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The Challenge of Elder Abuse

By Donna Mallard | Jun. 2, 2015

News

Law Office Management

Jun. 2, 2015

The Challenge of Elder Abuse

Representing aging clients who are being financially exploited poses increasing issues for attorneys.

"Daniel" was a 76-year-old man widowed for several years when his daughter, who lived in another state, began to worry about him. Tall and lean, with slicked-back hair and a neat beard, Daniel lived alone in the same house in the tidy Bay Area neighborhood where he and his wife had raised their family. On a visit, his daughter "Liz" noticed that other people seemed to be living there. Daniel told her that a man and woman had moved in and, in lieu of paying rent, were driving him places and assisting with personal errands. (Names and some details, which were provided by counsel, have been changed for privacy reasons.)

To some outsiders looking in, the arrangement appeared disturbingly advantageous for the two roommates. Repeated trips to the ATM machine reaped withdrawals of $300 at a time from Daniel's account, out of line with his previous spending patterns.

Liz hired Fremont practitioner Ann Saponara to evict the couple. Both roommates had spent time in jail on drug charges. The police got calls from at least one neighbor who suspected something illegal was going on in Daniel's home, perhaps a meth lab. Adult Protective Services visited.

But Daniel started referring to his roommates as his "caretakers." Years earlier, he had agreed to put his house in Liz's name and designate her the agent in a financial power of attorney; now he believed his daughter had become too involved in his affairs. He revoked the power of attorney, preventing Liz from having access to his account activity. And eventually he hired a lawyer, Leo B. Siegel, to fight another eviction proceeding; this time, Liz wanted to get Daniel out of the family home as well.

Siegel, now at The Stone-Siegel Law Firm in Santa Cruz, zealously protected his client's autonomy. "He came to my office, he spoke in coherent sentences-nobody was finishing his sentences for him," Siegel says. "His family thought the roommates were stealing from him, but he told me giving them money was his decision and in exchange for what they did for him."

Saponara says her client intended to sell the house and put the proceeds into an account for her father's benefit, but the eviction action was dismissed when the daughter refused to fly out for the hearing.

Saponara met with Daniel at his home, and he ushered her to the 1970s-era kitchen to talk. "He was a kind host; he made me coffee. He listened and didn't interrupt. And he was very clear about the fact that all these choices were his," she says. But Saponara wasn't sure about his mental capacity. "There was some paranoia on his part. He kept looking out of the blinds of the kitchen window-and whether that was justified, I didn't know. ... I left feeling that something was wrong, but I was not clear what it was."

The Boom Hits the Law

The attorneys involved in Daniel's case faced an increasingly prevalent problem: dealing with the aging of the generation born in the years before the Baby Boom and with thorny questions of diminished mental capacity and the potential financial abuse of elders. Because the Baby Boom is giving birth to another unprecedented boom-of seniors-lawyers in many fields are having to navigate the fine line between elders retaining their independence and needing protection.

The boomer generation-Americans born between 1946 and 1964-now numbers 77 million, according to the U.S. Census Bureau. California is now home to nearly 7 million people age 60 and older, and the Census projects that figure will balloon to nearly 11 million by 2030, when about a quarter of the state's residents will be over 60.

But the generation of Americans with the longest predicted life spans is not necessarily ready to throw in the towel and retire to a life of puttering. Though a robust number of seniors are signing up for Medicare, Medi-Cal, and Social Security benefits, many are still working. Seniors will not only be bequeathing property, but buying and selling it; and not only closing but opening businesses-as well as traveling, spending, and, in general, having plenty of interaction with lawyers.

In 2013, people age 65 and older composed just 14.1 percent of the total U.S. population but held roughly one-third of the nation's wealth. Despite deep pockets and large ambitions, however, many will inevitably suffer physical and cognitive impairments as they age. Alzheimer's disease is now considered a growing epidemic, with 590,000 California seniors afflicted; within ten years the number is projected to increase to 840,000. With significant numbers of older people vulnerable to deteriorating short-term memory, analytical ability, and judgment-but continuing to make their own financial decisions-the risk of abuse is high.

Elder Abuse Laws

Awareness of the financial abuse of elders began to increase in the early 1970s, and in 1982 California lawmakers took steps to prevent it by passing the Elder Abuse and Dependent Adult Civil Protection Act. This legislation required health care professionals and others in regular contact with older people to report instances of suspected abuse to authorities. (See Cal. Welf. & Inst. Code §§ 15600-15675.)

Since then, the state's elder abuse laws have evolved to prohibit "taking, secreting, appropriating, obtaining, or retaining" property of a person over 65 for a wrongful use, with intent to defraud or by undue influence, when the wrongdoer knew or should have known that doing so would likely harm the elder. (Cal. Welf. & Inst. Code § 15610.30.) In contrast to the well-known principal of caveat emptor, the statutory definition of "wrongful use" creates a duty to treat elders fairly.

The related but distinctly different concept of "undue influence" got a new definition as of January 1, 2014. San Francisco attorney Steven Riess, who has conceived and written much of California's statutory law on financial elder abuse, says the law had not been updated-other than by case law-since 1872, when the predominant view was that only people suffering from "mental weakness" or under some form of extreme distress may be subject to undue influence. "Psychologists now recognize that anyone can be unduly influenced under certain conditions," says Riess. "The factors that are typically considered are the vulnerability of the victim, the apparent authority of the influencer, and the tactics employed."

California's new definition of undue influence includes "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity," and it applies to anyone whose decision making may have been wrongfully manipulated. (Cal. Prob. Code § 86; Cal. Welf. & Inst. Code, § 15610.70.) People who are older or ill are among groups identified as particularly vulnerable, whether or not they lack capacity.

Despite the protection these laws appear to provide, Riess is not convinced that elder financial abuse will become a feasible practice area even as both the older population and examples of abuse increase. Many elders aren't aware they have been abused or that legal remedies exist-and many have a difficult time finding qualified lawyers to represent them in civil court. "This is a disempowered group to begin with," says Riess. "They've lost money and don't want to spend more, or they are embarrassed, or they worry about their independence being curtailed."

Another obstacle: Most financial abusers are family members or caregivers upon whom elders rely.

Few Easy Cases

Confronting elder financial abuse can be daunting, even for experienced lawyers. "It is complex, involves different areas of practice, takes time to learn, and may not be economically viable," says Riess. "You may not have the ability to recover assets from a predator, so it's an economic risk to go forward. There are risks to attorneys if handled on a contingency basis in that you may have a good case for liability, but there are no assets to recover. It's different from physical abuse or neglect cases, where the defendants, like nursing homes, tend to have deep pockets or are insured. I don't think we will know for some time-maybe 20 years-whether elder financial abuse can be a viable, let alone robust, practice area."

Russell Balisok, author of the Rutter Group's Elder Abuse Litigation, acknowledges the obstacles but nevertheless believes that financial elder abuse is a "vibrant" and growing legal practice area. "In fact, it is exploding. There are so many more financial abuse cases than there are serious cases of neglect or physical abuse of elders," he says. "Financial abuse occurs when an insurer sells an annuity with unfair terms, when a contractor charges unfair prices, when a son steals from mom." Balisok says assets can be preserved fairly easily by seeking an injunction or seizing property or funds where misconduct is occurring or threatened.

'Lawyers Don't Understand'

"The problem," says Carolyn L. Rosenblatt, a litigator and former nurse, "is that lawyers don't understand cognitive impairment. ... Our profession has not demanded that lawyers get more education in the subtle erosion of financial decision-making capacity that comes with Alzheimer's and other dementias."

Rosenblatt, 67, lives in San Rafael with her psychologist husband, Mikol Davis, where the two consult on aging issues and mediate family conflicts involving elders. Rosenblatt volunteered in nursing homes from the age of 14, emptying bedpans and bathing patients. After earning a nursing license, she worked at hospitals and nursing homes and then as a visiting home-care nurse while in law school at the University of San Francisco. Before becoming a mediator, she had a personal injury practice, which included some elder abuse matters. "People with diminished capacity are like putty in the hands of a predator," says Rosenblatt.

"Repeatedly, I was irritated by the way my elderly clients were treated in the litigation process," she says. "Some counsel seemed to purposely prey on their vulnerabilities: lack of stamina, hearing loss, or other age-related declines." In Rosenblatt's view, the failure to recognize the warning signs of cognitive impairment amounts to aiding and abetting elder abuse. "Most attorneys are really stepping in it. They are missing it front, right, and center, and making it worse," she says.

True Link, a financial services company, recently undertook a study of elder abuse with help from a panel of researchers convened by the Financial Fraud Research Center at Stanford University's Center on Longevity. The researchers estimated as much as $36.5 billion a year is lost by seniors to financial abuse-more than twelve times what was previously reported by a number of other sources studying the issue.

Courts ultimately determine whether a person lacks legal capacity, but the information they work with comes from doctors. Rosenblatt would like to see lawyers taking a more active role by referring cases to clinicians in advance of litigation. "Except in conservatorship cases, no one's doing the testing preventively because Medicare doesn't pay for it and two or three basic tests might cost $1,000," she says.

Attorney Saponara, a solo practitioner, says caregivers and family members have brought older clients to her office seeking to have estate plans changed without regard to the elder's wishes or their capacity.

"I never effectuate anybody's wishes but the elder's, and if I have any doubt about capacity, I don't act until I can assure myself that there is capacity," she says. "I personally think it's OK to ask a client to see a neuropsychologist for an evaluation before changing a power of attorney or any other document."

That approach may become more common as the population of older clients grows. "We can't expect attorneys to be psychiatrists or psychologists, but more knowledge would aid in the quality of your practice no matter what your legal field is," says Terry Magady, an elder law specialist in Los Angeles who also writes and gives lectures on the topic. "Even a real estate or [personal injury] attorney should have a working knowledge of capacity in an aging client because it could very likely affect one's practice, which wasn't the case years ago. You need to know enough to know when to get specialized counsel involved."

For Magady, specialized counsel may be needed when there is a suspicion of undue influence or lack of capacity. "Of course, there are people in their nineties who could run circles around those in their forties, but as someone gets older, [a lawyer's] antenna can be more in tune to potential problems," he says. He adds that such honed attention may prompt practitioners to get answers to a few lifestyle questions, such as: "Does anyone ever see the person? Is the person isolated? Does the person seem dependent on others, particularly others who may have a profile for taking advantage-criminal problems, history of credit problems, no history of employment, drug or alcohol or gambling or money problems? Is there a lack of transparency in situations, financial or personal, where typically there would be more transparency?"

Diminished capacity in older adults can range from jarringly obvious to perniciously subtle. Generally, people have the capacity to make financial decisions if they can pay bills, track expenses and spending, plan for the future, and gain and exercise financial knowledge. Signs of diminished capacity include forgetting bills or paying them more than once, errors in everyday arithmetic such as the inability to figure out a tip in a restaurant, and judgment issues such as a sudden interest in get-rich-quick schemes.

Los Gatos psychiatrist Patrick Fitzsimmons is board certified in geriatric psychiatry and specializes in assessing capacity and susceptibility to undue influence. "An individual with dementia who is significantly cognitively impaired may look OK on the surface-have a veneer of being cognitively intact-but may have mental deficits that not only interfere with functioning in daily life but also with the abilities to make decisions and take actions with legal consequences, such as making a will or trust," he says. "It's important to ask questions that get past a veneer and get at the mental abilities someone actually has-on his own, unassisted."

Fitzsimmons believes it's important that when meeting with clients, lawyers take enough time to let the truth emerge. "Having more time than less gives an interviewer an opportunity to discover what a client's strengths and weaknesses really are," he says. "Asking open-ended questions, pursuing a line of questioning through to its conclusion, asking about details, and listening for telling details can all be helpful techniques."

Contra Costa Senior Legal Services has served clients aged 60 and older since 1976. Executive Director Verna Haas says the clinic instills safeguards by reducing all case information to writing to help clients who may need assistance with remembering details. "We also have two staff members attend the initial client meeting when we know capacity may be an issue so that the attorney can focus on the conversation with the client while the second staff member can take notes and record observations," she says. "And, as should be the case with all attorneys working with a client with possible diminished capacity, we carefully annotate the file and avoid conflicts of interest."

Little Legal Guidance

About 30 states have adopted the American Bar Association's model rule instructing lawyers on how to handle clients who suffer from diminished capacity. It states: "When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian." (ABA Model Rule 1.14.)

But California has not adopted that rule, leaving unresolved the ethics issue of what to do with a client who has real or suspected diminished capacity, according to Jerome Fishkin, who specializes in attorney ethics in Walnut Creek. "We're not nanny-lawyers. We don't substitute our judgment for the client's," he says. "As it stands now, the choice left to us is to withdraw from a case or advocate the client's position."

Cognitive decline due to normal aging or to disorders of aging such as Alzheimer's disease is a "primary driver of diminished financial capacity," says Daniel Marson, a lawyer now at the Department of Neurology at the University of Alabama at Birmingham. Marson advocates engaging in financial and legal planning well before a client's warning signs emerge. When signs of cognitive impairment do eventually surface, he says, they are not always recognized by the individual undergoing it, and people close to them are not always aware of it, or willing to "pull the trigger" on a conservatorship or power of attorney.

Marson hopes to soon release a short-form financial-capacity assessment for doctors to use in evaluating clients. But he cautions lawyers against using it-or any other tests for mental capacity. "Lawyers are not trained to give tests or to interpret the scores, and they could end up in trouble; they could end up practicing outside the scope of their expertise," he says.

Marson worked on the ABA's Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, which recommends that attorneys look for red flags that may indicate problems-including memory loss, communication and calculation problems, lack of mental flexibility, and disorientation. But these symptoms must also be viewed against mitigating factors, including "stress, grief, depression, reversible medical conditions, hearing or vision loss, or educational, socio-economic or cultural background." The handbook also stresses that observing clients in an office setting may not be enough; a lawyer may want to interview clients in their homes to see how they function in a familiar environment and to round out the total picture of their abilities and deficits.

One Client, Two Views

The legal system today still struggles with the tension between protecting older people's independence and protecting them from abuse. In Daniel's case, both sides continued to assert their differing views of his capacity to make his own decisions.

Called in to help mediate the situation, Carolyn Rosenblatt spoke with Daniel twice by telephone and believed his capacity was in a gray zone. "Maybe a person like this has testamentary capacity but has cognitive impairment and lacks sufficient judgment to make safe money decisions," she says. "That is what fools a lot of lawyers. They think if a client can carry on a conversation-regardless of the truth of it, which they never check out-the client is fine."

The case dwindled to an end, colored by the murkiness and confusion that still marks many financial elder abuse cases.

An unlawful detainer action eventually removed Daniel's roommates from the house. Saponara was told that they returned. Liz sought an elder abuse restraining order against the couple; it was denied. A mediation to address the housing situation was arranged among Daniel, Liz, and their attorneys. But on the appointed day, Daniel did not appear. Liz decided not to pursue a conservatorship.

Daniel died last year, the family home still in his daughter's name.

Janice Fuhrman is a staff attorney with Contra Costa Senior Legal Services.

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Donna Mallard

Daily Journal Staff Writer

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