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Elder abuse and guardianship

Is it really the family ?

 

The definition of elder abuse in the United States, varies on the basis of each state’s statutes and regulations. Researchers also use different definitions to describe and study the issue. However, the World Health Organization (WHO)^[and US Department of Justice (USDOJ) define elder abuse as follows:

“Elder abuse is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.”

The National Center on Elder Abuse (NCEA) and the Centers for Disease Control and Prevention (CDC) use similar language. Thus, a broad definition of elder abuse is intentional actions that injure or put a vulnerable elder (typically considered age ≥60 years) at risk of injury by a caregiver or another person who has a relationship with the elder. Elder abuse also includes the failure of a caregiver to provide for the elder’s basic needs or to protect the elder from harm.

In studying this issue it should be obvious that family members are typically the caregivers of first choice across America donating hundreds of billions of dollars a year of free care to their family members. It is only logical that if and when abuse and exploitation occurs from a caregiver that it would likely be from a family member who likely undergoes enormous stress, financial duress, exhaustion and most importantly is never paid or repaid for what might be years of draining, expensive, magnanimous loving devoted care before falling into the trap of resorting to improper actions which constitute one form of abuse or another.

And abuse can take many forms.

The NCEA identifies seven kinds of abuse involving the elderly. These include physical, sexual, emotional, financial, abandonment, neglect and self neglect.

 

In researching the root causes of the abuses we so frequently see in guardianships across the country we often hear anecdotal statements from  “experts” or academics that imply that families are the biggest cause of guardianship abuse.

One oft quoted study that supports the popular narrative by Dr. Mark Lachs from Cornell Med School in 2004 reached the conclusion that families are responsible primarily for elder abuse. However close analysis of his study reveals that his data came strictly from telephone calls–but only to people who had no evidence of dementia and therefore the study would have excluded every ward or potential ward. So inferring from this study that families primarily cause abuse of the elderly in guardianships is simply an incorrect conclusion.

Additional confusion about the outcomes of similar studies is generated by the different definitions of abuse. Students of the field have recognized that, as documented by the National Adult Protective Services organization , https://www.napsa-now.org/get-informed/what-is-financial-exploitation/ there are a number of  subcategories of  just financial abuse including but not limited to :

• Theft: involves assets taken without knowledge, consent or authorization; may include taking of cash, valuables, medications other personal property.
• Fraud: involves acts of dishonestly by persons entrusted to manage assets but appropriate assets for unintended uses; may include falsification of records, forgeries, unauthorized check-writing, and Ponzi-type financial schemes.
• Real Estate: involves unauthorized sales, transfers or changes to property title(s); may include unauthorized or invalid changes to estate documents.
• Mortgage: includes financial products which are unaffordable or out-of-compliance with regulatory requirements; may include loans issued against property by unauthorized parties.
• Investment: includes investments made without knowledge or consent; may include high-fee funds (front or back-loaded) or excessive trading activity to generate commissions for financial advisors.
• Insurance: involves sales of inappropriate products, such as a thirty-year annuity for a very elderly person; may include unauthorized trading of life insurance policies.

 

And to make things even more complicated as noted by NAPSA Definitions of financial exploitation vary from jurisdiction to jurisdiction.

All of the seven categories above are well-known tactics of professional guardians around the country.

It is important to note that there are no reliable large scale data of any kind to support a broad  conclusion that family are the prime cause of any single type of the many financial abuses that exist in guardianships and there is no data to quantify the dollar amount of financial abuse attributable to families versus non family guardians in guardianships.

We do not know the number of guardianships in the United States, the breakdown of family versus non family guardianships, the number of dollars involved in the different types of guardianship abuse, but family guardians even at their worst have access to only one family’s money and assets thus limiting the dollar amount of damage they can possibly do. Alternatively, professional guardians, as has been seen in nearly every state across the country, can and often do have access to many hundreds of ward estates at any given time. Once a professional guardian takes control of ward assets, those assets are forever removed not only from the ward but also from her inheritors and downstream generations forever.

Although there is no excuse for families perpetrating elder financial abuse, at least the proceeds of that action go to a family member rather than a court insider predator. Also, it should be noted that family generated elder financial abuse, while clearly under reported, is much more likely to be spotted and acted on by regulatory agencies and law enforcement because of the availability of Adult Protective Services, banking regulations designed to identify family generated elder financial abuse, and the likelihood that other family members will take action against an abuser in their midst.The opposite situation exists in professional guardianships which are court protected, unassailable and intentionally ignored by Law enforcement.

We need to rethink and be more specific about all forms of elder abuse and their causes. If the day ever comes when valid data are available for analysis– for example when courts can no longer routinely sequester information about guardianships– I believe we will find that the degree of dollar damage – not to mention emotional damage, over medication, isolation –done by commercialized professional probate guardianships far outweigh a comparable cohort of family guardians. To identify the real villains in this guardianship crisis we need to ask the question– how much abuse is generated per Guardian over their lifetime.

Of course, family guardians are far from perfect and they do sometimes act improperly and they should be taken to task when appropriate. We also need to be sure that family guardians receive adequate amounts of free training so that they don’t fall into the trap of committing process crimes– such as failing to understand the need to do annual reports, budgets and plans in a timely fashion.

But we cannot allow the conventional wisdom of “it’s all the fault of families” to go unchallenged because our legislators have bought into it including in Washington including Susan Collins of the Senate Select Committee of Aging. The damage done around the country to vulnerable wards by court insider’s and professional guardianships is massive and until we change the narrative away from blaming just families there will be little impetus to replace or reform a system that is fatally broken and causes massive pain-and-suffering to the very families that are so often crassly accused of wrongdoing.