As a consultant to families with aging parents, I hear a lot about abuse of elders, particularly by family members. There are the “good son, bad son” stories and their counterparts of “good sister, bad sister” scenarios. In most cases, an adult child of an elder sees or hears about suspicious financial moves by someone and wants to stop it.
It is unfortunate that elder financial abuse is so widespread. I have written about it frequently as it causes me anger and an intention to do what I can to intervene when asked. Financial abuse costs elders over $36B a year! Families calling the authorities to report it can lead only to frustration.
An example is a recent matter involving a wealthy 98 year old man we’ll call Jackson, who lives in an expensive home in California. He has two sons, neither of whom live in the same state as their father. The older son was appointed years ago to be a signatory on Dad’s large investment account as well as his agent on his Advance Healthcare Directive (also called “healthcare proxy” by some). As Dad aged, this older son, Terrance, (not his real name) decided that his father should move out of his own home and go live in Terrance’s state in a seniors’ home. Terrance wants control over his father’s very valuable home. But Jackson is happy where he is and has no intention of moving anywhere. Terrance began harassing his father to move, with repeated phone calls . Terrance’s brother, Monty, has heard of Terrance’s actions and is now in a standoff with his brother, telling him to leave Dad alone. The fight is on.
I was asked to advise on the matter by Jackson’s personal attorney and friend of many years. I was told that Terrance showed up at Jackson’s home, unannounced, barged in and tried to bully his father into signing over all legal authority concerning money, health decisions, and giving him authority to decide where Jackson would live. A caregiver who helps with daily chores was there at the time. Terrance ordered her to leave. She did, but returned later to find Jackson very upset and shaken by the experience. She reported the matter to Adult Protective Services (APS) in Jackson’s county. What happened after reporting is not atypical.
A social worker from APS came to Jackson’ home and spoke with him alone. The worker asked questions and determined that Jackson did have the capacity to make his own financial decisions. Apart from short term memory issues, he is very clear, alert and knows exactly where his money is and what he wants to do with it. He is clear that he wants to remain in his own home. He can afford caregivers. Did the APS worker do anything else? Did he make any effort to stop Terrance from bullying and abusing his father? No, he did nothing other than take the information and close his file.
A month later, Terrance made a second attempt to force his father to sign over extensive power to him. This time, he again showed up without notice or permission, made threats to his father that “something bad” was going to happen if he did not sign, and Terrance brought a notary with him to try to intimidate Jackson into signing the legal papers. Fortunately, Jackson had the presence of mind to refuse. This second incident was also reported to APS. Did they do anything that time to intervene? No. The belief that one can put a stop to financial abuse of an elder by reporting it is not accurate.
What is the excuse of APS, which has the opportunity to move such complaints to the District Attorney’s office? The DA deals with potential criminal cases. In CA, there are perfectly good criminal laws that give the DA a path to prosecute an elder abuser. There were witnesses, and other evidence available to prove what Terrance did. But they simply refuse to prosecute these cases, telling families “It’s a civil matter, and we don’t handle that”.
Families are frustrated. Laws about elder abuse do vary from state to state and some are very weak. But in CA where the laws are strong, designed to stop abuse, the kind of family abuse in this case is not often prosecuted by the DA even though it is indeed a criminal matter too. There are notable exceptions, but I hear similar stories from frustrated family members across the U.S. Do families have any other option?
They do if they wish to pursue a civil case. Civil cases are distinct from criminal cases and some specialized, skilled civil attorneys are adept at stopping the abuse. It starts with a “stay away” order from a judge, also called a restraining order or order of protection against the abuser. A civil attorney files a case and asks for this order, presenting witness statements and other evidence. Courts do grant them, with sufficient evidence. In Jackson’s matter, I referred the concerned brother, Monty, to a competent civil attorney, and he took immediate steps to get that order from the court. While that was going on, I urged Jackson, his close friends and caregivers to change the locks on Jackson’s house, to deny Terrance access if he showed up, and to stop any calls or contact from Terrance. They all agreed to do these things to protect Jackson.
This sad situation destroys family relationships, breaks a father’s heart and costs a lot in attorney’s fees in getting a restraining order. However, it is the only choice unless the elder gives in and goes along, as some do. The “willing victim” refuses to take civil action against a family member. The victim then can be forced out of his home, moved without his consent and placed anywhere the adult child with all the power over him wants him placed. No elder should spend his last days, feeling betrayed, depressed and hopeless.
The failure of Adult Protective Services and District Attorneys to stop family financial abuse through criminal courts is not universal. But it is common, in my experience of working with families over the last dozen years at AgingParents.com. The takeaway here is that if you see financial abuse happening in your family or to someone you know, seek the advice of a civil attorney as well as reporting the matter to the local authorities. You will at least know, by competent advice, whether there is a legal remedy available to you.
You can get expert advice from us at AgingParents.com about how to manage any crisis like that Jackson was going through. Call for an appointment today!
By Carolyn L. Rosenblatt, RN, Attorney, Mediator