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.
Families are frustrated by lack of response when reporting abuse
Storyblocks
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 appears to want control over his father’s very valuable home. But Jackson is happy where he is and has no intention of moving anywhere. Terrance was pushing it with insistent phone calls to his father. 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 power 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. He took information and closed his file.
The incident was repeated about a month later, with Terrance making a second attempt to force his father to sign over extensive power to him. This time, he also 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? No. Did they contact Terrance? 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?
Civil cases are distinct from criminal cases and some civil attorneys, skilled in this area, 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, and to stop any calls or contact from Terrance. They all agreed 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. When the elder gives in, he spends his last days grieving and sad at the betrayal of a son or daughter, living in a place where he doesn’t want to be, and missing his friends to the end. A civil legal case may be the only way to stop that.
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.