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Defensive Use Of Powers Of Attorney

by with No Comment Asset ProtectionLegal TechnicalSNT

The General Durable Power of Attorney (“GDPOA”) has often been described as the most effective burglary tool since the crowbar.  The defensive use of the elder principal’s GDPOA can minimize the potential for Elder Financial Abuse.  Proper counseling of an elder by the estate planning attorney, and customized drafting of the GDPOA to address the elder’s specific worries about the powers granted to the agent, can help minimize the potential for EFA. 

Bigstock-Power-Of-Attorney-30978749Of particular concern to many elders is the abuse of gifting authority under the GDPOA, or other granted powers that could defeat her estate plan if used improperly by an unscrupulous agent.  Other problematic powers that are routinely granted under many boilerplate GDPOAs include the authority to make tax-motivated transfers, to exercise disclaimers or powers of appointment, to sell assets subject to a specific bequest in the elder’s Will, to change beneficiary designations for the elder’s non-probate assets (for example, life insurance, retirement plans, accounts with transfer-on-death or pay-on-death designations), to create joint interests with the right of survivorship, and to create, amend, revoke, or terminate an inter vivos trust that would avoid the probate process. 

The law in many states requires a person to opt-in to each and every power granted under a GDPOA, especially the powers noted above.  Although the expense of customized drafting, explanations of opt-in powers and review of worst case scenarios for the illicit use of granted powers can be significant, these approaches can provide enhanced protection against EFA for the elder and the intended beneficiaries of her estate plan.

Additional protection against EFA can be afforded by setting forth in the GDPOA specific duties of the agent (signed and acknowledged by the agent), including the duties of loyalty, good faith, and due care; a duty to keep the principal’s property separate from that of the agent; the duty to denote clearly any of the principal’s property titled in the name of the agent in that capacity; and the duty to keep a contemporaneous record of each transaction undertaken by the agent on behalf of the elder, a running account of all receipts and disbursements as agent, and a full annual (or more frequent) accounting to the principal, her conservator, if any, other persons designated in the GDPOA to receive this information, and to the elder’s executor or other personal representative within 90 days of her death.

The GDPOA should also address self-dealing and conflicts of interest that inure to the benefit of the agent, including any specific examples the elder wishes to identify (for example, investments in the agent’s personal business or improvements to the agent’s residence or other properties).  The GDPOA should also outline whether and how the agent is to be compensated for services while acting as agent (for example, hourly at a specified rate, or a fee based on the value of the assets under management).  Fairly compensating an agent can encourage him to be more honest, attentive and diligent in the exercise of his duties, and help forestall EFA.

If you are interested in learning more about what it means to be a Lawyer With Purpose.  Come join us in Phoenix for 2.5 days of technical legal information at the 2014 Asset Protection, Medicaid & VA Practice With Purpose Program October 20-22nd.  Click the link to register today!

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Multi-Disciplinary Team Of Professional Advisors

by with No Comment SNT

Assembling a multi-disciplinary team of allied professionals to advise an elder on a consistent periodic basis can contribute significantly to the prevention of elder financial abuse.  Key members of such a team could include the following.

Bigstock-success-and-winning-concept---53462125National Elder Law Foundation

http://www.nelf.org/

Geriatric care manager

National Association of Professional Geriatric Care Managers (NAPGCM)

http://www.caremanager.org/

Life care planner

American Association of Nurse Life Care Planners (AANLCP)

http://www.aanlcp.org/

Investment advisor

Investment Advisor Search

http://www.investmentadvisorsearch.com/

SEC’S Investment Adviser Public Disclosure website

http://www.adviserinfo.sec.gov/

Government benefits specialist

Benefits.gov

http://www.benefits.gov/

Home accessibility specialist

Accessibility Professionals Association (APA)

http://www.accessibilityprofessionals.org/

Accountant

American Institute of Certified Public Accountants (AICPA)

http://www.aicpa.org/

Household manager

International Concierge and Lifestyle Management Association (ICLMA)

http://iclma.org/

Bookkeeper or bill payer service

National Association of Certified Public Bookkeepers (NACPB)

http://www.nacpb.org/

American Association of Daily Money Managers

http://www.aadmm.com/

Elder mediator

Academy of Professional Family Mediators (APFM)

http://www.apfmnet.org/

While the compensation of all of these allied professionals can be costly, the end result of their team efforts could save the elder multiples of that cost if significant financial abuse and exploitation is forestalled.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Elder Justice Act – Federal Initiatives

by with No Comment Legal Technical

On March 23, 2010, the Elder Justice Act (“EJA”) was signed into law by President Obama as part of the Affordable Care Act (a/k/a “Obamacare”).  See Patient Protection and Affordable Care Act, Pub. L. 111-148 (2010), as amended by the Health Care and Education Reconciliation Act, Pub. L. 111-152 (2010), collectively referred to as the Affordable Care Act.  The EJA creates a new Subtitle H to Title XX of the Social Security Act, largely codified at 42 U.S.C. § 1397j to § 1397m.  The EJA is the first comprehensive national legislation directed at elder abuse. 

The EJA is a four-pronged initiative intended to accomplish the following.

a.             Enhance national coordination of elder justice activities and research.

b.             Establish forensic centers to develop expertise and jurisprudence in elder                 abuse, neglect, and exploitation.

c.             Strengthen adult protective services.

d.             Enhance the capacity of long-term care settings to prevent and respond to elder                 abuse, neglect, and exploitation.  See Brian W. Lindberg, Charles P. Sabatino,                 Esq. and Robert B. Blancato, Bringing National Action to a National Disgrace:                 The History of the Elder Justice Act, NAELA Journal, Vol. VII, No. 1, Spring 2011, 105, at 115.

Bigstock-Old-Hand-Care-Elderly-7749577Elder Justice Coordinating Council

In recognition of the importance of coordinating the many federal, state, and local agencies and entities with jurisdiction over myriad aspects of elder abuse, neglect, and exploitation, Section 2021 of the EJA establishes the Elder Justice Coordinating Council (“EJCC”).  See Sections 2021 to 2024 of the EJA, 42 U.S.C. § 1397k.  The EJCC is required to make recommendations to the Secretary of the Department of Health and Human Services every two years to report on the coordination of elder justice activities by relevant federal agencies, and to report to Congress on accomplishments, challenges and recommendations for legislative action.  Current members of the EJCC include the following.

a.              Secretary, U.S. Department of Health and Human Services.

b.              Attorney General, U.S. Department of Justice.

c.              Director, Consumer Financial Protection Bureau.

d.              CEO, Corporation for National & Community Service.

e.              Secretary, Department of Housing and Urban Development.

f.               Secretary, Department of Labor.

g.              Secretary, Department of the Treasury.

h.             Secretary, Department of Veterans Affairs.

i.               Office of the Chairman, Federal Trade Commission.

j.               Chief Postal Inspector, Postal Inspection Service.

k.              Commissioner, Social Security Administration.

The EJCC held its inaugural meeting in October 2012, followed by two sessions in May and September of 2013.  For further information regarding the current EJCC initiatives, proposals and numerous “white papers” on the issues, click here. 

On my next blog post, I'll address the use of a multi-disciplinary team of allied professionals to help combat Elder Financial Abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Probate Court Remedies For Elder Financial Abuse

by with No Comment Legal TechnicalSNT

The Probate Court (or other state court with jurisdiction over alleged incapacitated adults) generally has the power to order numerous actions and remedies for elder financial abuse, each of which typically has its own procedural and evidentiary requirements.

Bigstock-Will-7981786The appointment of a limited or full conservator for the elder, with court-supervised responsibility for managing the elder’s assets, is typically ordered as a “defensive” protective measure.  During the pendency of a conservatorship proceeding, which can be a time-consuming proposition, consideration should be given to obtaining one or more of the following temporary remedies.

(1)  Temporary restraining order to prevent irreparable harm to the elder and her assets.

(2)  Preliminary injunction to preserve the elder’s assets while the conservatorship action is pending, coupled with court-ordered disbursements for the elder’s benefit during the pendency of the action.

(3)  Recordation of a lis pendens (Latin for “litigation pending”) in the deed records of any county in which the elder owns real property, putting third parties on notice of possible claims against, or title issues with respect to, the elder’s real estate assets.

Practitioners have reported a disturbing recent trend of filing “offensive” or “attack” conservatorship proceedings.  See Vivian L. Thoreen and Dana G. Fitzsimons, Jr., Elder Financial Abuse: Protecting the Aging Client from the Den of Thieves, 46th Annual Heckerling Institute on Estate Planning, Jan. 2012.  Cited examples include “[a] child, alienated from an elderly affluent parent and likely to be disinherited, seeks control of the parent’s assets to frustrate the parent’s estate plan by draining its assets.  Another example is the child, angry about being excluded from the parent’s lifetime giving, seeking to block generosity to other family members or charities, or to compel “gifts” to himself against the will of the parent.  In even more distasteful circumstances, the child may seek to restrict the parent’s lavish lifestyle or to limit expensive care so as to preserve a future inheritance.”  Id. 

Another disturbing offensive tactic that has emerged in recent years is that of “granny snatching” (i.e. removing an elder from her home state to another jurisdiction for the sole purpose of filing a guardianship or conservatorship proceeding there based on the elder’s physical presence in that jurisdiction).  This tactic has been curtailed in recent years as the vast majority of states have enacted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (“UAGPPJA”) in some form, promulgated in 2007.  

Notably absent from the list of 38 states and the District of Columbia that have enacted, or recently introduced legislation to enact (Massachusetts, Mississippi and New York), the UAGPPJA are several southern states, including Georgia, Florida, Louisiana, North Carolina and Texas.  (The other non-adopters are California, Kansas, Michigan, New Hampshire, and Wisconsin.)

If your at all interested in learing more about Lawyers With Purpose please join us in Chicago in June!  You can contact Molly Hall at 877-299-0326 x 201 or mhall@lawyerswithpurpose.com.  Register today – seats are filling fast!

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Civil Remedies For Elder Financial Abuse

by with One Comment SNT

Private civil actions for elder financial abuse under state law could include a complaint for restitution, compensatory damages, and punitive damages under one or more of the following.  The burden of proof for civil claims is usually "preponderance of the evidence."

  1. Specific statutory causes of action for elder financial abuse or exploitation.
  2. Fraud or constructive fraud on the elder.
  3. Breach of fiduciary duty, or aiding and abetting a breach of fiduciary duty, to the elder.
  4. Negligence.
  5. Rescission of transactions that damaged the elder.
  6. Conversion of assets stolen from the elder.
  7. Actions for an equitable accounting of the actions of a fiduciary charged with managing the property of the elder, whether as a Trustee or an agent (e.g. under a Power of Attorney).  Section 116 of the Uniform Power of Attorney Act (“UPOAA”) allows for certain persons to petition a court only “to construe” a Power of Attorney or “to review the agent’s conduct” thereunder, and to grant appropriate relief, but only if the Principal lacks the capacity to revoke the Agent’s authority or the Power of Attorney.  The persons who may petition for this judicial relief include the following.

a.     The Principal or the Agent

b.    A guardian, conservator, or other fiduciary acting for the Principal

c.    A person authorized to make health care decisions for the Principal

d.    The Principal’s spouse, parent, or descendant

e.    An individual who would qualify as a presumptive heir of the Principal

f.    A person named as a beneficiary to receive any property, benefit, or contractual right upon the Principal’s death, or as a beneficiary of a trust created by or for the Principal, that has a financial interest in the Principal’s estate

g.    A governmental agency having regulatory authority to protect the welfare of the Principal

h.    The Principal’s caregiver or another person that demonstrates sufficient interest in the Principal’s welfare

i.    A person asked to accept the Power of Attorney.

Bigstock-Several-Law-Books-With-Paragra-3525997Disinheritance statutes.  Several states (including Arizona, California, Illinois, Maryland, Oregon, and Washington) have enacted so-called “disinheritance statutes,” modeled after the more commonly encountered “slayer statutes.”  These laws preclude a convicted perpetrator of elder financial abuse from receiving benefits as a consequence of the death of the elder victim.  The abuser is deemed to predecease the victim for purposes of some or all of the following.

  1.  Inheritance under a Will or Living Trust.
  2. Inheritance under intestate statutes.
  3. Receipt of life insurance proceeds as a designated beneficiary.
  4. Elective share, statutory share, or homestead rights.
  5. Fiduciary appointments under documents executed by the elder victim.
  6. Benefitting as a permissible appointee of a power of appointment.

Registries of persons convicted of elder abuse.  Increasingly, Adult Protective Services agencies are creating and maintaining a registry of convicted elder abuse offenders that can be used to ascertain whether a prospective in-home caregiver (or other person with access to the elder) might have a history of, or propensity for, elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

 

 

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Remedies for Elder Abuse: Criminal Prosecution

by with No Comment SNT

Additional challenges for prosecuting elder financial abuse are presented by the growing number of interstate and international mass marketing fraud cases.  Such cases include “grandparent scams,” foreign lottery scams and internet scams.  Coordination among local law enforcement authorities in multiple jurisdictions (domestic and international) is labor-intensive and problematic. 

Bigstock-Brown-Gavel-46632817Lines of communication between local agencies and the numerous federal agencies that have authority to investigate and prosecute interstate and international scams is either informal or non-existent.  Federal agencies involved in combating interstate and international financial crimes include the following.

 

  • Consumer Protection Financial Bureau.

  • Federal Trade Commission.

  • Securities and Exchange Commission.

  • Postal Inspection Service.

  • Federal Bureau of Investigation.

  • Department of Justice.

  • Department of the Treasury.

Federal elder justice programs are administered and funded through a complex intergovernmental structure.  The Older Americans Act of 1965 (42 U.S.C. § 3001 et seq.) established the Administration on Aging (“AoA”) within the Department of Health and Human Services (“HHS”) as the chief federal advocate for older Americans, and assigned responsibility for elder abuse prevention to the AoA.  In April 2012, HHS established the Administration for Community Living, which brought together the AoA, the Office of Disability and the Administration on Developmental Disabilities “to better align the federal programs that address the community living service and support needs of both the aging and disability populations.”  See GAO, Elder Justice: More Federal Coordination and Public Awareness Needed (GAO-13-498)(Washington, D.C., July 10, 2013), at 4 (available at www.gao.gov/assets/660/655820.pdf). 

The Department of Justice supports HHS elder justice programs and activities by pursuing civil and criminal prosecutions of elder abuse and neglect, as well as health care fraud matters.  Id.  at 7.  The Consumer Financial Protection Bureau (an independent Bureau within the Federal Reserve System) is charged with combating elder financial abuse through its recently established Office of Financial Protection for Older Americans (authorized by 12 U.S.C. § 5493(g)(3)) (“OFPOA”). Id. at 8.  The functions of the OFPOA must include activities designed to facilitate the financial literacy of persons age 62 and older to protect them from unfair, deceptive, and abusive practices.  See 12 U.S.C. § 5493(g)(1).

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.


 

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Financial Abuse of Elders & Other At Risk Adults – Part 9

by with No Comment SNT

Remedies For Elder Financial Abuse: State Criminal Prosecution

Although the Adult Protective Services (“APS”) statutes and programs in all 50 states and the District of Columbia recognize elder financial abuse as a reportable action, not all states specifically recognize elder financial abuse or exploitation as a distinct crime.  In those states, however, basic criminal laws against theft, fraud, deception, larceny, forgery, and embezzlement can be invoked to prosecute elder financial abuse and seek restitution for the elder.  The burden of proof for a conviction under such statutes is typically “beyond a reasonable doubt.”

Bigstock-Abusedpiggy-6651443Frequently, however, prosecutors refuse to pursue elder financial abuse actions for a variety of reasons, including (i) insufficient support of APS investigations by law enforcement personnel; (ii) limited budget resources; (iii) the effect of the incapacity or death of the victim on the ability to marshal sufficient probative evidence; and (iv) the refusal of the victim to cooperate with the development of the case.

Specially trained multi-disciplinary teams of criminal justice and social service professionals are increasingly being trained and deployed to enhance state efforts to prosecute elder financial abuse.  Collaboration between and among the following disciplines promises to increase the effectiveness of state efforts to convict and punish the perpetrators of elder financial abuse: (i) APS,State Units on Aging, and Long-term Care Ombudsman Offices (“LTCO”); (ii) state and local law enforcement agencies; (iii) policy makers; (iv) financial and banking industries; (v) legal; (vi) social services agencies and social workers; (vii) medical and mental health care providers; (viii) public health officials; (ix) medical examiners and coroners; (x) state insurance, banking, and securities regulators; (xi) district Attorneys and state Attorneys General; and (xii) consumer protection agencies.

An example of a successful multi-disciplinary team established by the Georgia Department of Human Services Division of Aging Services, Forensic Special Investigations Unit, is the “At-Risk Adult Crime Tactics” (“ACT”) Specialist Program.  Over 800 ACT specialists are working in Georgia, with promising results at the local, state and federal levels to combat and prosecute the abuse, neglect and exploitation (“ANE”) of at-risk adults.  An ANE work group comprised of representatives of local agencies (e.g. county and city police departments, county District Attorney’s Offices), state agencies (e.g. the Georgia Bureau of Investigation, APS, LTCO, Medicaid, Inspector General, Georgia Association of Chiefs of Police, Georgia Criminal Justice Coordinating Council), and federal agencies (e.g. the FBI; the Offices of Inspector General of the Social Security Administration, HHS, FDA, VA; and the United States Attorney’s Office) meets bi-annually to identify and address obstacles to preventing and prosecuting crimes against at-risk adults.  Recommended solutions include the following.

(a) Increased public education and awareness of ANE of at-risk adults.

(b) Mandatory training of criminal justice personnel at all levels (e.g. law enforcement, prosecutors, judges) on ANE of at-risk adults.

(c) Expedited investigation and prosecution of crimes against at-risk adults.

(d) Development and codification of evidence preservation procedures designed to enhance prosecution of ANE crimes against at-risk adults.

(e) Development of multi-disciplinary cooperation and collaboration between law enforcement and non-law enforcement government agencies to ensure equal protection for at-risk adult victims.

(f) Facilitation of information sharing between and among government agencies to support investigations and enforcement.

(g) Statutory changes to enable law enforcement to obtain financial records related to abuse and exploitation in a no-cost or low-cost manner.

(h) Development of funding resources to implement the foregoing recommendations.

The activities of the Georgia Department of Human Services Division of Aging Services to combat the societal plague of ANE of at-risk adults is documented in a recent public television production Elder Abuse: Hiding in Plain Sight (available at http://www.gpb.org/elder-abuse).

Part 10 of this series will explore the challenges of prosecuting interstate and international elder financial abuse schemes.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

 

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Financial Abuse of Elders & Other At Risk Adults – Part Eight

by with No Comment SNT

Parts 6 and 7 of this series addressed the roles of Adult Protective Services and the Long-Term Care Ombudsman Programs in investigating and redressing alleged elder financial abuse.  There are several other resources available to handle the myriad legal issues raised by this crime.

Bigstock-Abusedpiggy-6651443The Older Americans Act provides funding for state legal services programs designed to address the needs of elders.  In the context of elder financial abuse, such programs can provide no-cost access to the justice system by offering advocacy, advice and legal representation to persons 60 years of age or older, including access to an attorney.  Due to limited budgetary resources, these legal services programs accept only a small percentage of the cases referred to them.  The staff of these programs also routinely present community education programs addressing topics of interest to elders, including consumer fraud and financial exploitation.  This type of community education often helps prevent elder financial abuse from occurring.

Some states also maintain a “Senior Legal Hotline,” which provides brief telephone assistance and advice on civil legal matters to, and on behalf of, persons 60 years of age and older.  Attorneys are available to answer legal questions during regular business hours.  Additional resources are sometimes available by collaborating with APS programs if the case involves elder abuse and neglect, adult guardianship or conservatorship matters, or elder financial exploitation. 

Increasingly, private law firms are offering pro bono legal services to the victims of elder financial abuse.  Holland and Knight, which represented Mickey Rooney in a well-publicized civil lawsuit for financial abuse against his step-son, Christopher Aber, has created “The Mickey Rooney Elder Abuse Pro Bono Project.”  Private attorneys agree to pursue elder abuse cases that otherwise would not be pursued.  The initiative is reportedly being replicated in law firms across the country.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

 

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Financial Abuse of Elders & Other At Risk Adults – Part Seven

by with No Comment Uncategorized

The Crime of the 21st Century

The federal Older Americans Act mandates the establishment of a Long-Term Care Ombudsman (“LTCO”) program in all 50 states and the District of Columbia.  (The term “ombudsman” is Swedish for “citizen’s representative.”)  The LTCO is “dedicated to enhancing the lives of long-term care residents through advocacy, education and resolution of resident complaints, including those related to abuse, neglect and exploitation.”

See NCEA site at http://ncea.aoa.gov/Stop_Abuse/Partners/LTC_Ombudsman/index.aspx. 

Included in the scope of long-term care facilities subject to LTCO oversight are the following. 

·      Skilled nursing facilities (“nursing homes”).

·      Assisted living facilities.

·      “Board and care” homes (often referred to as “personal care homes” or “host homes”).

·      Intermediate care facilities for those with intellectual disabilities.

·      Other community living arrangements (e.g. group homes).

Bigstock-Abusedpiggy-6651443See National Long-Term Care Ombudsman Resource Center website http://www.ltcombudsman.org/about-ombudsmen.

The LTCO program is usually operated under the auspices of the “State Unit on Aging” or local “Areas on Aging,” which are part of the “Aging Services Network” mandated by the Older Americans Act and developed by the U.S. Department of Health and Human Services (“HHS”) Administration on Aging (“AoA”).  In April 2012, HHS established the Administration for Community Living, which consolidated the AoA, the Office on Disability, and the Administration on Developmental Disabilities. 

Complaints to the LTCO may be initiated by a call to the State Unit on Aging, the Regional Area Agency on Aging, or State LTCO Office, by either the resident herself, or on behalf of the resident by a friend, family member or other third party.  The NCEA maintains a database of all state LTCO contacts (state, regional and local), which can be accessed by calling the Elder Care Locator service at 1-800-677-1116 during regular business hours, or by visiting http://www.ltcombudsman.org/ombudsman.  Residents can also initiate a complaint in person when LTCO staff make periodic site visits to the facilities in their jurisdiction. 

Complaints of residents are informally investigated by LTCO personnel and resolved, if possible, by informal techniques such as mediation, conciliation, and persuasion.  If the complaint is not resolved informally, or if the nature of the complaint is so serious that it requires the involvement of a regulatory agency or law enforcement (e.g. alleged physical or sexual abuse or licensing violations), the matter is referred to the appropriate agency for formal investigation and resolution.  LTCO staff will engage in the necessary follow-up to assure that the formal investigation proceeds towards resolution of the resident’s complaint. 

All complaints lodged with the LTCO must be kept confidential, unless the resident authorizes the release of her name.  It is against the law for a facility to retaliate or discriminate against a resident for making a complaint to the LTCO.  Any person who makes a complaint in good faith is protected from civil and criminal liability.

In addition to the largely voluntary nature of many complaints lodged with the LTCO by, or on behalf of, residents of long-term care facilities, state law provides that certain persons having reasonable cause to believe that a resident or former resident has been abused or exploited while residing in a facility are mandatory reporters of such abuse or exploitation. Such reports are directed to be filed with the state Medicaid program and an appropriate law enforcement agency or prosecuting attorney. 

State law typically precludes public disclosure of the identity of the resident, the alleged perpetrator and the reporter unless required to be revealed in court proceedings, or upon the written consent of the person whose identity is to be revealed, or as otherwise required by law.  Retaliation or discrimination against a mandatory reporter is also prohibited.

Part 8 of this series will discuss several other legal resources for addressing alleged elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Financial Abuse of Elders & Other At Risk Adults – Part Six

by with One Comment Uncategorized

Adult Protective Services: First Responders for Reporting Elder Financial Abuse

All 50 states and the District of Columbia have an Adult Protective Service (“APS”) agency to investigate reports of elder abuse, neglect or exploitation, as required by Title XX of the Social Security Act.  The stated mission of an APS program is generally “to ensure the safety and well being of elders and adults with disabilities who are in danger of being mistreated or neglected, are unable to take care of themselves or protect themselves from harm, and have no one to assist them.”  The primary guiding value of an APS program is as follows: “every action taken by Adult Protective Services must balance the duty to protect the safety of the vulnerable adult with the adult’s right to self-determination.”

Bigstock-Abusedpiggy-6651443The general process for generating an APS investigation of alleged financial abuse of an elder includes the following steps.

 

  • A report is made to APS by someone who suspects elder abuse, exploitation, or neglect.  The reporter may call an abuse “hotline” or a state APS office.  The National Center on Elder Abuse maintains a database of all state APS contacts, which can be accessed by calling the Elder Care Locator Service at 1-800-677-1116 during regular business hours, or by visiting https://ncea.acl.gov/Resources/State.aspx.  The reporting person is protected from both civil and criminal liability.If the case meets all eligibility criteria, (e.g. age of victim, type of abuse, victim’s vulnerability), APS assigns a priority response time to the report based on the level of victim risk; involves emergency responders, if necessary; and assigns the report to APS for investigation.
  • APS staff contacts the elder victim within the state regulated timeframe (keyed to the urgency of the situation) to assess any immediate risk, and to investigate and substantiate the alleged abuse (with the assistance of law enforcement, if necessary).  Caseworkers then assess the current risk factors for the victim, including her ability to understand her risk and to give informed consent to further investigation and provision of protective services.If the victim consents, the APS caseworker develops a service plan, which may include both short-term emergency services (shelter, meals, transportation, home health services, medical or mental health services) and long-term services that are monitored by APS to assure that the risks to the victim are reduced or eliminated.  Substantiated criminal activity is referred to the prosecuting attorney.If the victim has the capacity to understand her circumstances and refuses an investigation or protective services, the APS caseworker may refer her to other resources before closing the case.  However, if APS has been able to substantiate if an elder has been abused, neglected or exploited by another person, it is required to report this to law enforcement even if the victim does not consent to the report.
  • While the demand for APS services has increased dramatically, program funding has either remained level or decreased in recent years.  In Georgia, APS case referrals in 2012 were up 22% from 2011 and up 67% from 2008.  Nevertheless, funding has not increased to meet this demand.

Part 7 of this series will discuss the Long-Term Care Ombudsman programs mandated by the Older Americans Act for addressing the elder abuse complaints of persons residing in nursing homes or other long-term care settings.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.