Category Archives: Abuse

abuse of the elderly or of those with disabilities means all abusive behaviors directed against them including physical or sexual abuse, and financial exploitation,

Tips for Preventing, Detecting, and Reporting Financial Abuse of the Elderly

October 15, 2019

Reports of elder financial abuse continue to  increase, and the elderly are particularly vulnerable to scams or to financial abuse by family members in need of money.

It is hard to ascertain the exact numbers of people affected by elder abuse because studies show that elder abuse is underreported. However, one study found that financial loss from financial elder abuse could be close to $3 billion a year.

While it is impossible to guarantee that an elderly loved one is not the victim of financial abuse, there are some steps you can take to reduce the chances. One option is to have more than one family member involved in caring for the loved one. You can also encourage the elder to get involved in community activities to ensure that he or she has a wide range of support. Using direct deposit as much as possible is also helpful. And of course you should always screen caregivers carefully and verify references.

Financial abuse can be very difficult to detect. The following are some signs that a loved one may be the victim of this kind of abuse:

  • The disappearance of valuable objects
  • Withdrawals of large amounts of money, checks made out to cash, or low bank balances
  • A new “best friend” and isolation from other friends and family
  • Large credit card transactions
  • Signatures on checks that look different
  • A name added to a bank account or newly formed joint accounts
  • Indications of fear of caregivers

If you suspect someone of being financially abused, there are several actions you can take:

  • Report the possible crime by calling your local Adult Protective Services and state attorney general’s office. File a police report.
  • Explore options at your local probate court if your state has such courts. The court can intervene if someone in the family is misusing a power of attorney or their role as guardian or conservator.
  • Contact advocacy organizations. The National Center on Elder Abuse offers guidance on how to investigate and seek justice for elder abuse. State laws vary, but some have elder abuse statutes and may be able to get restitution for breach of fiduciary duties.
  • Try to get a temporary restraining order from a court while building your case.

Another valuable resource is Aging in Place’s guide to recognizing elder abuse.

Reports Find Hospice Deficiencies Go Unaddressed

September 3, 2019

Hospice care is supposed to help terminally ill patients maintain their quality of life at the end of their life, but two new government reports find that serious problems in some hospices may be actually causing harm to hospice patients. The reports propose that additional safeguards are needed.

Medicare provides a comprehensive hospice benefit that covers any care that is reasonable and necessary for easing the course of a terminal illness. Most hospice care is provided in the home or in a nursing home. State agencies or private contractors survey hospices to make sure they comply with federal regulations. If a hospice fails to meet a standard, the surveyor cites the hospice with a deficiency.

A pair of reports by the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) found that from 2012 through 2016, more than 80 percent of hospices surveyed had at least one deficiency and one in five had a deficiency serious enough to harm patients. About 300 hospices were identified as “poor performers” and 40 had a history of serious deficiencies.

The reports found that the most common types of deficiencies involved poor care planning, mismanagement of aide services, and inadequate assessments of beneficiaries. Some of the most serious problems that were found included a beneficiary who developed pressure ulcers on both heels, which worsened and developed into gangrene, requiring amputation of one leg. Another beneficiary developed maggots around his feeding tube insertion site. Both of these beneficiaries had to be hospitalized, which hospice is meant to prevent.

Meanwhile, the OIG found that it is hard for consumers to learn about which hospices are doing a good job. The Centers for Medicare and Medicaid Services (CMS) launched the Hospice Compare website in 2017, but the site does not include information from the surveyors’ reports. Hospices also do not have as strong reporting requirements as nursing homes. In addition, CMS has limited ability to discipline hospices other than to drop the hospice from Medicare.

The reports provide a number of recommendations to CMS to improve monitoring of hospices, including the following:

  • Expanding the data that surveying organizations report to CMS and using these data to strengthen its oversight of hospices
  • Taking steps to include the survey reports on Hospice Compare
  • Educating hospices about common deficiencies and those that pose particular risks to beneficiaries
  • Increasing oversight of hospices with a history of serious deficiencies
  • Strengthening requirements for hospices to report abuse, neglect, and other harm
  • Ensuring that hospices are educating their staff to recognize signs of abuse, neglect, and other harm
  • Improving and making user-friendly the process for beneficiaries and caregivers to make complaints.

To read the OIG reports, click here and here.

For National Public Radio’s coverage of the reports, click here.

FAMILIES’ AND RESIDENTS’ RIGHT TO KNOW: UNCOVERING POOR CARE IN AMERICA’S NURSING HOMES

July 1, 2019

courtesy of NAELA eBulletin:

INTRODUCTION
Many older Americans and people with disabilities living in nursing homes benefit from the care of dedicated leadership and staff members devoted to the health, flourishing and overall well-being of their residents. Investigative reporting, however, continues to identify facilities that fall short of the care standards required of every one of our nation’s nursing homes. In such facilities, some residents have experienced outright neglect, such as going without proper nutrition or languishing in filthy conditions. Some older adults and people with disabilities have even experienced physical abuse, sexual assault and premature death.1

Alarmingly, recent state survey findings reveal a number of such cases. Over the course of several years, at just one facility in Pennsylvania, documented instances include an unnecessary hospitalization resulting from an avoidable pressure sore, an escaped resident with dementia, mismanagement of medications, unsanitary shower and bathroom areas and uncleaned oxygen tubes.2   Further, a years-long investigation conducted by PennLive revealed an unsettling pattern of poor care in select Pennsylvania nursing homes involving improper wound care, insect infestations, supply shortages and more.3   Unfortunately, these are not the only instances of drastically substandard care. This report examines federal oversight of our nation’s consistently poor-performing nursing homes.

Many documented cases of abuse and neglect occur in facilities affiliated with the federal Special Focus Facility (SFF) program.4   The SFF program is designed to increase oversight of facilities that persistently underperform in required inspections conducted by state survey agencies.5   As stipulated by federal law, the SFF program targets those facilities that “substantially fail” to meet the required care standards and resident protections afforded by the Medicare and Medicaid programs.6

For the rest of the report go to:   U.S. Senator Bob Casey (D-Pa.) and U.S. Senator Pat Toomey (R-Pa), June 2019, FAMILIES’ AND RESIDENTS’ RIGHT TO KNOW:  UNCOVERING POOR CARE IN AMERICA’S NURSING HOMES 

Link of the Week: Elder Justice: What “No Harm” Really Means for Residents

July 1, 2019

courtesy of NAELA eBulletin:

The majority of nursing home violations are identified as causing “no harm” to residents, despite any harm the resident may have actually experienced. Sadly, the failure to recognize resident harm when it occurs too often means that nursing homes are not properly held accountable for resident abuse, neglect, and other forms of harm. In order to bring attention to the poor enforcement of the nursing home standards of care, and how it effects resident care, the Center for Medicare Advocacy and the Long Term Care Community Coalition publish Elder Justice: What “No Harm” Really Means for Residents. Each issue of our Elder Justice newsletter provides readers with real stories of resident pain, suffering, and humiliation from across the country. All of our examples were taken directly from Statement of Deficiencies on CMS’s Nursing Home Compare Website and all were cited as no-harm.

Note – the files below are .pdf files that are best viewed in any browser except Internet Explorer.

Vol. 2, Issue 2
Vol. 2, Issue 1
Vol. 1, Issue 12
Vol. 1, Issue 11
Vol. 1, Issue 10
Vol. I, Issue 9
Vol. I, Issue 8
Vol. I, Issue 7
Vol. I, Issue 6
Vol. I, Issue 5
Vol. I, Issue 4
Vol. I, Issue 3
Vol. I, Issue 2
Vol. I, Issue 1

10 Facts Funeral Directors Don’t Want You to Know

June 4, 2019

Funerals are among the most expensive purchases many consumers will ever make, ranking only behind the purchase of a home and an automobile. A traditional funeral, including a casket and vault, can start at around $7,000, although “extras” like flowers, obituary notices, acknowledgment cards or limousines can add thousands of dollars to the bottom line. Many funerals run well over $10,000.

But it’s possible to spend much less if you don’t let funeral directors pressure you into buying goods or services you don’t want or need. To help consumers resist such pressure and become more informed, Bankrate.com has compiled a list of “10 things funeral directors don’t want you to know.” The list is summarized below:

  1. Shopping around for funeral services can save you thousands of dollars.
  2. Funeral directors are not clergy. Although consumers tend to trust them implicitly and believe everything they say, it is well to remember that funeral homes are in business to make money.
  3. Embalming is rarely required when the person will be buried within 24 to 48 hours.
  4. Seeing your loved one prior to burial without the benefit of embalming will not leave you with unresolved grief issues. “If more people knew what embalming entailed, they would not choose to do it,” says Joshua Slocum, executive director of the Vermont-based Funeral Consumers Alliance, a not-for-profit consumer information and advocacy group.
  5. Sealed caskets, which add considerable cost, cannot preserve a body.
  6. A funeral provider may not refuse or charge a fee to handle a casket you bought elsewhere.
  7. You don’t need to spend more than $400 to $600 for a modest casket.
  8. You do not have to buy the funeral home’s entire package of services. You may pick and choose the services you want.
  9. You can plan and carry out many things on your own to honor your loved one without paying for services from a funeral home.
  10. Local funeral and memorial societies can help consumers find ethical establishments and often negotiate discounts for their members. For example, the Funeral Consumers Alliance has 115 chapters in 46 states around the country.

All funeral homes must comply with the Federal Trade Commission’s Funeral Rule. The Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. The rule also stipulates what kinds of misrepresentations are prohibited and explains what items consumers cannot be required to purchase, among other things. For more on the rule, click here.

For the FTC’s series of articles on Shopping for Funeral Services, click here.

Bank Accounts and the Power of Attorney Designation

June 4, 2019

NAELA News:

Michael P. Affuso, EVP/Director of Government Relations, NJBankers

A power of attorney is a useful document for people to appoint someone to handle their financial affairs if, for some reason, they cannot do so themselves. It is one of the three important documents prepared by attorneys for their estate planning clients. This document allows the “agent” or “attorney-in-fact” identified in the document, to sign checks, open and close accounts, sell real estate, sign tax returns and other financial acts, on behalf of the “principal”, the person signing the document.

The agent is a fiduciary under the law. This mean that the agent must act in the best interest of the principal. Money belonging to the principal cannot be spent on the needs of the agent, or for the interests of the agent. If this duty is violated, legal liability may ensue. This raises the issue of how banks should designate an agent on the account of a principal.

Many times an agent will ask to be added to the account of a principal. Often, this is a daughter or son of a parent depositor. The power of attorney document will be presented, or the child will appear at the bank branch with the parent asking to be placed on the parent’s account. It is important that the agent not be added to the account as a joint owner, but as agent under a power of attorney.

Joint Owners Have Full Rights of Ownership

A joint owner of an account has an ownership right to all of the money in the account. If the account merely says, “Jane Smith and Susan Smith”, both can use all of the account proceeds for their own purposes, by law. This is not what the power of attorney intended, nor is it consistent with the legal duties of the agent. In fact, it is not an uncommon complaint that the agent took all of the parent’s money and disappeared, or used the money for their own needs. Financial exploitation by the elderly is common, and, statistically, it is often inflicted by family members.

Law enforcement officials are reluctant to pursue this type of theft because the joint owner has a legal right to take the money out of the account. The legal duties of the agent are irrelevant, because the account was jointly held. This would not be the case if the letters, “POA” appeared after the agent’s name on the account.

Joint Accounts Are Subject To The Liabilities Of The Agent

If an agent is placed as a joint owner on a bank account, such as a daughter on her mother’s account,  the account is subject to the liabilities of the agent/daughter. Any number of things can unexpectedly happen to the daughter and expose the mother’s money to creditors and others. For example, the daughter could be sued, file bankruptcy, get divorced or die. If this happens, the mother’s money in that account will be subject to pay the judgment, be placed under the control of the bankruptcy trustee, be involved in the divorce proceedings, or be part of the daughter’s estate. This could cause serious problems for the true owner of the account.

Properly Designate All Accounts By Using “POA”

If an account holder wants to add someone to their account as power of attorney, it is extremely important that the agent be designated properly. The agent should be designated on the account as “POA”. In this way it is clear that the son or daughter is acting on the account in a fiduciary capacity.

This will empower law enforcement officials to take action in the event of financial abuse and will protect the principal’s money from claims involving the agent. This designation of “POA” is crucial to avoiding the financial abuse of the elderly.  It will also prevent catastrophic loss of money belonging to the principal if creditors or others have claims against the agent.

 

Financial Institutions Report Widespread Elder Financial Abuse

March 29, 2019

The Consumer Financial Protection Bureau (CFPB) has released a report on financial exploitation of the elderly. The report compiles information from Suspicious Activity Reports (SARs) submitted by banks, credit unions, casinos, and other financial services providers.

Based upon the SARs, financial institutions have reported that financial exploitation of older adults by scammers, family members, caregivers, and others is widespread in the United States.

Key findings:

  • SAR filings on elder financial exploitation quadrupled from 2013 to 2017.
  • Financial institutions reported a total of $1.7 billion in suspicious activities in 2017, including actual losses and attempts to steal the older adults’ funds.
  • Nearly 80% of SARs reporting elder financial exploitation involved a monetary loss to older adults. The average amount lost was $34,200. In 7% of the cases, the loss exceeded $100,000.
  • One third of the individuals who lost money were ages 80 and older. Adults ages 70 to 79 had the highest average monetary loss ($45,300).
  • Losses were greater when the older adult knew the suspect.
  • More than half of SARs reporting elder financial exploitation involved a money transfer. The second-most common financial product used to move funds was a checking or savings account.
  • Checking or savings accounts had the highest monetary losses. The average monetary loss to the older adult was $48,300 in cases of elder financial exploitation involving a checking or savings account while the average loss was $32,800 in cases of elder financial exploitation involving a money transfer.
  • The elder financial exploitation took place, on average, over a four-month period.
  • Fewer than one-third of older adults who were exploited reported the abuse to a local, state, or federal authority. Only 1% of the SARs stated that the financial institutions involved reported the elder financial exploitation to a government entity such as adult protective services or law enforcement.

The report is is attached here –cfpb_suspicious-activity-reports-elder-financial-exploitation_report .  For additional information concerning elder abuse actions, visit:
https://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions-2/

Understanding Undue Influence

February 27, 2019

Courtesy of NAELA News:

David Godfrey, American Bar Association Comission on Law and Aging

Understanding undue influence is a core component of advising clients in their advance planning, as well as preventing and spotting elder abuse. Undue influence replaces the will or free choice of the individual with the will or choice of another person. When someone exerts undue influence over another person, they are abusing persuasion to overpower the will of the individual. This influence can be core to acts of financial exploitation, psychological abuse, physical abuse, and health care decisions that do not reflect the true wishes of the person.

State law and case laws define the necessary elements to assert a claim of undue influence in each state.  Generally, in a claim for undue influence:

• The person is vulnerable—has a reduced ability to resist persuasion;
• The perpetrator is in a position of power or authority;
• The perpetrator overpowered the will of the person;
• The outcome was unfair or improper.

Undue Influence and Elder Abuse

Lawyers counseling older adults should always be on the lookout for undue influence. The most  common claims of undue influence involve financial exploitation. For example, the older adult may make  a gift, sign a document, sell property for less than fair market value, or overpay for goods or services. These  situations may be signs that an abuser is using undue influence on the client. Undue influence is often used  by abusers to convince a person that the abuser is the only person who cares for them. This isolates the older
adult from others—a form of psychological abuse. Isolation increases risk of further abuse and exploitation.  Undue influence is used to convince persons that physical acts they would not willingly consent to are acceptable. Undue influence is used to persuade people on what health care they should receive or not receive.

Undue Influence Screening Tool

California has developed a screening tool for undue influence for use by Adult Protective Services (APS).  The tool provides a clear step-by-step screening process and has application well beyond APS. It directs the  agent through questions on four areas: vulnerability of the person, the position of power or authority of the perpetrator, the actions used to persuade the person, and how or why the outcome is bad for the person. This tool can be used across disciplines or customized to particular settings. Rather than relying on instincts, the tool gives guidance to understanding what the client is experiencing.

The California Elder Justice Coalition website has a good collection of resources and research on undue influence and elder abuse.

NCLER has created several resources to help attorneys counseling older adults to help prevent and address elder abuse:

• Elder Abuse: The Impact of Undue Influence
• Legal Basics: Elder Financial Exploitation
• Drafting Advance Planning Documents to Reduce Risk of Abuse or Exploitation

Please contact ConsultNCLER@acl.hhs.gov for free case consultation assistance. Sign up for our email list and access more resources at NCLER.acl.gov.

2018’s States with the Best Elder-Abuse Protections

January 2, 2019

Abuse happens every day and takes many forms. But vulnerable older Americans are among the easiest targets for this misconduct, especially those who are women, have disabilities and rely on others for care. By one estimate, elder abuse affects as many as 5 million people per year, and more than 95 percent of all cases go unreported.

Unless states take action to prevent further abuse, the problem will grow as America becomes an increasingly aging nation. The U.S. Census Bureau expects the population aged 65 and older to nearly double from 43.1 million in 2012 to 83.7 million in 2050, much to the credit of aging Baby Boomers who began turning 65 in 2011. And by just 2030, 1 in 5 U.S. residents will be retirement age.

View the full Article

New Federal Law Puts Focus on Preventing Elder Abuse

May 1, 2018

Source: ELA news

A new federal law is designed to address the growing problem of elder abuse. The law supports efforts to better understand, prevent, and combat both financial and physical elder abuse.

The prevalence of elder abuse is hard to calculate because it is underreported, but according to the National Council on Aging, approximately 1 in 10 Americans age 60 or older have experienced some form of elder abuse. In 2011, a MetLife study estimated that older Americans are losing $2.9 billion annually to elder financial abuse. Continue reading