October 15, 2018

Elder Abuse, Neglect, and Financial Exploitation

Lori Stiegel

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 2.)

 

This year the ABA Commission on Law and Aging (Commission) continued its efforts, begun in 1993, to expand and strengthen the justice system’s role in preventing, detecting, and remedying the devastating and costly problem of elder abuse, neglect, and exploitation (generally referred to as “elder abuse” unless otherwise indicated). Commission activities were concentrated in three areas. New projects addressing the intersection of elder abuse and guardianship cut across all three areas, but are discussed in the update on Guardianship and Supported Decision-Making.

Educating and Providing Tools to Justice System Professionals

Elder Investment Fraud and Financial Exploitation Prevention Program Legal
Our initiative known as the Elder Investment Fraud and Financial Exploitation Prevention Program Legal (EIFFE Legal) continued this year. In partnership with the Investor Protection Trust (IPT) and Investor Protection Institute (IPI), we are educating lawyers from diverse practices areas to:

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

We conducted a pilot test of the EIFFE Legal model national continuing legal education curriculum at the Iowa State Bar Association Annual Meeting in June. Approximately 60 people attended the 1.5 hour program.

Planning is underway for the final pilot programs, which will be in Philadelphia, Pennsylvania on April 6, 2017, and in Missouri, date and location to be determined.

Other EIFFE Legal activities this year included:

  • Stiegel presented about the initiative at an IPT-organized workshop titled “Elder Financial Abuse Prevention: Reaching People Where They Live” at the American Society on Aging Annual Conference;
  • Commission director Charlie Sabatino moderated a panel session about EIFFE Legal at the IPT Elder Investment Fraud and Financial Exploitation Prevention Program Summit; and
  • Stiegel spoke about EIFFE Legal activities and related issues to the ABA Section of Real Property, Trust and Estate Law Elder Law and Special Needs Planning Group.

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

At the end of 2015, the Commission had disseminated more than 23,000 printed copies of Legal Issues Related to Elder Abuse: A Pocket Guide for Law Enforcement as well as PDF versions of the Legal Issues Related to Elder Abuse: A Desk Guide for Law Enforcement and of Template for State Adaptation of “Legal issues Related to Elder Abuse: A Desk Guide for Law Enforcement.” Those guides and templates, supported by the U.S. Department of Justice’s Bureau of Justice Assistance, were intended for criminal justice professionals (law enforcement and community corrections officials, prosecutors, and judges), but also were useful to and requested by adult protective services and victim services professionals, lawyers, financial services industry professionals, advocates, victims, and others. Seeking to expand dissemination and use of the pocket guide, we submitted an application (in collaboration with Commission member Keith Morris of Elder Law of Michigan) to Georgetown Law Center’s Iron Tech Lawyer Program for development of a pocket guide app. Our proposal was selected and a team of students will begin work on the app in January 2017. In the meanwhile, the documents remain available online and free at http://www.ambar.org/ElderAbuseGuides.

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

The National Aging and Law Conference, sponsored by the ABA in collaboration with a number of other organizations, devoted a significant portion of its agenda to elder abuse again this year. Three plenary sessions and four workshops either addressed or devoted substantial attention to the problem. The “Justice for Elders” plenary featured Edwin Walker, Acting Assistant Secretary for Aging at the Administration for Community Living of the Department of Health and Human Services, and Andy Mao, Coordinator of the Elder Justice Initiative at the Department of Justice, who spoke about the important elder abuse initiatives underway at their respective federal departments. A plenary session on “Strengthening State Civil Laws on Financial Exploitation” provided information about the forthcoming model civil statutory provisions on elder financial exploitation that the National Center for Victims of Crime (NCVC) and the Commission are developing to help states better define and address the problem, protect victims, facilitate litigation to hold exploiters accountable financially, and enhance the remedies available to victims. Stiegel co-presented with NCVC project director Laura Cook and Matt Andres, University of Illinois College of Law professor and Elder Financial Justice Clinic director.

Other Significant Activities to Educate Justice System Professionals

Supported by the Administration for Community Living through its National Legal Resource Center, Commission staff produced and participated in:

  • A webinar titled “Legal Remedies to Financial Exploitation: Let’s Get Grandpa’s House Back” (Stiegel and Denis Culley of Maine Legal Services for the Elderly);
  • A four-hour live training program titled “Elder Abuse and IIIB Providers: Reviewing Resources and Our Role,” for Maryland’s Title IIIB legal assistance providers (Stiegel with assistance from two Maryland Legal Aid Bureau lawyers and two Maryland law enforcement officers); and

A webinar titled “Capacity and Vulnerability to Elder Abuse,” (Stiegel and Erica Wood of the ABA Commission and Dan Marson, professor of neuropsychology at the University of Alabama).

Stiegel co-presented with Oregon Attorney General Ellen Rosenblum and others on a panel titled “Attorneys General Combating Elder Abuse, Neglect and Exploitation: Bringing It Out of The Shadows” at the National Association of Attorneys General Spring Meeting.

Stiegel also presented “The National Perspective and the Role of Capacity in Criminal Cases of Elder Abuse” to Maryland criminal and general jurisdiction judges as part of a half-day Maryland Judicial Institute program on elder abuse.

Educating Other Professionals and Persons about the Law

The Commission continued its efforts to raise awareness among non-legal professionals, older persons and their family members, and lay fiduciaries about the laws relevant to elder abuse and the ways in which the justice system can help victims or punish perpetrators. Key activities this year included:

  • Reviewing documents produced by the Research Triangle Institute for providers of services to persons with dementia who live alone to ensure that the materials accurately and thoroughly impart information about elder abuse and the needs of victims; and
  • Writing a chapter titled “Elder Abuse Victims’ Access to Justice: Roles of the Civil, Criminal, and Judicial Systems in Preventing, Detecting, and Remedying Elder Abuse” for the forthcoming book Elder Abuse, edited by former Commission member Dr. Xinqi Dong.

The Consumer Financial Protection Bureau (CFPB) continued to disseminate materials developed for it by the Commission to prevent financial exploitation by lay fiduciaries (agents under powers of attorney, guardians, representative payees and VA fiduciaries, and trustees of revocable living trusts). Those materials include a set of four national, plain English guides, collectively known as the Managing Someone Else’s Money guides. Additionally, CFPB staff, Commission staff, and state legal experts collaborated to produce a set of guides for six states. The guides for Virginia, Florida, and Oregon have been published; release of the Illinois guides is imminent; and the guides for Georgia and Arizona will follow. Additionally, using replication tips and templates that the Commission also wrote for CFPB, Texas Appleseed and AARP Texas have prepared guides for that state and Minnesota’s Elder Justice Center is adapting the power of attorney and guardianship guides. CFPB had disseminated more than one million hard and virtual copies of the national and state guides, which are among its most popular publications, before August 6th when nationally-syndicated personal finance columnist Michelle Singletary wrote about the guides (https://www.washingtonpost.com/business/get-there/how-to-help-when-its-not-your-money/2016/08/04/9573a4e4-5904-11e6-831d-0324760ca856_story.html). To access the national and state guides and the replication tips and templates, visit http://www.consumerfinance.gov/managing-someone-elses-money.

Advocating for Stronger Laws and Policies

Supported by ABA policy, the Commission engaged in numerous efforts to strengthen federal and state laws and policies. Activities related to federal laws and policies included technical assistance to Congressional committees and to federal agencies including the Senate Special Committee on Aging, Administration for Community Living/Administration on Aging, CFPB, Government Accountability Office, and Department of Justice. Staff also collaborated with the ABA’s Governmental Affairs Office to send letters to Congress in support of bills that would appropriate funding for and authorize activities related to elder abuse.

We have provided technical assistance to numerous states on topics including power of attorney abuse, remedies for financial exploitation, elder abuse fatality review teams, and court-focused elder abuse initiatives. Much of this work is done through consulting services to AARP’s State Advocacy and Strategy Integration Team. We also continued advising the North American Securities Administrators Association on its efforts to protect older investors from financial exploitation and fraud. Additionally, we assisted the National Center for Victims of Crime staff on a project to develop model civil statutory provisions on elder financial exploitation (see above), which was funded by the Huguette Clark Family Fund for Protection of Elders, a Donor-advised Fund of the New York Community Trust.

Where to Go for Further Information

For the latest on the Commission’s elder abuse work, see our web page at: http://ambar.org/elderabuse. ■

Lori Stiegel