December 01, 2015

Elder Abuse & Financial Exploitation

Lori A. Stiegel

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 37, Issue 2.)

 

Since 1993, the Commission has been at the forefront of efforts to expand and improve the justice system’s role in preventing, detecting, and remedying the devastating problem of elder abuse, neglect, and exploitation (hereafter referred to generally as elder abuse unless otherwise indicated). This year those activities were concentrated in four areas.

Educating and Providing Tools to Justice System Professionals

Pocket Guide on Legal Issues Related to Elder Abuse for Criminal Justice Professionals

As 2014 drew to a close, the Commission published Legal Issues Related to Elder Abuse: A Pocket Guide for Law Enforcement as well as a longer, more detailed Legal Issues Related to Elder Abuse: A Desk Guide for Law Enforcement. Early in 2015 we also produced Template for State Adaptation of “Legal issues Related to Elder Abuse: A Desk Guide for Law Enforcement.” Intended for criminal justice professionals (law enforcement and community corrections officials, prosecutors, and judges), the pocket guide explains legal concepts, documents, and tools that may be misused to commit elder abuse or used properly to remedy it. We printed 23,790 copies of the small, laminated, spiral-bound pocket guide, and all copies have been disseminated. Recognizing that the pocket guide also would be beneficial to adult protective services and victim services professionals, lawyers, advocates, victims, and many others, we made free PDFs of the pocket guide, desk guide, and template available online at www.ambar.org/ElderAbuseGuides. The project was supported by the Bureau of Justice Assistance, an entity of the U.S. Department of Justice.

Elder Investment Fraud and Financial Exploitation Prevention Program – Legal

We continued our efforts to educate lawyers about preventing, detecting, and remedying elder abuse, particularly elder financial exploitation and investment fraud. In partnership with the Investor Protection Trust (IPT) and Investor Protection Institute (IPI), which are nonprofit organizations devoted to investor education and protection, we have implemented an initiative known as the Elder Investment Fraud and Financial Exploitation Prevention Program – Legal (EIFFE—Legal). Its goal is to educate lawyers to:

  • recognize clients’ possible vulnerability to EIFFE due to mild cognitive impairment,
  • identify EIFFE in their clients, and
  • report suspected EIFFE to appropriate authorities.

To do this, EIFFE—Legal is developing and pilot testing in six states a model national continuing legal education curriculum that is intended for practitioners in a wide array of specialties, such as elder law, trust and estate law, family law, general practice, business law, tax law, and administrative and government law.

The first pilot was conducted at the Maine State Bar Association’s Summer Meeting. Approximately 30 people (including Maine’s Attorney General and a judge) attended. Presenters in addition to myself included:

  • Aria Eee, Deputy Bar Counsel for the Maine Board of Overseers of the Bar
  • Victoria Powers, an elderlaw practitioner and shareholder in the firm of Toole and Powers, P.A.
  • Judith Shaw, Securities Administrator for the State of Maine Office of Securities and president-elect of the North American Securities Administrators Association

The second pilot was a featured program at the State Bar of New Mexico Annual Meeting/Bench & Bar Conference. Approximately 70 people attended. Presenters in addition to myself included:

  • Brandon R. Toensing, Senior Regulatory Attorney – Securities Division, New Mexico Regulation and Licensing Department
  • Dr. Rex Swanda, Ph.D., Director of the Neuropsychology Consultation Service and Post-Doctoral Training in Clinical Neuropsychology at the New Mexico Veterans Health Care System
  • Gaelle D. McConnell, J.D., an elderlaw practitioner with the McConnell Law Firm and twice past chair of the New Mexico Supreme Court’s Client Protection Fund Commission

The third pilot was a part of a half-day pre-conference program that the Oklahoma Securities Commission and the Oklahoma Bar Association’s (OBA) new Master Lawyers Section developed for the OBA Annual Meeting. With substantially more time than the previous pilots, this pilot involved additional speakers and content. Approximately 55 people attended. Presenters in addition to myself included:

  • Dr. Robert E. Roush, Baylor College of Medicine and EIFFE Prevention Program Medical
  • Don M. Blandin, President and CEO, Investor Protection Trust and Investor Protection Institute
  • Irving L. Faught, Administrator, Oklahoma Securities Commission
  • Vivian Lee Thoreen, Partner, Holland & Knight LLP, Los Angeles, California
  • A panel of Oklahoma practitioners, policy makers, and prosecutors

The final pilot programs will be held in Iowa, Missouri, and Pennsylvania in 2016.

Program on Elder Abuse for the ABA Solo, Small Firm and General Practice Division

Stephen Rosales, who is the chair of the ABA Solo, Small Firm and General Practice Division (GPSolo) as well as a member of the Commission on Law and Aging, has made elder abuse his cause for his year as GPSolo’s chair. His interest in educating the division’s membership about recognizing elder abuse dovetailed with our initiatives, and so we collaborated to co-present “Rise of Elder Abuse, Neglect, Exploitation, and Clients with Dementia” at the GPSolo 2015 Solo & Small Firm Summit. This was the only substantive CLE program on the Summit agenda. Steve shared war stories from his practice and I talked about ethical issues and challenges, using the Brooke Astor case as a framework. Approximately 70 people attended.

Elder Abuse on the Agenda of the National Aging and Law Conference

Reflecting the growing recognition of the critical role that legal services lawyers and other advocates play in preventing and redressing elder abuse, the program of the ABA-sponsored National Aging and Law Conference featured seven sessions (out of 28) about elder abuse. These included a plenary on “Elder Justice and Adult Protective Services” which was moderated by the Honorable Patricia Banks, presiding judge of the Cook County Circuit Court’s Elder Law and Miscellaneous Remedies Division and chair of the ABA Commission on Law and Aging, and co-presented by Edwin L. Walker, deputy assistant secretary for Aging of the Administration on Aging with the Administration for Community Living, and myself. Other sessions included “Agents, Guardians, Surrogate, Oh My! Ethics of Working with Third Parties,” “Lessons from State and Local Efforts on Elder Financial Exploitation,” “Capacity to Consent to Sexual Expression in Long Term Care,” “Ethical Issues in the Attorney’s Response to Elder Financial Abuse in an Environment of ‘Zero Tolerance,’” “Model Approaches – Phase II: Building Legal Service Delivery Systems That Combat Elder Abuse,” and “Pass It On: Older Adults, Fraud and the FTC.”

Educating Other Professionals about the Law

The Commission continued striving to raise awareness among non-legal professionals about the laws relevant to elder abuse and the ways in which the justice system can help victims or punish perpetrators. Highlights included presentations at various national and state conferences such as the annual meeting of the Gerontological Society of America, the California District Attorneys Association National Elder & Dependent Adult Abuse Symposium (which draws law enforcement officers/investigators and adult protective services professionals in addition to prosecutors), and a half-day program on undue influence for the Florida Coalition Against Domestic Violence.

Educating Older Persons and Lay Fiduciaries

We continued to work with the Consumer Financial Protection Bureau (CFPB) Office for Older Americans on six state adaptations (see below) of the national Managing Someone Else’s Money guides that were published in 2014. The guides are intended for agents under powers of attorney, court-appointed guardians of property and conservators, representative payees and VA fiduciaries, and trustees under a revocable living trust. 

Advocating for Stronger Laws and Policies

Supported by ABA policy, the Commission engaged in numerous efforts to strengthen federal and state laws and policies. These activities included continued involvement in the Elder Justice Roadmap steering committee and implementation efforts; technical assistance to Congressional committees and to federal agencies including the Senate Special Committee on Aging, the House Energy and Commerce Committee’s Commerce, Manufacturing, and Trade Subcommittee, the Administration for Community Living/Administration on Aging, CFPB, Department of Justice, Federal Trade Commission, National Institutes of Health, Securities and Exchange Commission, and Social Security Administration on financial exploitation issues.

We also provided technical assistance to numerous states, through AARP and directly, on power of attorney abuse, remedies for financial exploitation, elder abuse fatality review teams, and court-focused elder abuse initiatives; participated in national policy roundtables, forums, and summits; provided extensive advice to the North American Securities Administrators Association as it developed proposed model state legislation titled “An Act to Protect Vulnerable Adults from Financial Exploitation”; commented on federal proposed rules on nursing home quality of care and patient safety regulations related to elder abuse and to federal proposed voluntary guidelines for state adult protective services programs; and collaborated with the ABA’s Governmental Affairs Office to send letters to Congress in support of appropriations for the Elder Justice Act as well as for expansion and reauthorization of elder abuse-related provisions in the Older Americans Act.

Where to Go for Further Information

For the latest on all of the above activities, see the Commission's Elder Abuse Resources webpage at: http://ambar.org/elderabuse

Lori A. Stiegel

Lori A. Stiegel is a Senior Attorney at the ABA Commission on Law and Aging in Washington, DC.