Reprint permission from the January 2000 issue of CBA Record.
The victimization of the elderly, often by a spouse or adult child, is virtually a national epidemic. A complex mix of psychological, social, and economic influences contributes to elder maltreatment in more than 2 million American homes every year. See Linnear Ward Griffin and Oliver J. Williams, Abuse Among African-American Elderly, J. FAM. VIOLENCE 7(1) (1992).
The phenomenon of elder abuse is a tragic consequence of two trends which may reinforce one another: the decline of the family and an increase in social pathology.
Rarely do extended families live together, as they once did, or share responsibility for their elderly relatives; and, with small, mobile nuclear families the norm, fewer family members are accountable for the care of the elderly. As we live longer and may become dependent on only one caregiver, his or her emotional disorders, alcoholism, drug addiction, or financial problems compound the stress of caregiving and may trigger violent or exploitative behavior.
Lawyers are obliged to promote their clients interests and, when a client is particularly vulnerable, the lawyer is permitted, and often encouraged, to take protective action on the client's behalf. When representing the elderly client, the lawyer should take special care to identify the symptoms of abuse, neglect, or financial exploitation.
Signs of Abuse or Neglect
Physical abuse or neglect may be signaled by unexplained injuries, excessive weight loss, unkempt appearance, poor hygiene, withdrawal, anxiety, helplessness, or a hesitation to talk openly. Financial exploitation may manifest itself when the client's care needs are not being met or bills are not being paid despite adequate income; when personal loans are not repaid; when valuables are missing; or when powers of attorney are signed or asset transfers effected by a client who is unable to explain the rationale behind them.
Other signs of possible elder abuse can be found in the behavior of the caregiver, who may appear indifferent or hostile toward the older person. The caregiver may withhold affection or may threaten or intimidate the older person, and, defying reason, may even blame the older person for his or her own plight.
Frequently, the older person will deny any problems, appear to fear the caregiver, give accounts of incidents at odds with those of the caregiver, and lose touch with other family members and friends. In short, the classic picture is one of withdrawal, resignation, and helplessness.
Although the lawyer may reasonably suspect abuse, there may in fact be none. On the other hand, if a client is so controlled by an abuser as to be effectively rendered incompetent, the laws of agency might operate to terminate the lawyer-agent's authority to serve the client's needs.
Illinois Supreme Court Rule 1.14 (1990) requires that, "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired...the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship," but "(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest."
The latter language, drawing on the ancient precept that danger invites rescue, mirrors language found within the Model Rules of Professional Conduct (1983, as amended). It is suggested that a lawyer is permitted to take protective action even if not immediately necessary to the effective representation of the client, ABA Committee on Ethics and Professional Responsibility, Formal Op. 96-404 (1996). Although withdrawal is an ethically permissible alternative if it can be accomplished without material adverse effect on the interests of the client, MODEL RULES 1.16(b), the Committee seems to discourage it on the grounds that it "only solves the lawyer's problem and may belittle the client's interest," C. W. Wolfram, Modern Legal Ethics 162 (1986).
Ways to Protect Client
The lawyer seeking to protect the client has several choices, to be selected singly or in combination depending upon the client's needs. They include the following:
The first and often most important step to consider is to make an elder abuse report. Although lawyers are not required to report suspected abuse, neglect, or exploitation of an elderly person as most other professionals are (under the Illinois Elder Abuse and Neglect Act, 320 ILCS 20/1-20/13), they are encouraged to do so. Reporters, including voluntary reporters, who act in good faith are exempt from civil and criminal liability as well as professional disciplinary action. By calling the Illinois Department on Aging's Senior HelpLine in Chicago at 1-800-252-6920 during regular business hours, or its After-Hours Elder Abuse Hotline at 1-800-279-0400, the lawyer will initiate a process of intake, assessment, and follow-up.
When making a report, the attorney should be prepared to furnish the Department with as much relevant information as is available, including the older personĒs name, address, age, phone number, and condition; the suspected abuser's name, age, and relationship to the older person; the specific circumstances which raise suspicion; whether the older person may be in immediate danger; how best to contact the older person; whether the older person knows of the report; whether an investigative case worker might be in danger were he or she to visit the older person; and the identities of the reporter and anyone else who might be knowledgeable about the situation.
A caseworker will visit the older person (within 24 hours in the event of a life-threatening situation, 72 hours for most other cases of suspected physical abuse, and within a week in cases of alleged financial exploitation or emotional abuse) and will have 30 days to assess the older person's needs. If abuse is found, the caseworker and the older person will develop a case plan designed for protection and allow the older person to maintain as much independence as circumstances will reasonably permit. The caseworker might recommend in-home care, adult day care, health services, counseling, or other interventions. He or she might also secure mental health, substance abuse, or other services for the abuser.
The caseworker may monitor the situation for up to 15 months, or even longer if new reports of abuse are substantiated. Throughout the period, he or she will reassess the older person's needs and may provide other help.
When financial abuse is suspected, the attorney might consider establishing a supervised bank account into which the older person's income is directly deposited; a trust; a money management relationship with a bank, trust company or financial adviser; or the execution or revocation of a power of attorney. More-over, a felony criminal complaint might be filed under ILCS 5/16-13 (financial exploitation of an elderly or disabled person by a person in a position of trust or confidence).
A guardianship, a court-ordered appointment of a fiduciary to represent a "disabled personĒ or wardĒ" interests and estate, may also be considered. However, the attorney should understand that a guardianship can be intrusive and painful.
Since a guardian is held to the highest standard of fair dealing, see In Re Estate of Berger, 117 Ill.Dec. 339, 166 Ill.App.3d 1045, 520 N.E. 2d 690 app. denĒd., 125 Ill.Dec. 216, 122 Ill. 2d 574, 530 N.E. 2d 244, the appointment of a relative, perhaps the most natural choice, may also compound the elderly person's problems and those of the family. For example, the spouse of a nursing home resident who seeks to benefit from the spousal impoverishment provisions of Medicaid laws would face a conflict of interest as a guardian by accepting the spouse's income or assets. Similarly, if a guardian is to be an heir of a disabled elderly person, the decisions the guardian makes about the ward's care may be scrutinized and subject to criticism, since any expenditures the guardian forgoes may increase his or her eventual inheritance. For all these reasons, a guardianship is usually a remedy of last resort.
As the number of elder abuse victims increases every year, the lawyer should remain vigilant in recognizing the warning signs of abuse among his or her clients and carefully consider the steps most likely to protect the interests of these most vulnerable clients.
Marc J. Lane ([email protected]) is a Chicago lawyer and financial planner and an adjunct professor of law at Northwestern University School of Law.