Protecting Seniors from Elder Abuse

protecting-seniors-of-elder-abuse

by Dana Bookbinder, Esq.~Financial exploitation, physical or emotional abuse, and neglect of the elderly is more common than most of us realize. The cumulative amount taken from seniors each year in our country is reportedly in the billions. Most of the victims are women in their 80’s, and it is estimated that roughly half of the abuse is caused by individuals known to their victims as friends, relatives, advisors, or caregivers. Incidences reported in the newspapers have even involved social workers and attorneys as perpetrators. Fortunately, there are protective measures available to reduce the risk.

Elder abuse is known to be severely underreported. The crimes committed by people known to the elder are less likely to be reported because the elder typically wants to protect the family member, the elder may feel partly responsible, she may fear that admitting vulnerability will lead to her being placed in a nursing home, she may fear retaliation, she does not want government interference, or she simply may not remember the events.

Those who serve as caregivers for elderly relatives have a tremendous burden which increases the risk of abuse. The strain can be further complicated if the elder has dementia or Alzheimer’s. Caregivers are often stressed, depressed, inadequately trained, or feeling like they are lacking social support. Often, they are financially dependent on the elder.

Education is one tool to guard our seniors that has potential to decrease the number of incidences and also increase the likelihood that an incidence will be reported. Families need to be aware that a co-dependent relationship between a senior who needs care and a younger relative who needs money can sometimes irrevocably sour their relationship. Seniors need to understand that certain occurrences can and should be reported. Seniors can also be educated on the wide range of resources at their disposal, such as a daily money manager to pay bills.

Legal documents such as a General Durable Power of Attorney or a Revocable Living Trust can appoint an individual to manage assets for another as necessary while giving the appointee a legal duty to act in the individual’s best interest. Individuals must execute these documents while they are competent to wisely determine the most suitable agent, whether it be a family member, friend, or professional. If a senior does not possess the requisite capacity to sign a legal document, an individual can apply to a court to become a legal guardian for the senior. This process is lengthier and more costly than signing legal documents, but it clarifies who has authority to access the individual’s finances. Moreover, the court appointed guardian has an ongoing obligation to report to the court on the senior’s finances.

Like a guardianship, a conservatorship is a court proceeding that appoints an individual to handle another’s financial matters. In a conservatorship, the senior may be competent to understand his own financial matters but may be vulnerable to influences.
Using a professional, such as a geriatric care manager or home care company, can relieve family members, provide oversight, and lead to more objective decisions. Having social supports also help protect the senior from isolation and increased vulnerability. Even respite care in a facility for a short period of time can ease strain on the caregiver.

Financial exploitation may be prevented by simply having another individual receive duplicate financial statements to monitor the spending of a senior’s assets. Families with a relative who has special needs should consult with a special needs planner to construct a budget to estimate monthly spending.

Once abuse occurs, the first step to address it is to place a call to Adult Protective Services for the county in which the senior lives. Once the call is made, Adult Protective Services sends a caseworker to meet the senior and the perpetrator and assess the situation. Adult Protective Services is trained to look for signs of neglect or abuse. Adult Protective Services can determine if any criminal activity is present that should be reported.

For individuals who are institutionalized, the Office of the Ombudsman for the Institutionalized Elderly investigates complaints regarding long term care facility residents and can sanction the facility if necessary. As with Adult Protective Services, the identity of the individual who lodged the complaint will remain hidden from the alleged perpetrator.

If sufficient evidence exists of theft, fraud, deception, larceny, forgery or embezzlement, the county prosecutor’s office may pursue the issue. However, because the crimes must be proven “beyond a reasonable doubt” and because the funding for these programs addressing elder abuse is limited, the prosecutor’s office rarely gets involved in these cases.

Some states impose a duty upon individuals in certain professions that involve substantial contact with seniors to report elder abuse if they reasonably suspect it is occurring. Other states specifically identify certain types of elder abuse as criminal activity.
Simply making seniors aware of the risk and attaining better supervision and support in caregiving situations where a senior has dementia can reduce the risk of elder abuse.

Legal planning can also establish a process for decisionmaking if the senior becomes incapacitated. Tools are available to address abuse once it occurs, but more can be done. Elder abuse is an issue that deserves attention, additional law enforcement resources, and strong legislation.

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About Dana Bookbinder

DANA E. BOOKBINDER, ESQ. is the Founder of Bookbinder Law, LLC and has been advising families throughout South Jersey for nearly two decades on legal issues concerning asset protection for long term care expenses, public benefits eligibility rules, disability planning, and estate planning. Ms. Bookbinder has been certified as an Elder Law Attorney by the ABA accredited National Elder Law Foundation. www.bookbinderlaw.com

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