The Courage to Stop Elder Abuse
I do not normally reprint posts from other blogs in their entirety, but this one from ABAJournal.com is important and I don’t think they’ll mind:
Actor Mickey Rooney Says He Lacked Courage to Stop Financial Abuse
Actor Mickey Rooney told a congressional committee on Wednesday that for years he suffered in silence because he didn’t have the courage to seek legal help to stop a family member who was taking his money.
“My money was taken and misused. When I asked for information, I was told that I couldn’t have any of my own information,” Rooney said. “I was literally left powerless.”
Rooney didn’t identify the family member, but he has obtained a restraining order against his stepson, Christopher Aber, based on claims that Aber withheld food and medicine and took control of Rooney’s finances, according to the stories. Aber’s lawyer says the harassment allegations are false. A court has transferred control of Rooney’s affairs to a Los Angeles lawyer.
Rooney said Congress should pass legislation to strengthen enforcement in cases of elder abuse.
Bloomberg notes that securities regulators in 22 states are also trying to fight elder abuse by expanding a program that teaches medical professionals how to spot victims of investment fraud. The program is financed with corporate fines.
While program s teaching medical professionals how to spot victims of investment fraud are a great idea, I contend in Working with the Elder Client that the legal team is in the best position to protect elders from abuse: the medical team sees physical conditions, but knows little about the elder’s financial dealings; banks see financial transactions, but not physical conditions, etc. The legal team is most likely to have the access that can lead to awareness of elder abuse. As noted below, many clients are unable or unwilling to risk the repercussions of talking about abuse by caregivers upon whom they are dependent. It is not just a lack of courage.
It is not possible to deal in depth with this serious problem and the issues it raises for legal professionals in a blog post, here is an excerpt fromAs Working with the Elder Client that some of you may find helpful:
It is important that the legal professional know the legal definitions of elder abuse, mistreatment, and neglect set forth in statutes covering the jurisdictions in which they practice. It is equally important that the legal professional understand their legal obligations under those statutes and how those obligation relate to their ethical obligations. Finally, it is essential that the legal professional recognize the signs of abuse and neglect. Keep in mind that your elder client may be unable or unwilling to speak frankly about abuse they are experiencing, especially in the presence of a family member or other person who has assisted them in getting to your office.
Undue influence is the most subtle type of mistreatment, and therefore the most difficult to detect. Since the elder person is unduly influence through fear, dependence, diminished capacity and other factors, the victim is unlikely to both willing and capable of reporting the abuse. Many will not even be consciously aware of the undue influence. This topic has been discussed in detail in previous chapters, so here I will only list some of the signs that may indicate undue influence is being exercised over a client. These signs include:
- The helper speaks for the client
- The client repeatedly asks the helper to answer a question for him or her
- The client consistently looks to the helper before answering a question
- The client stops or changes an answer after the helper looks at, touches, or makes a movement towards the client
- The helper frequently corrects the client’s answers
- The helper refuses or is reluctant to allow the client to speak privately with the attorney or paralegal
- The client appears confused or influenced by medication or alcohol.
None of these signs is definitive. Many elderly clients are confused; need help remembering, and the like. However, a legal professional should proceed with caution when these signs appear.
… it is my general practice to insist upon meeting separately with the client in any situation where there may be a conflict between my client and the person with the client. I apply this policy to parent/child and husband/wife situations as well as elder client situations. However, I do tend to emphasize it more in cases involving elderly clients, especially when a child is bringing in a parent to prepare a will, create a trust, or transfer property.
Generally, the logistics of this can be delicate as once the two are in the room it can be difficult and embarrassing for the client to ask that the agent leave. I handled this by taking the responsibility. I explain that it is my rule to ask the other person to leave at the very beginning of the meeting before there is any substantive discussion. I explain to both the client and the other person that I do this as a matter of policy so I can document the file for the benefit of all concerned, not because of anything related to their particular circumstances. The important thing from my perspective is (1) not to insult either the agent or the client by suggesting that the agent may be taking advantage of the client or that the client is not capable of independent thought, and (2) make it clear that I am the person responsible for this request, not the client. If an abusive relationship does exist, we do not want the abuser to blame the abused for this challenge to their dominance over the abused.
Once the other person is out of the room I look for changes in demeanor on the part of my client, ask questions intended only to determine competency, and inquire about the client’s relationship with the other person. Generally, the actual answers to the questions are not important. I am more interested in the client’s reactions, demeanor, and the way they respond.
All of the law office staff should be given a clear understanding of to whom they can speak regarding the client. If the agency is established for one member of the family, it does not extend to other members of the family or members of the agent’s family. For example, if a son is the agent, the staff should speak only to the son and not to the son’s wife. This is not an unusual situation. The son brings the parent into the office for the legal services, but depends on the daughter-in-law to carry on the dialogue with the law office because the son works during the day and the daughter-in-law does not. If it is necessary, formally establish the daughter-in-law as an agent, but do not begin “stretching” the agency beyond that which is formally established.