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Six Ways Public Interest Attorneys Can Combat Elder Abuse in Any Practice Area

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By Adam Dexter and Heather McKinney, 2020 Equal Justice Works Fellows in the Elder Justice Program. Adam is hosted by Legal Assistance of Western New York, Inc. and Heather is hosted by Legal Aid of NorthWest Texas.

Equal Justice Works Fellows working in the Elder Justice Program serve older adult victims of crime in response to epidemic levels of elder abuse in the United States. Although cases of elder abuse and exploitation are very common, they are not always easy to spot at an initial client meeting. Public interest attorneys are uniquely positioned to identify abuse against older adults and help them recover, not only through civil legal remedies, but also through targeted referrals.

Here are six ways to combat elder abuse in any practice area.

1. Appreciate the Extent of Elder Abuse in Our Society

The Elder Justice Act of 2009 defines elder abuse as “the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm of an individual age 60 or older.” At least 10% of people 60 and older experience abuse, and most of these crimes go unreported; studies suggest as few as 1 in 24 cases of elder abuse are ever reported. The trauma of elder abuse can lead to hospitalization, depression, social issues, and financial loss, all of which contribute to diminished independence and quality of life.

Financial exploitation of older adults is especially prominent, with financial institutions reporting $6 billion in actual or attempted elder financial exploitation between April 2013 and December 2017. Financial exploitation produces harm beyond the loss of money. Friends or family, unscrupulous businesses, phone and online scammers pretending to be government agencies like the IRS or Medicare, are all potential perpetrators. Older adults also suffer enormous losses from romance scams on online dating platforms and social media sites like Facebook, where bullying of older adults by family members, in addition to scams, cause tremendous shame and isolation, which exacerbates the likelihood of other forms of abuse and exploitation.

2. Understand the Causes and Conditions that Lead to Elder Abuse

Abuse comes in many forms, but one near universal underlying factor is social isolation. Even older adults in a community or living with family can be isolated. A genuine support structure and knowledge of and access to resources are a lifeline for older adults.

The isolation due to the COVID-19 pandemic has made older adults an even bigger target. Their regular, in-person connections to their communities such as church, community groups, and family visits have been limited for their safety. This lack of connection gives abusers like unscrupulous caregivers and romance scammers the opportunity to take advantage.

Perpetrators of elder abuse tend to go “where the money is.” In poorer rural areas where suffering spans much wider than elder abuse, an older adult’s social security check may be a household’s only sure income. Ancillary forms of abuse may be caused by underlying attempts to access that steady cash flow. Follow the clues and consider that your client may not tell you everything you need to know up front.

3. Watch for Signs with Every Older Client

Graphic of common signs of abuse, neglect, and exploitation

Prevention can be just as important as restitution. Be attentive to common red flags even if the client is coming to you for an issue unrelated to elder abuse. Indicators of abuse can include physical, behavioral, and emotional signs. The National Center on Law & Elder Rights has this checklist to help legal practitioners identify elder abuse.

For example, a client may call asking for assistance with an eviction because they owe past-due rent. By asking probing questions, an attorney may uncover that the rent has gone unpaid due to familial financial exploitation. Now the attorney is better equipped to help the person with revoking a misused power of attorney or changing a Representative Payee for Social Security payments in addition to aiding with stopping the eviction.

While it does not require expert knowledge to spot elder abuse, communicate with your screening and intake staff about what to look out for and common red flags. With just a handful of signs, anyone who encounters an older adult should be able to flag elder abuse and exploitation and make appropriate referrals.

4. Pay Attention to Your Client’s Capacity and Be Clear Who Your Client Is

Questions of a client’s cognitive capacity may come up during representation and research shows that people with dementia are at greater risk of elder abuse. Assessing capacity is necessary to determine whether the older adult properly executed a contract, is able to complete advanced planning documents like a power of attorney, or even has the mental capacity to hire the attorney. Balancing respect for autonomy while guarding against undue influence is tricky but crucial. The American Bar Association offers a number of guides and references on their website.

Well-meaning family members may apply for services on behalf of older adults. Keep in mind that the older adult is your client, not the family member. Talking to your client alone at the start of representation and periodically meeting one-on-one with an eye toward potential undue influence is crucial for fact-finding and to build trust. Strained or tense relationships between a caregiver and older adult may be a sign of abuse. Domestic violence advocates have developed a power and control wheel that serves as an important tool in this space.

5. Always Advocate for and Empower Your Client

Clarify the client’s goal in your initial conversation and work with them toward that end. Understand the importance of independence for your clients, while balancing their need for care. Clients almost always view nursing homes, guardianships/conservatorships, and reporting to Adult Protective Services as a last resort.

Always ask follow-up questions and check-in after long silences. Silence may not mean the client has lost interest in their case; consider that silence might be a strategy to cope with the stresses of abuse or health issues. Be aware that some signs of dementia may be signs of underlying health problems. For example, urinary tract infections can cause hallucinations and confusion, while many signs of depression overlap with early dementia symptoms. Assess whether the client is truly disinterested or struggling with a cognitive issue, or if they simply lack access to physical health or mental health resources.

6. Develop Resources for Referrals

Work with your organization to create a list of outside resources and community programs that will help clients access mental health counseling and support them in their recovery. If they exist in your area, make contact with local multidisciplinary teams using the Department of Justice’s Elder Justice Network Locator Map. Connections with agencies like Adult Protective Services or the District Attorney’s office facilitate and expedite direct referrals. Know whether you are a mandatory reporter and, if so, under what circumstances reporting is required and how to complete the process. The National Adult Protective Services Association offers an easy-to-use map to find out how to report suspected abuse in your area. Create a list of non-litigation reporting resources such as the Federal Trade Commission (FTC) or your state’s attorney general’s office but know when and why litigation may be the best way to achieve justice for your client. In some instances, older adults have been exploited by known individuals making civil litigation the best course of action for obtaining recovery. When an older adult has been the victim of a widespread scam, it may be impossible to pursue action against the perpetrator. In that case, the FTC or state attorney general’s office may be better suited to help.

Visit here to learn more about the Elder Justice Program Fellows who are addressing the gap in civil legal services for victims of elder abuse and exploitation.

The Elder Justice Program is supported by an award from the U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime (OVC), Award Number 2019-V3-GX-K033. This federal funding is supplemented by funds from private donors. The opinions, findings, and conclusions or recommendations expressed in this product are those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Learn more about becoming an Equal Justice Works Fellow