Posted by: Kim_Hamilton on 01/12/2009 03:46 PM
Updated by: Kim_Hamilton on 01/12/2009 03:47 PM
Expires: 01/01/2014 12:00 AM
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Legal Issues with Estates....Combating Elder Abuse~By Alan Horvath, Attorney at Law
January 12, 2009 – Combating Elder Abuse...My goal in this article is to provide the reader with an overview of Elder Abuse and the resources available to anyone confronting that problem. Are you over 65? Do you have family members who are? Do you have friends or neighbors who are? Have I left anyone out? Hopefully not, because the intent behind the state laws prohibiting Physical and Financial Elder Abuse is clearly to cast as wide a net as possible. In enacting these laws, the state has said that our elders are an important part of our society, and that they are in need of, and deserving of, special protections from the state. Enter center stage; Adult Protective .....
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Everyone in the community should know about Adult Protective Services. Why?, because Adult Protective Services, or APS, is charged with the task of finding out IF something is wrong. When APS receives a report from the community indicating a possible problem involving the physical or financial well being of an elder, they are charged with the responsibility to investigate. Within 2 hours in an emergency, or otherwise within 10 days. This is a State mandate.
“Reports from the community” means from you and me. The state is hopeful that if we think something is wrong, we will say so. To APS. The report of our suspicion is confidential. It isn’t up to us to find out how big the problem is, just to give a heads up. APS takes it from there.
Now having said that, it is equally important to say this is not a mandate for everyone to become a busybody. What the state is trying to prevent or interrupt is Elder Abuse or Neglect. So what is Elder Abuse?
Physical elder abuse includes the willful striking of an elder. Basically, this is a battery, but against someone over 65. It’s a separate crime of its own and carries a higher penalty. But physical elder abuse can also include much more passive behavior. In fact doing nothing can be physical elder abuse if an elder is dependent on you for their care, and you willfully leave them in a situation that can seriously damage their health. If your mother is living with you, and is bedridden, and you make no provisions to prevent bed sores, that is elder abuse. If you leave her home alone in bed with no way to take care of her bodily needs, that is elder abuse. If you are willfully responsible for actions or inactions that pose a threat to an elder under your care, that is elder abuse.
There is also financial elder abuse. That is basically theft against an elder. But again with a broader definition than normal. If you take an elder’s money through undue influence, with the intent to deprive then of it, that is financial elder abuse. So what is undue influence? Undue influence is when you convince an elder to do something, not because they want to, but because you want to. When an elder starts to lose mental capacity, it’s going to be hard to draw the line between advice, and undue influence. The legal guideline for capacity is whether the individual understands the consequences and is able to bargain in their own behalf. When you are dealing with someone under age 65, consent is a defense. They agreed to give you their money, then it can’t be theft. But if they are over 65, and if they do not clearly have capacity, then consent is no longer a defense. If they gave you their money, because they didn’t know any better, and you are intending to use it for your own benefit, then you are guilty of elder abuse.
Now, getting back to APS and the community, the picture you should be getting is that if you have family, friends and neighbors, living in Calaveras County, and you see signs that they are being either physically abused or financially taken advantage of, then report it.
Now all of this is a very good thing if you are an elder, and you are being abused, and you are unable for whatever reason to take action on your own behalf. However, I would suggest that this benefit comes at a price. That price is being willing to structure your own affairs while you are still competent so that the APS social worker isn’t left trying to guess what is going on when you no longer are competent. It is a pretty safe bet that none of us ever want to be physically abused. In fact, the law doesn’t really even give us a choice in that matter. It is not so obvious what someone wants done with his or her money.
If it is your intent that your son should have your money no strings attached, then you ought to be sure and give it to him while you clearly have capacity to make that decision. If on the other hand, it is your intent that your son should use your money for your care, then you ought to have a document, a trust, or at least a detailed Power of Attorney, that makes that statement, and that provides some instructions as to the care you expect and the guidelines to be used.
If you do neither, but simply give your son a check, and tell him to go to the bank, sign your name, and cash it, you are going to have APS all over you. And rightfully so. The state requires APS to intervene on your behalf when such intervention seems necessary. The state requires the bank to report the fact that your son is cashing checks out of your account and you are no where to be seen. You owe it to yourself, to your son, to the bank, and to APS to make it clear what you want to have done. There are very good ways to do this, and if you make use of them, APS can both stay out of the way when things are following your instructions, and intervene if they are not.
Having made that diversion into the “Ounce of Prevention” discussion, I would like to return to APS and the issue of addressing a problem once it has occurred.
APS is the front end on the elder law enforcement mechanism provided by the state. APS is the starting point, the point of contact. APS is staffed by trained and caring social workers who can bring to bear not only the threat of further state action, but a considerable moral persuasion of their own. If you have a problem personally, this is a logical place to start. It is free, and it is supportive.
If APS can not resolve a problem through voluntary action by the misdoer, their next step is through the Sheriff’s department to the District Attorney, and ultimately to criminal charges.
There are pluses and minuses to what the state can do for you at that point. An obvious plus is that it costs you nothing for their assistance. On the other hand, bringing criminal charges carries with it the disadvantages of having to prove an intent and having to meet a legal standard of beyond a reasonable doubt. If the primary objective is to get the offender off the street, then this is the only game in town.
On the other hand, if the primary objective is to get your money back, and it still exists somewhere, then you have the choice of pursuing your grievance as a civil claim. This means you hire an attorney and pay for him or her yourself. But it also means you do not have to prove your abuser intended to deprive you of your money, only that it is your money and you never intended him to have it. You also only need to make your case to the standard of more likely than not.
I’ve covered a lot here, so I would like to review. The state has laws prohibiting elder abuse, either physical or financial. Physical elder abuse includes not only battery, but inaction when that inaction will threaten the physical well being of an elder dependent on your care. Financial elder abuse includes any actions by which you deprive an elder of their resources without their KNOWING consent.
If you, or a friend, neighbor, or relative, is being subjected to elder abuse, report it to the Adult Protective Service. 209 754-6452. In addition, if the problem is financial elder abuse, and you are willing to pay for the legal help you need, contact a private attorney.
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