Elder Abuse Detection: the Vital Role of the Physician

Flowers in Stone

Colorado physicians are mandatory reporters under the Colorado elder abuse statute.  See Colo. Rev. Stat. §18-6.5-108(1)(a) – (1)(b).

There is typically a lot of shame and guilt around abuse or exploitation with an elder victim, particularly when the abuse is perpetrated by an adult child or family member of the elder and the elder may be reluctant to take any protective action on their own.  The elder often suffers alone and in silence and will sometimes neglect themselves as a result.  Remember that we don’t really have any firm grasp on how rampant elder abuse or exploitation is in our country due a number of factors which include: the reluctance of a victim to self-report; the variety of state law definitions of what constitutes elder abuse; and a lack of any central clearinghouse for collection of state or federal data concerning reports of elder abuse (in its different aspects).

Financial exploitation, emotional or physical abuse tend to have serious and life-shortening health effects for an elder.  Remember that a 2009 JAMA article on Elder Self-Neglect and Abuse and Mortality Risk stated that elders who have been abused have a 300% higher risk of death compared to their age cohort of those who have not suffered such abuse.  This is most certainly a health issue for at-risk elders and this fact makes it that much more important that doctors, particularly ER (or ED) doctors be trained to recognize the signs of abuse or self-neglect resulting from mistreatment.

The ER doctor sees not just the immediate physical effects or injuries of a physical abuse or emotional abuse (spiking blood pressure, increasing risk of stroke or heart attack) but they also see the effects of depression and other factors which both contribute to an elder’s isolation and vulnerability and are the ongoing results and manifestations of the elder’s victimization.

A recent Kaiser Health news article recently highlighted findings from a study in New York on increasing ER doctors’ awareness of signs of elder abuse.  Some of the training is around going behind the explanation of the injuries – usually from a fall or some other accident, and asking questions which may uncover the abuse which caused the “accident” and its injuries.  We have a long way to go to train more ER doctors to be up and running mandatory reports.  Doctors have made huge strides in recognizing other “accidents” or injuries resulting from domestic violence and child abuse and we need to have the same strides made for the detection and reporting of elder abuse.  It’s time!  We need to connect the ER doctors more effectively with the agencies involved in assisting victims – adult protection services and law enforcement agencies.

Here is an informative pdf from Florida State University’s National Prevention Toolkit on Domestic Violence for Medical Professionals. You might think it has to do with domestic violence, but it is a document that looks at each of the fifty states’ laws on reporting elder physical abuse. It identifies the reporting law for elder abuse, identifies who are the mandatory reporters (especially physicians and other health care professional) and provides some detail concerning the applicable civil and criminal statutes.

Why is it important to empower doctors with this information? An article from 2015 on physician screening for elder abuse observed:

Healthcare workers, more specifically Emergency Department physicians, are in a unique position in which they can not only screen and detect elder abuse in their patients, but also can change the abusive situation and prevent its continuation.

A brief article on emergency department care (filed under elder abuse treatment and management) urges doctors to take the time needed to assess a suspicious situation, noting that elders do not usually self-report and observing there may be concerns around balancing autonomy and safety.  Referral to APS is noted as “vital to decrease morbidity.”

Physicians and other health care professionals can provide important, necessary and perhaps life-saving medical care to victims of elder abuse.  Here is a link to a webinar on the ElderJustice.gov site to a webinar entitled “How EMTs Can Help Identify and Report Elder Abuse.”  When there is widely available training of medical professionals about how to ask and what to ask an elder on this difficult topic and there is also familiarity with available reporting units (APS or law enforcement) and sources for service referrals to assist the elder, elders in our community will be better served and the community will have another valuable resource for reporting incidents of abuse.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

When the Decedent Was a Hoarder

Tightrope

What is hoarding? I like this simple definition from the Anxiety and Depression Association of America.

Hoarding is the persistent difficulty discarding or parting with possessions, regardless of their actual value. The behavior usually has deleterious effects—emotional, physical, social, financial, and even legal—for a hoarder and family members.

Hoarding is “officially” a disorder, meaning it was reclassified as such in the Diagnostic and Statistical Manual (DSM-5) in 2013.  Prior to its recent “promotion” to a disorder, it was considered an aspect of obsessive-compulsive disorder, so many folks who suffer from OCD (or OCPD) are also hoarders. Hoarding has also been linked to attention-deficit/hyperactivity disorder (ADHD) and depression. Sometimes hoarding may be associated with an eating disorder like pica (eating non-food materials), Prader-Willi syndrome (a genetic disorder), psychosis, or dementia.

Hoarding for elders can be indicative of depression and/or anxiety and for those elders who may have been “pack rats” in younger years, the compulsive habit can worsen in later life.  Here’s a link to a University of California at San Francisco study that looks at elders’ hoarding as a health concern.  That study concludes that hoarding in elders often seems to worsen and becomes more problematic, but for reasons that remain unclear.

How does hoarding impact one’s life? There seems to be, to a certain extent, an inverse relationship of stuff hoarded to quality of life. The more stuff clutters a home, the unhealthier and more dangerous can be the living conditions. Shame, fear of judgment, distrust of others being allowed in to the hoarder’s living space can contribute to the hoarder’s sense of isolation.

It seems straightforward that an elder who has a dwelling place crammed full of junk is much less likely to allow caregivers into the home or others who might able to otherwise assist an elder with managing the challenges of independent living.

What can be done to help a hoarder while they are still alive?  The answer to that depends on the type of hoarding behavior as the intervention must be tailored to it.  And yes, in case you’re wondering, there is a Hoarders Anonymous, but my antivirus software won’t let me visit their website. . ..

So, this post is about hoarding in the estate context – what does that mean?

It means that the job of identifying the decedent’s assets can be difficult, at best.  Finding relevant information can be extremely challenging or impossible due to the sheer volume of papers collected by the deceased hoarder.  Many years ago, I represented the personal representative of an estate of someone who was a hoarder.  The decedent had died in a skilled nursing facility, but inside her home remained dozens of filing cabinets as well as many boxes of papers.  When I informed the personal representative about some documentation I would need, she informed me that she was fairly certain that the papers I needed were kept in the home, but it would take several weeks to go through those storage places to try and locate them.

What if the deceased was an “organized” hoarder and kept only certain types of items?

Well, that might not be so bad, but I haven’t seen that one yet.  In my experience, there are few “selective” hoarders.  I think that has to do with the fine line between collecting and hoarding!

And if the deceased was an indiscriminate or disorganized hoarder? Well, I don’t think there’s a patron saint of the chronically disorganized who happen to be hoarders – but maybe there should be.  You might recall that Dante’s Inferno, in the fourth circle (of hell) to be precise, identifies the twin opposite behaviors of those hoarders and wasters (or prodigals).  That circle is all about greed as the Fourth Circle of Hell is guarded by Pluto, the Greco-Roman god of wealth:

Here, too, I saw a nation of lost souls,
far more than were above: they strained their chests
against enormous weights, and with mad howls
rolled them at one another. Then in haste
they rolled them back, one party shouting out:
“Why do you hoard?” and the other: “Why do you waste?”

Canto VII, lines 25–30, Ciardi translation.

So, it is apparent that the proliferation of stuff and its unceasing accumulation has obvious negative effects on one’s relationships with others and the outside world in general, but. . .

What can we do about detecting the causes of hoarding and helping a hoarder?

It’s a fine line indeed between “collecting” and “hoarding.”  That Depression-era mindset of scarcity, coupled with distrust (anxiety) about the future – the origin of one’s next meal, etc., can contribute mightily to a worsening of an already latent propensity to collect.  Here’s an article about that topic.

And if you think there isn’t an opposite extreme that people can engage in (see Dante’s reference to the “wasters” above), here’s an article about compulsive decluttering.  The root of the problem may be the link between either type of activity and its origin with obsessive thoughts.

In short, there are ways to help a hoarder – and in particular to avoid making the person (not their affliction) a spectacle of ridicule.  If this sounds like self-interest for the family members of a hoarder, as in those persons who will be responsible for going through the hoarder’s possessions – well it certainly is in their interest to help!

© 2017 Barbara Cashman  www.DenverElderLaw.org

Capacity and Incapacity in Context

Maigue Swan

 

Capacity is not some dusty old legal concept! In this post I revisit some implications encroaching incapacity or. . .  the “dark side” of our longevity.

The issue of capacity basically concerns judgement – the ability to reflect on and consider decisions required for daily living.  When one lacks that capacity (or is deprived of it) the validity of some actions taken or decisions made – which have legal implications – can be called into question.  This capacity discussion is likely to become more commonplace as more baby boomers move into retirement years and greater longevity…

Here’s a definition of capacity referring to Black’s Law Dictionary:

Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition. Ability; qualification; legal power or right. Applied in this sense to the attribute of persons (natural or artificial) growing out of their status or juristic condition, which enables them to perform civil acts; as capacity to hold lands, capacity to devise, etc.

Capacity includes the ability to behave rationally and exercise one’s own judgment (for better or worse).  Certain matters which typically adversely impact one’s otherwise presumably intact capacity include: mental disorder, developmental disability, intoxication, injury affecting one’s cognitive abilities, or the course of a disease process.

Reference to judgement capacity (or the ability to process information) is a legal notion often coupled with or inclusive of a functional (objective) capacity assessment.  This is because so many of our human “doings” can require distinguishing (as our law does) between when we can manage and when we can’t.  The term “capacity” by nature refers to an ability.  I won’t go into any discussion about the nuances and historical underpinnings in the law relating to capacity as distinguished from competence.  If you want to read further on that topic, check out this entry from the Stanford Encyclopedia of Philosophy on decision-making capacity.

So – how do we move from being presumed to have capacity to being legally incapacitated?

Where an adult has diminished or diminishing capacity, the law makes reference here to the “least restrictive means,” a concept borrowed from disability law.  For Colorado adults who are determined by a court to be incapacitated, there is a finding by the court that “the ward is an incapacitated person and the ward’s needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance.”  See JDF 848, Order Appointing Guardian for Adult.

Because my practice focuses on elder law and probate, most of the petitioners whom I represent file petitions for guardianship (or conservatorship) concerning elders who have “slipped” in their capacities to manage for themselves, meaning the individual no longer has sufficient capacity to manage their affairs or make important decisions on their own.  Many of these elders are at risk of financial exploitation as a result.  I have also represented petitioners who are often parents of developmentally disabled young adults.  The distinctions among them, as for elders, are varied and numerous.  Suffice it to say that sometimes, for younger adults, it may be easier to establish grounds for a limited – as distinguished from the much more commonplace unlimited guardianship.  In the former there can be specific references to supports to help facilitate an adult’s capacity(ies).  Unfortunately, limited guardianships remain rare birds for a number of different reasons.

  Capacity in Daily Living

To bring this discussion back to the practical level, I not that one’s capacity to “live independently” or perform the activities of daily living (ADLs) are often part of the incapacity picture as well, but this is generally due to a concern for an elder’s self-neglect.  With regard to an elder who is named as a respondent in a petition for guardianship, the elder’s physical capacity or incapacity is generally irrelevant in determining incapacity unless it substantially affects his or her ability to make or communicate important decisions regarding his or her person, family, property, or results in self-neglect.  Physical impairments alone are often of limited import in the guardianship context, as evidenced by reference in Colorado law assistive devices and technologies and the preference for least restrictive means, but in making the determination of incapacity, reference is made (as stated above in JDF 848)  to those assistive technologies.

Another context for elders and capacity which is receiving more attention is the issue of consent for sexual relations.  I would imagine that the free-loving baby boomers will test their adult children’s tolerance and demand that more attention be paid to this aspect of living in a communal or institutionalized setting. Read a recent study about the generation gap in attitudes and practices of extramarital sex here.  A couple years back I wrote a blogpost on this topic and also about a husband in Iowa who was prosecuted for allegedly sexually abusing his demented wife.

Suffice it to say that this debate is ongoing, particularly as more institutions look to provide more person-centered care for residents who still enjoy physical intimacy.  Some of these folks have dementia or other cognitive impairments which can affect their ability to consent.  Do not underestimate the “eeewww” factor of many of these folks’ adult children who would rather not be informed of mom’s recently contracted STD or consider that an elder parent is sexually active!

We must remember, even when an adult is determined to be incapacitated for purposes of imposing a guardianship, what can still remain intact is that person’s capacity to express a preference as to the person who will serve as guardian.  In In re Estate of Runyon, 343 p.3d 1072, 1077 (Colo.App.Div.4 2014), the court held that

a finding that the respondent is an “incapacitated person” within the terms of the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator.   Neither the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may “still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. (Citations omitted)

That’s all for now and thanks for reading!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

When and How Should Someone Report Suspected Elder Financial Abuse or Exploitation?

Safety in Numbers

My posts about reporting elder abuse remain my most popular among readers and since it’s been a while since I’ve written on the topic, I thought it was time! I get regular calls from people about this question, often from adult children who are concerned about what is going on with a parent.  Plus, I listened to a webinar put on by the ABA last week about recognizing and preventing these scams.  Today I’m focusing on federal programs and resources.  Here’s a link to the US Department of Justice (DOJ) Elder Justice Initiative to get started.

Among the presenters at the webinar were a representative from the Consumer Financial Protection Bureau (CFPB) and a prosecutor from the US DOJ Civil Division’s Consumer Protection Branch.  I mention these two federal resources because most of us tend to focus only on local or state law enforcement when it comes to reporting suspected financial abuse or exploitation of an elders.  One other recent detail popped up on a listserve recently, reporting a scam concerning what was represented to be an “escrow company” to the victim and who told her they were assisting in the sale of her time share in Mexico.  Apparently tens of thousands of dollars were cumulatively wired to the scammers, for the purported purpose of covering taxes and transaction fees.  I searched online and found several posts about these types of scams that sound like perfectly legitimate businesses.  One of these scammers was using the name of a legitimate Colorado business.  Couple this with a scammer’s ability to “spoof” a phone number on the recipient’s caller ID, and it’s a pretty dangerously convincing mix!

The scammers are as familiar as the rest of us with the adage “if it’s too good to be true it probably is,” but some of these scams persist, coming in many new and different forms.  The more troubling scam scenario however is the much more legitimate sounding scam, which doesn’t purport to be a “sure thing,” but instead rely on a common human tendency toward “in for a penny, in for a pound” behavior, or what economists refer to as sunk cost fallacy and psychologists call commitment bias.

Many of these scenarios involve mail fraud and wire transfers.  Read a recent press release from the DOJ about actions concerning mail schemes targeting by foreign nationals.  Last March, the CFPB issued an advisory and a report with recommendations for best practices for banks and credit unions on “how to prevent, recognize, report, and respond to financial exploitation of older Americans. Financial exploitation, the illegal or improper use of a person’s funds, property or assets, is the most common form of elder abuse and costs seniors billions of dollars per year.”  The Advisory, which contains recommendations concerning the development of internal controls for the protection against and reporting of exploitation, training of staff to prevent , detect and respond to elder financial exploitation and using appropriate technology for the detection and reporting to local, state and federal authorities, is available here.  The executive summary of the CFPB’s report begins with an important message:

Elder financial exploitation has been called the crime of the 21st century and deploying effective interventions has never been more important. Older people are attractive targets because they often have assets and regular income. These consumers may be especially vulnerable due isolation, cognitive decline, physical disability, health problems, or bereavement. Elder financial exploitation robs victims of their resources, dignity and quality of life—and they may never recover from it.

You can read more of the report here.

There are many ways that scammers defraud elders and some of these include Medicare, Medicaid and health insurance fraud (which is akin to a form of identity theft), IRS and tax scams, mail fraud and internet scams involving “sweethearts” and online dating, sweepstakes and lottery “winnings” and tech support scam.  The Justice Department also has a helpful roadmap identifying what type of scam and which federal agency to which it can be reported.

One valuable thing for people to consider in reporting an incident of suspected elder financial abuse and exploitation is this: a single victim may not have suffered a devastatingly huge loss, relative to their life savings perhaps, and it may even have been a relatively small loss, but if it is multiplied among a range of victims nationwide, what the scammers take can amount to millions of dollars.  This is why reporting remains critically important.  We are charting new ground here as many facts and figures about the incidence and forms of elder financial abuse and exploitation remain unknown due to underreporting.

That’s all for now.

© Barbara E. Cashman 2017   www.DenverElderLaw.org