March 01, 2014 EXP

Elder Abuse and Exploitation: How Courts Can Take Leadership in Developing Effective Responses

By Richard Van Duizend, Brenda K. Uekert

The U.S. Department of Health and Human Services’ National Center on Elder Abuse defines “elder abuse” as “any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult.” It typically includes physical abuse, emotional abuse, sexual abuse, exploitation, neglect, and abandonment.

Growing Recognition of the Magnitude and Severity of the Problem

Elder abuse is a global phenomenon. In 2002, the World Health Organization published a “call for action” aimed at preventing elder abuse, http://www.inpea.net/images/TorontoDeclaration_English.pdf, and in 2006, the International Network for the Prevention of Elder Abuse designated June 15 as World Elder Abuse Awareness Day.

In the United States, recognition by federal law of elder mistreatment may officially date to the passage of the Older Americans Act in 1965. The Act was intended to promote advocacy so as to safeguard persons over the age of 65. Almost 30 years later, Congress passed Title VII: Allotments for Vulnerable Elder Rights Protection Activities, to create the National Center on Elder Abuse and strengthen a number of advocacy programs. The Elder Justice Act (EJA) of 2009 called for the coordination of federal elder abuse detection and prevention programs within the Office of the Secretary of Health and Human Services—however, the final version of the Act did not include provisions recognizing elder abuse as a multifaceted problem that often requires the involvement and intervention of the justice system. In 2010, the Consumer Financial Protection Bureau (CFPB) was created by Title X of the Dodd-Frank Act. The CFPB includes an Office of Older Americans, which, among its objectives, strives to educate consumers about the dangers of financial exploitation.

All states and many Native American tribes have laws and codes addressing elder abuse, neglect, and exploitation. Elder abuse statutes vary widely and, in most states, are embedded in several code sections, including those contained within adult protective services (APS) laws, criminal codes, probate codes, family law, and civil remedies. In terms of criminal codes, some states specify elder abuse as a separate crime, using age and/or vulnerability of the victim as criteria. Other states use enhanced sentences for an assortment of crimes (e.g., assault, battery, sexual assault, theft, fraud) committed against an older person.

Most recently, states have targeted financial exploitation of older persons. In 2012, for example, Maryland enacted a law requiring financial institutions to report suspected financial abuse of older persons to APS or law enforcement within 24 hours of the suspicious activity.

Elder abuse has gained national attention through high-profile cases such as the one involving financial exploitation of well-known philanthropist Brooke Astor that resulted in criminal convictions of her son and estate attorney. In 2011, the actor Mickey Rooney testified before the U.S. Senate Special Committee on Aging on the emotional and financial abuse he endured at the hands of a family member.

Particularly troubling for courts have been the conclusions of ongoing reports and congressional hearings on abuse, neglect, and exploitation in the context of guardianship (guardian of the person) or conservatorship (guardian of the estate). In 2007, the U.S. Senate Special Committee on Aging released Guardianship for the Elderly, which called for creation of new models for guardianship for the elderly. In 2010, the Government Accountability Office investigated the financial exploitation, neglect, and abuse of seniors in the guardianship system and found insufficient court oversight of guardians in the majority of cases in which guardians stole or improperly obtained assets from incapacitated victims.

Within the last decade, state court leadership has begun to address elder abuse and guardianship issues. In 2008, the National Center for State Courts (NCSC) created the Center for Elders and the Courts (CEC), http://www.eldersandcourts.org. In 2009, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) created a Joint Task Force on Elders and the Courts, which is now a standing committee. In 2010, COSCA issued a white paper calling for reform in how courts handle adult guardianship cases. In 2014, the joint CCJ/COSCA conference’s educational theme focuses on the aging population, with special sessions on elder abuse and guardianship.

U.S. Demographics

The growth in the number and proportion of older adults is unprecedented in the history of the United States. Two factors—the number of aging baby boomers and longer life spans—will combine to double the population of Americans age 65 and older in the period between 2000 and 2030. The number of people in this age group will increase from 40 million to more than 88 million. In 2030, persons age 65 and older will comprise 20 percent of the U.S. population. The older segment of that population—those over the age of 85—is expected to more than triple from six million in 2010 to approximately 19 million in 2050.

The massive, aging, baby-boom population growth has occurred at the same time as a dramatic extension of longevity. In 1960, the life expectancy for a male infant was 67 years of age; for females life expectancy was 73. In contrast, a male infant born in 2010 had a life expectancy of 76, and a female infant could anticipate 81 years. The greater longevity has given rise to a new term, “supercent- enarian,” for someone who has reached at least 110 years of age.

The large numbers of older persons living longer will have an impact on every social institution—government, health care, justice systems, and the economy. The changing economy and tightening of government programs have already resulted in a rising retirement age—from 57 in 1991 to 61 in 2013. Furthermore, the healthcare system will be hard pressed to care for the high numbers of older Americans with chronic conditions. Research indicates that demand is likely to outpace supply and quality. In 2050, for example, there will be a need for more than 81 million caregivers, which will place the expectation of care onto family members. Major societal shifts will need to occur to develop vibrant communities and elder-friendly institutions.

Courts Are in the Best Position to Take the Lead

Precedents

Although courts have neither the power of the sword nor the purse, they do have the neutral moral authority to call public and private officials together to discuss how best to address a shared problem. Courts around the country have exercised this authority to explore more effective (and cost-effective) ways of dealing with such matters as substance abuse, child protection, and domestic violence. Collaboration between leaders of the judiciary and social service and community organizations has been instrumental in the creation of “problem-solving” courts and other measures designed to enhance responsiveness to social problems. These endeavors demonstrate how judicial leadership at state and local levels can fuel improvements in the legal system to better address elder law issues.

The Substance Abuse Context

The drug treatment courts that have opened around the country over the past quarter century have been largely the result of judicial initiatives, mostly at the local level, but increasingly at the state court system level. Drug courts are the result of a collaborative effort among criminal justice actors and treatment providers and other social service and community organizations. Judicial leadership is key to this collaborative effort.

This pattern of judicial leadership and collaboration has been instrumental, as well, in the creation of “problem-solving” courts addressing other social issues, including those related to mental health, housing, veterans’ concerns, low-level criminal activity, and domestic violence. The NCSC’s Problem-Solving Justice Toolkit, http://cdm16501.contentdm.oclc.org/cdm/ref/collection/spcts/id/147, urges that, after making a court’s judicial leadership aware of the initiative, judges should “reach out to key stakeholders.” Judges are also advised that:

How you frame the problem may make a difference in how stakeholders react to your initial contacts. If you encounter resistance, try to understand the stakeholder’s concerns. For example, is he or she worried about losing funding, lacking the staff to address the problem, losing focus on problems that are more prevalent or acute, or encountering interference in efforts already underway? Emphasizing that this is the very front-end of a process designed to raise all the relevant issues may alleviate some reluctance to participate.

The Child Protection Context

State court systems and local courts have been at the forefront in establishing and leading collaborative efforts to reduce the number of children in foster care and ensure that children removed from their homes receive safe and caring permanent placements as soon as possible. Over the past decade, teams of elected and appointed state leaders formed at the invitation of state chief justices have set priorities and developed implementation action plans for states during three national summits. At the local level, juvenile and family courts in at least 36 jurisdictions across the country have implemented the Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases, http://www.ncjfcj.org/sites/default/files/resguide_0.pdf, developed by the National Council of Juvenile and Family Court Judges. The Resource Guidelines call for judges to take the initiative with system partners to:

  • Form a local collaborative team of stakeholders to engage in system reform;
  • Evaluate the handling of child abuse and neglect cases;
  • Partner with the State Court Improvement Program to effect systems reform at the state level, including the establishment of best practices throughout the state;
  • Develop policies, standards, rules, and laws in support of system reform efforts;
  • Serve as a source of information to the community about the needs of children and families; and
  • Encourage the continuing education of the judiciary, system professionals, and the community on issues that affect child abuse and neglect cases.

The Domestic Violence Context

Courts were in the vanguard in searching for a coordinated response to better protect victims of domestic violence when this issue, like elder abuse now, was just emerging as a matter of national concern. They have remained key initiators of approaches such as specialized domestic violence calendars that are now used in more than 300 jurisdictions nationally. A report of a survey of domestic violence courts indicated that, in 80 percent of the subset of domestic violence courts visited by the researchers, a judge “provided the impetus” for establishing the program.

Promising Court Efforts

Elder Justice Centers

Generally, an elder justice center (EJC) is a designated facility for older persons offering public education, referrals, victim advocacy, and case management services. EJCs bring the courts together with a variety of agencies to address a broad range of issues that may impact older persons. The first EJC was created in 1999 by Florida’s Thirteenth Judicial Circuit in Tampa, Hillsborough County. It was designed to assist persons aged 60 or older who are involved in the court system through guardianship, criminal, family, or other civil matters. The goals of its founders were to:

  • Provide a designated elder-friendly facility for seniors over the age of 60;
  • Coordinate access to existing services;
  • Provide assistance to senior victims of abuse and/or exploitation;
  • Provide public education; and
  • Provide short-term case management services.

The most recent EJC opened its doors in the Circuit Court of Cook County, Illinois. The mission of the center, which is centrally located in downtown Chicago, is “to serve the unique needs of elder litigants and their families.” It provides the following services for litigants aged 60 and over: referrals, case management and coordination, translations, victim advocates, mediation of certain legal issues, financial literacy training, private interviews and counseling, courthouse educational tours, access to wheelchairs, and seminars on older adult issues.

Elder Protection Courts

Elder protection courts are problem-solving courts that address specific cases involving an older victim. The concept originated with Judge Julie Conger in the Superior Court of Alameda County, California, in Oakland in 2002. Adaptations of the model have been implemented in the Superior Courts of Contra Costa County and Ventura County in California and Cook County in Illinois.

Elder protection courts vary in function, largely as a result of judicial preference; the degree of unification within the court system; and population. For example, the Contra Costa Elder Court, begun in 2008, is a collaboration between the court and community partners and is organized as follows.

  • A single judge hears all case types involving senior citizens: elder abuse, restraining orders, felonies and misdemeanors, landlord-tenant disputes, probate issues, small claims, and related matters.
  • The District Attorney’s Office uses vertical prosecution with a designated prosecutor who brings all criminal elder abuse cases to the attention of the court.
  • The elder court accommodates elders’ physical needs by holding hearings in the late morning and providing wheelchairs, assistive listening devices, and document magnifiers in the courtroom.
  • Volunteer “senior peer counselors” assist elders seeking restraining orders and offer emotional support before and after hearings to help elders understand the process and the outcomes.
  • The court coordinates other services, including free legal advice from experienced attorneys for indigent seniors, in-home counseling, transportation assistance, and referrals to community-based resources.

In Cook County, the elder protection court was created within the newly formed Elder Law and Miscellaneous Remedies Division headed by Presiding Judge Patricia Banks. Cases assigned to the elder protection court arise out of the Elder Abuse and Neglect Act, the Illinois Power of Attorney Act, domestic violence cases, and criminal offenses in which the victim is an older person. The court has a special docketing and calendaring system; is staffed by specially trained judges, clerks, and deputy sheriffs; and uses victim and witness advocates to help elder litigants in domestic violence and criminal cases. In addition, the Elder Law and Miscellaneous Remedies Division created community outreach programs to improve the detection and prevention of elder abuse and neglect.

Enhanced Monitoring of Guardianships and Conservatorships

Other courts and court systems have focused on preventing or detecting abuse and exploitation of persons under guardianship. For example:

  • Tarrant County, Texas, Probate Courts 1 and 2, which operate in the Fort Worth area, make extensive use of volunteers to monitor guardianships and ensure the well-being of the incapacitated person. The court offers internships to law students and graduate students in social work and nursing to visit incapacitated persons, report on their well-being, identify possible changes that could be made in guardianship orders, and flag problems for the courts to investigate further. The students receive course credit, and the court is able to broaden and strengthen its monitoring to capacity at little cost. Rockingham County, New Hampshire, Probate Court in Portsmouth recruits volunteers from local AARP members to perform similar functions.
  • The Seventeenth Judicial Circuit of Florida in Broward County, which encompasses Ft. Lauderdale, utilizes court staff to monitor guardianships and a multitiered system for reviewing reports. Upon submission, all reports are given a screening review by the Audit Division of the Clerk of the Court’s Office. Following this review, a sample of reports is selected and given a more intensive second-level examination by the Division. Reports that suggest there may be a problem are then selected for intensive in-house and field audits of supporting documentation to verify the information in the reports. When irregularities are found, the Audit Division sends a memorandum, together with the guardian’s report, to the judge for review. This process is now being streamlined and enhanced through the use of filing standardized, Web-based, “smart forms” electronically. The information entered on these electronic reporting forms flows into a database that can be used to identify indicators of possible problems such as sudden increases or decreases in income, expenses, or fees.
  • The Minnesota State Court Administrator’s Office has developed a statewide system for filing annual accountings from conservatorships and has been adding an analytic component to facilitate review by a single state office, rather than at the local court level.
  • The Maricopa County, Arizona, Probate Division, which serves the Phoenix area, has taken guardianship monitoring a step further. Using a set of “red flag” indicators, it is developing a risk assessment tool to assist court staff in determining the level of oversight needed, the frequency of reviews, and whether monitoring should be performed primarily by volunteers or court staff. This risk management system not only better protects incapacitated persons from abuse or exploitation, but also enables the court to most efficiently and effectively use its resources.

State Task Forces and Commissions

Over the past eight years, a number of state supreme courts have established task forces to provide recommendations regarding how courts can better protect vulnerable elderly people. Most, but not all, have focused on improving guardianship and conservatorship procedures, practices, and programs, often in response to critical media stories regarding abuse or financial exploitation of protected persons. Such reports have surfaced, for example, in Arizona, California, Nebraska, and Utah. However, Pennsylvania’s new Elder Law Task Force, chaired by Justice Debra Todd, is addressing elder abuse and neglect and access to justice for older Pennsylvanians, as well as guardianship issues. The Elder Committee established by the Texas Supreme Court is also focusing on a broader array of issues including abuse and exploitation. Task force recommendations have been generally well received and are being implemented.

Local Coordination of Services

A number of communities have formed teams of professionals from various public and private agencies to better address elder abuse both systemically and in individual cases. Active and visible judicial involvement is critical to the success of these collaboration efforts. The National Clearinghouse on Abuse in Later Life, http://www.ncall.us, lists several examples of these types of collaboration teams:

  • Interdisciplinary case review teams;
  • Coordinated community response teams;
  • Elder abuse fatality review teams;
  • Financial abuse specialist teams;
  • Elder abuse forensic centers; and
  • Sexual assault response teams.

See also Susan Keilitz et al., Nat’l Ctr. for State Courts, Court Guide to Effective Collaboration on Elder Abuse (2012), available at http://www.eldersandcourts.org/Elder-Abuse/~/media/Microsites/Files/cec/Court%20Collaboration.ashx.

Funding

Any time improvements in current practices and programs for vulnerable elders are proposed, the question of funding is raised. Unlike drug courts and domestic violence courts, other kinds of courts have no specified source of federal funds to assist with planning and initial implementation, although the State Justice Institute, http://www.sji.gov, may be able to provide modest funding support to some courts to better address the needs of older adults. However, in many instances, significant improvements can be accomplished through reallocation of existing funds, and collaboration often frees up resources by eliminating costly duplication of efforts. Collaboration also helps identify sources of possible additional funding for supplementary services from federal health, mental health, human services, and criminal justice agencies, and provides an opportunity to build information and support to convince local and state legislators of the need for and benefits resulting from the proposed changes.

To maximize the chances for receiving needed funding, it is essential that planning task force or committee members:

  • Create a clear vision of what they are seeking to create;
  • Set clear, measurable objectives; and
  • Collect and analyze data to show which objectives are being achieved; the benefits to elders, the courts, and the public; and the areas in which improvement is needed.

Conclusion

Unfortunately, elder abuse and exploitation is not a short-term problem. These cases will take up an increasing share of judicial, law enforcement, and social services caseloads for many years. The courts are in the best position to call attention to the problem and bring community leaders together to address it. The authority and methods for taking the initiative are there. The time for doing so is now.

Richard Van Duizend

Richard Van Duizend served as reporter for the National Probate Court Standards. He retired in 2012 as a principal court management consultant with the National Center for State Courts.

Brenda K. Uekert

Brenda K. Uekert, PhD, is a principal court research consultant with the National Center for State Courts. She serves as director of the NCSC Center for Elders and the Courts.