Aging, Adult Protective Services, and Long-Term Care Ombudsman offers practical ways to build collaborative networks.
- Court Volunteer Guardianship Monitoring Handbooks provide information that courts can use to develop guardianship monitoring programs, which will improve the detection of abuse, neglect, and financial exploitation.
- Managing Someone Else’s Money is a series of guides produced on behalf of the Consumer Financial Protection Bureau to address fiduciary duties for agents of powers of attorney, court-appointed guardians, trustees, and government fiduciaries (Social Security representative payees and U.S. Department of Veterans Affairs fiduciaries).
The ABA Commission on Law and Aging’s website also includes resources on state laws related to elder abuse and adult guardianships. For example, tables that summarize state legislation amending adult protective services law are updated annually.
National Probate Court Standards
The revised National Probate Court Standards adopted by the National College of Probate Judges (NCPJ), http://www.ncpj.org, in November 2012 are “intended to promote uniformity, consistency, and continued improvement in the operations of probate courts[,] . . . bridge gaps of information, provide organization and direction, and set forth aspirational goals for both specialized probate courts and general jurisdiction courts with probate jurisdiction.” The Standards recommend a four-part approach to protecting the individuals and estates under a probate court’s jurisdiction from exploitation and abuse: (1) careful selection of fiduciaries (including guardians and conservators), (2) the provision of training to those appointed in order to ensure that they understand their responsibilities and how to carry them out, (3) periodic reports and accountings, and (4) active monitoring and enforcement of court orders. They also urge that fiduciaries be required to post a surety bond proportional to the size of the estate to provide additional protection against financial exploitation.
Third National Guardianship Summit
The 2011 Third National Guardianship Summit was sponsored by the 10 organizations comprising the National Guardianship Network (NGN) and 11 diverse co-sponsors to advance good guardianship/conservatorship policy and practice in the United States. NGN members are the AARP; ABA Commission on Law and Aging; ABA Section of Real Property, Trust and Estate Law; Alzheimer’s Association; American College of Trust and Estate Counsel; Center for Guardianship Certification; National Academy of Elder Law Attorneys; National Center for State Courts; National College of Probate Judges; and National Guardianship Association.
Through a consensus process, Summit participants developed a set of practice standards of excellence for guardians and conservators and a series of action recommendations for courts and other public and private entities involved in guardianship/conservatorship. See http://epubs.utah.edu/index.php/ulr/article/view/833/642. Like the National Probate Court Standards, the Summit recommendations urge courts to provide “on-going multifaceted education and assistance” to guardians, actively monitor guardianships/conservatorships, and review reports and accountings in order to ensure the well-being of persons under guardianship and their estates.
The Summit recommended that states create Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS). In 2013, the NGN, with limited funding, awarded grants to the highest state courts in New York, Oregon, Texas, and Utah to receive technical assistance to help them establish WINGS. The experience of these initial WINGS groups will help NGN develop a “replication template” for states interested in creating similar networks to consider how adult guardianship is working in the state and which changes could be made to improve the process to benefit both the vulnerable adults affected and the state’s system.
How to Get Started
Learning about the Issue
Responses to this social problem require gathering information about the context in which the issue occurs, the extent to which the problem exists, typical responses of the justice system and social services agencies, and an exploration of how systems can be modified to improve older victims’ lives. The resources noted above offer several opportunities for legal system players to learn about elder abuse. An excellent starting point is NCSC’s spring 2014 online course, “Justice Responses to Elder Abuse,” http://www.eldersandcourts.org/Training.aspx. The course is available at no charge and offers the flexibility and convenience of learning at one’s own pace.
The lack of data means that the true extent of the problem is unknown. For this reason, many efforts begin by collecting information and data from a variety of sources. State and local task forces can be commissioned to determine the number and types of reports reaching the authorities and how those reports are processed through the system. Part of the process should include interviews with agency professionals, especially those from Adult Protective Services and community-based elder services, about older victims’ needs and ways the justice agency can improve responses. Issues related to access to justice for older persons should be addressed, and the NCSC course provides a unit and resources specific to access issues. Additionally, special attention should be given to adult guardianships and conservatorships, due to the vulnerability of incapacitated individuals and the court’s special responsibility to monitor these case types.
Developing Collaborative Efforts
Collaborative efforts can be developed at both local and state levels. NCSC’s collaboration guides, the Court Guide to Effective Collaboration on Elder Abuse and the companion Prosecution Guide to Effective Collaboration on Elder Abuse, offer specific examples of local collaborative efforts in a variety of settings (see http://www.eldersandcourts.org/Elder-Abuse/Toolkits-for-Prosecutors-and-Courts.aspx). According to the Court Guide: “Collaboration among justice system and community partners can help remedy systemic inadequacies and promote efficiencies in handling growing caseloads. When partners collaborate, their energies are spent working productively toward solutions that should result in greater protections for older people and safer communities.” The guides include discussions of which types of stakeholders to include in local task forces. For those who are not familiar with local elder support resources, contacting the local Area Agency on Aging is a good first step. You can find the local agency at the National Association of Area Agencies on Aging, http://www.n4a.org.
At the state level, a number of supreme courts have established task forces and/or standing committees addressing adult guardianships and/or elder abuse. The common thread is leadership from the chief justice and inclusion of stakeholders from a variety of professions. For a summary of task force recommendations, see http://www.eldersandcourts.org/Guardianship/Guardianship-Basics/State-Task-Force-Activities.aspx.
Create Jurisdiction-Specific Tools
In its Elder Abuse Toolkit for Courts, http://www.eldersandcourts.org/Elder-Abuse/~/media/Microsites/Files/cec/Benchcard.ashx, NCSC’s Center for Elders and the Courts offers a generic benchcard that can be modified to meet state laws, court practices, and local resources. The benchcard can provide a foundation for creating a specialized elder abuse response team. It also offers the framework for educating judges and judicial officers on case management and remediation options available in cases that may involve underlying issues of elder abuse and neglect. The acceptance of the benchcard lies in its brevity—it can be printed on one double-sided piece of paper and is easily accessible to judges on the bench during court proceedings. The following questions guide the process of adapting the benchcard to your community:
- How does my state define the crime of elder abuse?
- How can I identify these cases?
- What are my reporting requirements?
- What assessment, remediation, and case management tools can I use to respond to elder abuse cases?
- What resources are available in the community?
Developing tools specific to one’s jurisdiction requires leadership and initiative. It is also a practical exercise that will accomplish the feat of educating members of the justice community and developing a collaboration of local stakeholders.