Elder Advocacy

The Elder Abuse Problem

Within the next 12 months, at least one in three senior citizens will fall victim to some form of elder abuse, and that’s only the tip of the iceberg. Studies have found that incidents of abuse are significantly under-reported (one of every five by some estimates). Under-reporting is due, in part at least, to the fact that the perpetrator is often someone the victim knows and trusts and that not all incidents of abuse are considered criminal. Bogus lottery telephone solicitations, phishing expeditions on the internet, and door-to-door home repair scams are obvious threats to watch out for. Studies show that the real danger is often closer to home with 90% of abusers being identified as family members or trusted caregivers.

What is Elder Abuse and Who is an Elder?

Elder abuse can take many forms ranging from physical and emotional abuse and neglect, to financial exploitation. Massachusetts has adopted statutes designed to protect its senior citizens by categorizing conduct considered abusive and specifying that citizens 60 years of age or older are entitled to special legal protection. But such laws, however well-intentioned, have limitations. One notable problem is the statutes usually come into play after the fact in order to punish someone suspected of abusive conduct with little if any meaningful impact on preventing the abuse in the first place.

What is Financial Exploitation?

Financial exploitation is any conduct (act or omission) which causes significant money or property loss to an elder person or which causes a substantial money or property gain to another person at the elder’s expense. That the elder “consented” may not matter. If consent was coerced or obtained by misrepresentation or threat or the elder lacked capacity, the consent is voidable. Sadly, common examples of financial exploitation include misuse of durable powers of attorney and bank accounts by individuals the elder relied upon without question. The problem has serious financial consequences. Numerous studies estimate the financial cost of elder financial exploitation to be in excess of billions of dollars each year. For the elder, the loss of life savings, and in some cases, the home, can be devastating.

What Can We Do?

The first line of defense is advance financial planning by the elder and the thoughtful selection of fiduciaries and health care agents before any need for assistance arises. In this context, a fiduciary may be the elder’s designate as attorney-in-fact under a durable power of attorney, or nominee for appointment as personal representative or trustee. A health care agent is the elder’s designate to make health and quality of life decisions for the elder when the elder is no longer capable of doing so. This kind of advance planning requires honest assessment of capabilities and, often, hard choices on the part of the elder. In many cases, the best candidate may be someone other than a son, daughter, or other close relative. Frank communication regarding the elder’s intentions and expectations is essential. Equally capable and trustworthy successor fiduciaries should always be designated. When and if the elder becomes unable, temporarily or permanently, it falls to the fiduciary to advocate for the elder’s best interest in all things at all times.

The assistance of an experienced elder law attorney can be invaluable in the prevention planning process and with litigation when abuse is suspected, threatened or has occurred.