March 01, 2014

Access to Justice by Telephone and Other Advances in Safety for Elder Abuse Victims

Deirdre Lok

Another version of this article first appeared in the July 6, 2012, edition of the New York Law Journal under the title “Order of protection project: A new protocol brings access to justice for older adults in New York City”. © 2012 ALM Media Properties, LLC.

Stories of Two Elder Abuse Victims

Mr. H

Mr. H was a slightly built 82-year-old Puerto Rican immigrant who lived with his adult daughter and her husband in a one-bedroom apartment in Fresh Meadows, New York. A Korean War veteran, Mr. H was diabetic, a cancer survivor, and diagnosed with early stage Alzheimer’s. His daughter quit her job to care for him and she became his primary caregiver.

For years, Mr. H’s daughter was a victim of domestic violence. In years past, she suffered extreme physical abuse at the hands of her husband. Her husband dislocated her shoulder during an assault. He dislocated her knee when he dragged her down stairs in their apartment building. Not only had she endured the physical pain, hospitalizations, and surgeries, but the verbal abuse was constant. She was insulted and threatened daily. Her husband belittled her and made a habit of spitting in her face.

On April 14, 2013, at approximately 2:30 a.m., the police responded to a 911 call made from Mr. H’s apartment. His son-in-law was intoxicated and had smashed a table into pieces, throwing all its contents to the ground. He was angry and belligerent. However, the police made no arrest; instead, they recommended that the daughter seek an order of protection in family court. As in the past, she did not go to family court and was not prepared to end her relationship with her husband.

Two days later, on April 16, 2013, at 3 a.m., Mr. H’s son-in-law slammed through the locked wooden front door of their apartment, yelling, “Get out you b#$%, get out you f$#%ing b#$%.” While his daughter ran outside to call 911, Mr. H could not move fast enough to leave the apartment. Although not physically injured, Mr. H was left alone in the small apartment with an aggressive and angry intoxicated man 40 years his junior. Finally, Mr. H’s daughter understood the danger her father was in as a result of the exposure to her husband’s violent and dangerous behavior. Although she would not cooperate with the police, within a few days she decided to proceed with obtaining a family court order of protection. The request for protection specified that Mr. H was in danger because of his son-in-law’s violent behavior. However, no petition was filed to protect Mr. H and the victim services agency focused only on his daughter.

While his daughter began to recover after years of abuse and, at the same time, find a new place to live, she realized that she was not able to provide stable care for her father. She was routed to the New York City Department for the Aging, which referred the case to the Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale, an elder abuse shelter. Within the next few days, the community partners and the Weinberg Center team expedited Mr. H’s admission into the shelter. Mr. H was immediately immersed in the daily activities at the Hebrew Home and was provided comfort, support, and medical services.

The attorneys for the Weinberg Center learned that despite Mr. H’s numerous treks to family court, no advocate or attorney thought to ask him whether he needed or wanted an order of protection. The Weinberg Center immediately worked to obtain one for Mr. H through the Center’s Order of Protection Project. Through this access-to-justice initiative, on May 20, 2013, the court considered Mr. H’s age, lack of mobility, and medical conditions and granted his request for the order of protection through telephonic testimony. By June 2013, Mr. H decided to leave the shelter and safely returned back to the care of his daughter.

Mrs. Y

Mrs. Y was an 87-year-old cognitively impaired widow who was referred to the Weinberg Center and in need of an immediate safe place to go for financial protection and medical care. The Bronx County District Attorney’s Office learned that Mrs. Y’s building superintendent (the “super”) had moved in with Mrs. Y to “care” for her, and instead stole thousands of dollars from her. Somewhat shockingly, an attorney was involved in assisting the super in executing a fraudulent power of attorney on Mrs. Y’s behalf, despite the fact that she clearly lacked the requisite capacity to consent. This power of attorney gave the super full authority to drain almost all of Mrs. Y’s life savings. Recently widowed and lonely and in the early stages of dementia, Mrs. Y was confused about her finances. Fortunately, the sudden withdrawals caught the attention of her local bank and the local district attorney’s office. Mrs. Y was referred to the Weinberg Center, where she received the full spectrum of care, while the local adult protective services agency petitioned the court to appoint a guardian to manage her finances.

The Elder Abuse Problem: An Overview

Unfortunately, Mr. H’s and Mrs. Y’s stories are not unique. By 2030, 9.6 million Americans will be 85 and older. These so-called “old-old” are the fastest growing sector of our population. Medical technology and advances in medicine and research have led to longer, happier lives, but growing older can also mean an increased risk of medical complications, diminished cognitive functioning, and an increased risk of abuse. Each year, an estimated 2.1 million older Americans are victims of physical, psychological, or other forms of abuse and neglect. Financial abuse, especially in our current economic climate, is growing at an alarming rate. The MetLife Mature Market Institute conducted a study, Broken Trust: Elders, Family, and Finances, that found an annual loss by victims of elder financial abuse estimated to be at least $2.9 billion.

Elder abuse is often undetected and underreported. According to the National Elder Abuse Incidence Study conducted by the National Center on Elder Abuse at American Public Human Services Association, for every reported case, an estimated five elder abuse cases go unreported. New York is now the only state without mandatory reporting of elder abuse. Attorneys, and not just elder law attorneys, are seeing the impact and prevalence of elder mistreatment in their practices and are wondering where to turn and what resources exist. In addition, public cases such as Brooke Astor’s and the recent change in the power of attorney law also point to the growing and pervasive problems that elder abuse and exploitation present to legal practitioners.

In Response: Emergency Shelter

Throughout the nation, experts on aging, professionals seeking to end domestic violence, and others are using creative strategies to combat elder abuse. The Harry and Jeannette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale was created in 2005 when it became clear that there was a significant gap in service for victims of elder abuse in need of emergency shelter. No such safe haven existed. The Weinberg Center filled that need by providing an emergency residential shelter; psychosocial, health care, and legal advocacy; and community-based services for victims of elder abuse, as well as educational, training, research, and community awareness programs on issues of elder abuse. The Hebrew Home at Riverdale is a holistic environment where shelter residents reside and also benefit from extensive services offering a full medical staff able to provide 24-hour care, a rehabilitation department, a memory care unit, a vision center, and a wide array of therapeutic activities.

The goal of the Weinberg Center is to return the victim home, if possible, as they were able to do for Mr. H. If not, as was the case with Mrs. Y, appropriate long-term plans are arranged. Security is vital to ensure the safety of Weinberg Center clients and the other long-term care residents and staff. The Home has only one point of entry; it is secured and a trained security team is kept apprised of relevant court orders, limits on visitation, and other restrictions. Initially, a two-week, no-visitation policy is implemented for each new Weinberg resident to give the victim time to adjust to his or her new surroundings and for the staff to complete an evaluation and investigation into the alleged abuser or abusers.

The Weinberg Center’s legal professionals address all the victim’s legal needs, which may include revoking a misused power of attorney, applying for an order of protection, pursuing a criminal case against the abuser, litigating eviction notices, freezing assets, or petitioning the court to appoint a guardian. Through this individualized legal strategy in a protected environment, victims are provided, by means of a holistic approach, a safe space in which to recover from the trauma of abuse.

The Weinberg Center supports replication of its shelter model in other long-term care facilities and has successfully assisted in the creation and/or ongoing development of those replications in over 10 independent facilities. In 2013, as the movement to create shelters continued to gain momentum, the SPRiNG Alliance (Shelter Partners: Regional, National, Global, www.spring-alliance.org.) was formed to lend structure to its replication program. The SPRiNG Alliance’s mission is to create a network of elder abuse shelters with close working relationships, shared expertise and technical assistance, common standards of excellence, and a vibrant community of support.

In Response: Access to Justice by Telephone

Leaving home may not be necessary for elder abuse victims if they are able to obtain orders of protection. But, as in the case of Mr. H, victims rarely self-report and attorneys and service providers still miss red flags of abuse. Some abuse, such as a black eye or bloody nose, is obvious, but elder abuse may be invisible when it involves taking money, forging signatures, failing to provide assistance when needed, or improperly medicating. Victims may not report because they fear being questioned by “authorities,” retaliation, or loss of independence. Lori A. Stiegel, Financial Abuse of the Elderly: Risk Factors, Screening Techniques, and Remedies, 23 Bifocal 1, 6 (2002). Cognitive or physical disabilities may make the victim incapable of reporting the abuse. When elder abuse victims find the courage to report abuse, the challenges they face in family court may discourage their efforts at a critical juncture in their attempts to seek help. Thus, it is essential for an elder abuse victim to be able to obtain an order of protection with ease and proper support. Without an order of protection in Mr. H’s case, there would have been nothing to protect Mr. H and no paper trail documenting evidence of abuse he may have suffered even when he was not the “intended” target.

For an older adult who is homebound, or mobility-impaired, obtaining an order of protection was often, until recently, prohibitively difficult. Public transportation to and from court, which may be miles away from an older person’s residence, could be impossible to navigate in a wheelchair, with a walker or cane, or if there is any need for a medical device. Climbing in and out of a vehicle or bus could be daunting even if feasible. Obtaining access to the courthouse, struggling with weather conditions, carrying necessary food or water, managing the security restrictions, and waiting in lines can be difficult enough for a healthy, able-bodied individual. Needing to know which paperwork is to be filled out and where to go and then to wait for a clerk and then a judge will leave many victims asking whether or not they are able, emotionally and physically, to sustain the ability to undergo the rigorous process.

New York City family courts are changing this by implementing protocols for homebound and mobility-challenged older adults to obtain orders of protection. This collaboration between community agencies and the courts obviates the wait time for mobility-impaired older adults and finally grants access to the courts for victims of abuse who are homebound and unable to physically appear in court. Through the help of community agency advocates and attorneys, petitioners can alert a court to their physical challenges and can petition for an order of protection through testimony over the telephone or at a particular date and time scheduled in advance. The process is simple: the advocate fills out an online form providing essential contact information, time- certain requests, preferred method of appearance, and the pick-up location for the temporary order of protection paperwork. The form is then emailed or faxed over to the court clerk, who will immediately schedule testimony from the petitioner, either via teleconference or in court at a preset scheduled time.

Kings County was the first to spearhead this initiative, and it was evaluated in a June 2010 report on court-focused elder abuse initiatives. Lori A. Stiegel & Pamela B. Teaster, Final Technical Report to the National Institute of Justice on “A Multi-Site Assessment of Five Court-Focused Elder Abuse Initiatives,” A.B.A. & Univ. of Ky. Research Found 21 (June 30, 2011), http://www.americanbar.org/content/dam/aba/uncategorized/2011/2011_aging_ea_multi_assess.authcheckdam.pdf. The findings indicate that the Brooklyn project has resulted in prevention of further crimes; development of evidence; provision of emotional support, help, and accommodations for victims; an increase in elder abuse cases heard; increased efficiency; an acceleration of time taken to hear elder abuse cases; and an enhancement of awareness for judges and agency staff. It is estimated that in 2010, 12 homebound clients and 10–15 walk-in clients who had limited mobility or other health issues accessed this system to obtain orders of protection.

This relatively easy-to-adapt and easy-to-implement courtroom procedure has opened the door for mobility- challenged elder abuse victims such as Mr. H to seek protection, signaling a change in the treatment of older adults. This policy enables courts to provide the same access to justice for older adults as is provided to other members of our society. Similar protocols can and should be replicated in every courtroom in the country. For further information on how this can be replicated in other counties, contact the author at 718-581-1843 or dlok@hebrewhome.org.

Attorneys are often in the best position to take action to stop elder abuse. If you suspect elder abuse and have a client in need of emergency shelter in the New York City area, please call 1(800) 56-SENIOR.

 

Deirdre Lok

Deirdre Lok is assistant director and general counsel for The Harry and Jeannette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale in New York. She is also a member of the ABA SLD, where she co-chairs the Elder Abuse Working Group of the Elder Law Committee.