The numbers are startling. One in 10 adults age 60 and older and living at home is suspected to have suffered from abuse including physical, psychological, verbal, sexual, financial and/or neglect.[i] Without clear ethical guidelines or mandatory reporting laws in New York State, many attorneys may not know the most practical and effective ways to identify, or respond to, suspected abuse involving an older adult client.
Trauma-informed screening questions that ask older adults about personal safety have been successful in helping attorneys and others to identify victims of elder abuse. The “HELP” (Helping Elders through Litigation and Policy) Clinic at Brooklyn Law School, a collaboration between the Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale and several legal services agencies, focused its Fall 2015 semester on working with several legal service agencies to develop elder abuse screening questionnaires. The clinic continues to train and mentor law students serving elders through litigation and policy help. This article describes how attorneys can integrate screening into their own practices and offers elder abuse prevention and intervention tips, strategies, and resources.
Attorneys are uniquely well-positioned to identify and assist in cases of elder abuse. As fiduciaries and trusted advisors, attorneys are often privy to their clients’ finances and personal relationships, so the red flags of elder abuse, such as forged signatures, large bank withdrawals, unusual changes made to a client’s will, and visible cues such as physical injuries, often become apparent. An effective way for attorneys to ask clients personal and somewhat difficult questions about safety is to integrate them into the standard client intake process, which provides insight into a client’s life and legal goals.
In most cases of elder abuse, a family member is the perpetrator.[ii] It is no surprise, therefore, that shame and fear are two common emotions elder abuse victims experience. Sometimes the perpetrator is also a caregiver, which could hinder an older adult from reporting abuse because of the older adult’s medical, physical, or financial dependence on the caregiver. The nature of the caregiver’s role in the older adult’s life can also cause fear of retaliation and apprehension about severing the relationship.
The hallmark of proper elder abuse screening is how it’s conducted: The client must be interviewed alone in an appropriate place in which the client feels safe. Private counseling gives a client the opportunity to speak with an attorney without the undue influence or pressure that an abusive family member or caregiver may exert. During this conversation the attorney should assure the client that only the client’s interests will be represented. To further enhance a client’s feelings of safety and security, the attorney can ask the client who he or she would like to be involved in future client conferences and conversations, while making sure the client knows that any information exchanged privately will remain confidential. This assurance also provides clients with an understanding that even if he or she is not prepared to disclose abuse initially, the attorney will almost always be required to keep a disclosure confidential in the future.[iii]
Screening for Elder Abuse
Screening questions should be clear, simple, culturally sensitive, neutrally construed, and non-judgmental. It is important to take cultural norms such as patriarchy, filial piety, and attitudes toward government agencies into consideration when asking questions and understanding responses. Questions can be directed for a specific response or phrased to elicit an open-ended conversation.
- How are you managing your money?
- Does anyone prevent you from using a telephone or accessing your mail or computer?
- Has anyone physically harmed or threatened to harm you?
- Has anyone touched you without your consent?
Each of these screening questions has its own benefits and appropriate application during screening. It is often helpful to say that safety-related questions are going to be personal to ensure that clients feel as comfortable as possible.
How are you managing your money?
Financial abuse can lead to depression, hopelessness, and even suicide. It also can reduce resources available for proper housing, good nutrition, medication, and healthy activities. The impact of financial abuse on an older adult’s physical, psychological, and financial wellbeing can affect legal work for which the attorney has been retained, highlighting the importance for an attorney to be aware of financial abuse and assist when necessary.
Victims of financial abuse lose $1.5 billion each year in New York State alone.[iv] Signs of financial abuse can be elusive, however, attorneys may be in the best position to identify this because of their fiduciary role. Attorneys may recognize and be privy to new powers of attorney, recently opened joint bank accounts, and additional lines of credit. They also might spot fraud and forged signatures. Noting such changes can potentially save older adult clients from losing their financial independence and life savings.
Attorneys could also become aware of perpetrators who prey upon and scam isolated, vulnerable older adults by requesting that money or personal information, such as a Social Security number, be sent immediately to help a “charity” or to pay a “debt.” This information is often used to steal the client’s identity. The Federal Trade Commission, the Consumer Financial Protection Bureau, and other groups have created materials for professionals and older adults that explain prevalent scams, prevention tips, and step-by-step instructions for victims of scams and identify theft.
Does anyone prevent you from using a telephone or accessing your mail or computer?
Isolation is a risk factor for elder abuse. Perpetrators often make it impossible for victims to reach out to friends, family, and professionals who could intervene. Attorneys are ideally poised to ask about access to various forms of communication because of the need for ongoing collaboration between the attorney and client. Legal work will be difficult, if not impossible, to accomplish if the older adult client is unable to access mail or a computer, or to use a telephone to speak to the attorney.
Has anyone physically harmed you or threatened to harm you?
Physical abuse is defined as the intentional use of physical force that results in acute or chronic illness, bodily injury, physical pain, functional impairment, distress, or death, according to a recent study conducted by the Centers for Disease Control and Prevention (CDC). State law definitions vary, and with no unified definition of elder abuse or types of elder abuse, the CDC surveyed multiple definitions and offered the most comprehensive description of each type of abuse. [v] Unlike financial or psychological abuse, signs of physical abuse—such as bruising, burn marks, and pattern injuries—can be more easily noticed and are certainly worth asking about. Ninety percent of older adults who sustained bruising from physical abuse were able to describe the abuse even when they suffered from a cognitive impairment.[vi] This is why it’s so important to ask older adult clients directly about bruises and other apparent physical injuries, even if capacity is in question.
Has anyone touched you inappropriately without your consent?
In many ways, sexual abuse may be the most difficult for a victim to disclose. Including a question about sexual abuse lets clients know the attorney is open to listening and assisting, as appropriate. There also are other ways for attorneys to gather information or be alerted that sexual or any other form of abuse may be occurring.
Red Flags for Suspected Abuse
Verbal cues such as hesitation and stammering when answering questions about personal safety may be signs that a client is fearful of revealing information. Inconsistent stories, defensiveness about relationships, and nonsensical explanations may also be signs that the client is fearful or does not want to disclose information. Nonverbal cues may include lack of eye contact, restlessness, shaking, fidgeting, or physical withdrawal from a family member or caregiver. In addition, if an attorney has had more than one meeting with a client, noting and asking about changes in behavior patterns and reactions to caregivers can be helpful in identifying abuse. When the attorney picks up on verbal or non-verbal cues that the older adult’s wellbeing may be in jeopardy, the attorney should ask follow-up questions, offer resources, and schedule a follow-up appointment. Follow-up questions can include:
- If someone is assisting you with money management, do you trust that person? Are you receiving the help that you need?
- If someone prevents you from accessing your mail, who is this person in relation to you?
- What, in particular, are you prevented from accessing?
- If you have been physically harmed, can you tell me who has harmed you? Are you afraid to return to your home because of this?
- If someone has touched you inappropriately, can you tell me who has touched you? Are you afraid to return to your home because of this?
When an Older Adult Client is Afraid to Return Home
Any professional working with older adults may have a client who discloses fear of returning home. If there is imminent risk of harm, police should be contacted with the client’s permission. Trusted family members and friends of the older adult client can be tapped as resources and sources of support. Attorneys should consider involving a client’s primary care physician or a local hospital if there is uncertainty about an older adult’s physical or mental health. It is important that attorneys be aware of the health-related needs of an older adult client, as these may warrant hospitalization if food, medications, or assistive devices are being withheld.
If it is determined that it is unsafe for an older adult client to return home due to abuse, shelters for elder abuse victims may be of assistance in some communities. The Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale opened in 2005 as the nation’s first elder abuse shelter focused on serving victims with skilled nursing needs, including dementia care, that has the capacity to care for any range of physical or cognitive impairment in the older adult. Located within the Hebrew Home at Riverdale, a large continuum of care community in the Bronx, the Weinberg Center is able to provide short-term, and long-term as appropriate, placement for victims of elder abuse including medical care, therapeutic activities, legal, and social services. Since opening, the Weinberg Center created the SPRiNG Alliance (Shelter Partners Regional National Global) to assist other organizations in starting their own elder abuse shelters. There are now two shelter programs in upstate New York: Council on Elder Abuse Shelter Network in Buffalo, N.Y., and Lifespan’s Monroe County Elder Abuse Shelter in Rochester, N.Y.[vii] Additionally, 13 other elder abuse shelters have opened throughout the United States. More information about the SPRiNG Alliance and shelter replication sites can be found at www.springalliance.org.
Reporting Elder Abuse
Attorneys in New York State are not mandated to report elder abuse. Therefore, protecting and understanding the attorney-client relationship and an older adult’s right to self-determination are the pillars that guide the attorney’s advice and actions when intervening in cases of elder abuse. Adult Protective Services (APS) is a government agency that receives reports of mistreatment for adults aged 18 and older and is the only agency that is required to report suspected crimes to law enforcement. Reports to APS can be made anonymously, but still must be done only when the client has consented to the referral, unless the following factors are met under the New York Rules of Professional Conduct.
Attorneys are permitted to reveal confidential information where the “disclosure is impliedly authorized to advance the best interest of the client…” and are allowed to use confidential information where it would “prevent reasonably certain death or substantial bodily harm”[viii] Furthermore, if the attorney believes that the client is: 1) at risk of “substantial physical, financial, or other harm,” 2) unable to act in his/her own interest, 3) believed to have diminished capacity, an attorney is permitted to take “reasonably necessary protective action.”[ix]
Involving a third party, such as a law enforcement or a social services agency, can escalate an abusive situation. If the attorney believes that circumstances are sufficiently severe as to warrant a report to Adult Protective Services, law enforcement, or any other entity that can respond, the attorney must also bear responsibility for thinking through the possible consequences of such reporting. For instance, if the client is living in a dangerous situation, the attorney must ensure the client has a safe place to go once a third party becomes involved. If the attorney assists a client in cutting off financial access to a person who is exploiting the client, the attorney must also talk with the client about what to do in the event that the perpetrator becomes angry and lashes out upon learning that financial access has been cut off. Fear of retribution may prevent a client from revealing abuse, particularly when the client is physically or financially dependent on the abuser. However, with careful and thorough planning, the attorney can play a critical role in intervention and protection of an older adult client’s wellbeing, financial future, and overall safety.
Through vigilance and by using effective screening questions, attorneys may have the ability to prevent or stop the cycle of abuse. If elder abuse is suspected, the New York State Bar Association Elder Abuse Committee has compiled resources available for use by attorneys and clients, which can be accessed online at http://www.nysba.org/ElderAbuseResourceGuide/The Weinberg Center for Elder Justice at The Hebrew Home at Riverdale has also compiled a variety of resources and screening materials available for distribution to clients and use at https://www.weinberg-center.org/.
The HELP Clinic
The Help Clinic has also successfully assisted various agencies in New York City in integrating screening into their intake processes. VOLS (Volunteers of Legal Service-Elderly Project) is now utilizing a six-question screen. CAP (Sanctuary for Families Courtroom Advocates Project) is asking each domestic violence victim it approaches in Family Court whether an older adult who might be affected by the abusive situation lives in the home. Brooklyn Legal Services Elder Law Unit asks a series of questions that screen for elder abuse. The Foreclosure Prevention Unit Volunteer Lawyer Project is screening adults as well. In addition, the American Bar Association Senior Lawyers Division Elder Abuse Prevention Committee created a scam prevention brochure and poster that are available for distribution at https://www.americanbar.org/groups/senior_lawyers/committees/elder-abuse-prevention-committee. Long-term care institutions, rehabilitation centers, and assisted living providers should consider screening their patients for elder abuse. Every new long-term care admission and sub-acute patient who comes through the doors of the Hebrew Home at Riverdale is screened for abuse using the WC-RAPS (Weinberg Center Risk and Prevention Screen).[x] This semester, HELP Clinic students, working with Patricia Fay, an associate professor in the doctoral programs in physical therapy at Rutgers University, are considering how physical and occupational therapists might effectively screen clients for elder abuse. Intervention can and should come from a multitude of professions.
If you would like assistance integrating elder abuse screening within your practice or agency, please contact the Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale at www.weinberg-center.org.
[i] Lifespan of Greater Rochester, Inc., et al., Under the Radar: New York State Elder Abuse Prevalence Study (May 2011).
[ii] Lachs, M., & Pillemer, K. (2015). Elder abuse. New England Journal of Medicine, 373, 1947–56. doi: 10.1056/NEJMra1404688
[iii] N.Y. Rules of Professional Conduct Law § 1.6 (McKinney 2017), which are similar to, but not identical to the American Bar Association’s Model Rules of Professional Conduct. Lawyers should be thoroughly knowledgeable of the rules that apply in their own states.
[iv] Yufan Huang & Alan Lawitz, The New York State Cost of Financial Exploitation Study (June 15, 2016).
[v] Ctrs. for Disease Control and Prevention, Elder Abuse: Definitions, Ctrs. for Disease Control and Prevention (June 8, 2017), https://www.cdc.gov/violenceprevention/elderabuse/definitions.html.
[vi] National Center on Elder Abuse, Bruising in Older Adults: Accidental Bruising and Bruising from Physical Abuse (2014), https://ncea.acl.gov/resources/docs/Research-Translation-bruising-NCEA-2014.pdf.
[vii] The SPRiNG All., Our Partners, http://www.spring-alliance.org/#! (last visited July 19, 2017).
[viii] N.Y. Rules of Professional Conduct Law § 1.6 (McKinney 2017), which are similar, but not identical, to the American Bar Association’s Model Rules of Professional Conduct. Lawyers should be thoroughly knowledgeable of the rules that apply in their own states.
[ix] N.Y. Rules of Professional Conduct Law § 1.14 (McKinney 2017), which are identical to the American Bar Association’s Model Rules of Professional Conduct. Lawyers should be thoroughly knowledgeable of the rules that apply in their own states.
Development and Spanish translation of the Weinberg Center Risk and Abuse Prevention Screen (WC-RAPS)Mildred Ramirez Ph.D., Joy Solomon J.D., Marlene Riquelme M.P.H., Brooke Santoro L.M.S.W., Daniel Reingold M.S.W., J.D., Jeanne A. Teresi Ed.D., Ph.D. Journal of Elder Abuse and Neglect.