ParentCare » Vol. 2

Hidden in plain view: The changing face of elder abuse

By Christina P. O’Neill

Elder abuse, like child abuse, tears at the very fabric of a just and caring society. Here in Central MA, as elsewhere, elder abuse is on the rise. Local elder care advocates are joining forces to improve the situation by creating the Worcester County Elder Abuse Roundtable to address what can be done to protect elders at risk. And they’re fighting an uphill battle.

As the definition of elder abuse widens, staff to address the problem is shrinking. Protective Service at the state’s Office of Elder Affairs is down from seven regional directors two decades ago to three regional managers now. Meanwhile, elder-abuse complaints in Massachusetts clocked in at 14,197 in the most recent fiscal year. In Worcester in fiscal year 2007, 976 cases of elder abuse were reported; 427 of them were self-neglect.


Self-neglect and the slippery slope

In 2005, self-neglect was the sixth condition added to the state’s list. Of the reportable conditions, it accounts for about half of the total case load. Factors leading to self-neglect are:

~ Undiagnosed and/or untreated mental health problems, sometimes combined with physical impairment
~ Social isolation
~ Malnutrition
~ Substance abuse
~ Cognitive impairment
~ Limited financial resources
~ Early-stage dementia illnesses such as low-grade infections that may result in dementia-like symptoms
~ Depression
~ Substance abuse
~ Poverty
~ Isolation

The National Council on Elder Abuse (www.ncea.aoa.gov) advises that the definition of self-neglect excludes a situation in which a mentally competent older person who understands the consequences of his/her decisions makes a conscious and voluntary decision to engage in acts that threaten his/her health or safety as a matter of personal choice.

Not against their will

A January 13, 2008 story in The Boston Globe gave a chilling account of elders being committed to long-term care facilities by their guardians. Stephen Slaten, PhD, Executive Director of Worcester-based Jewish Family Service, says that it is not fair to generalize the guardianship process based on the case reported in The Globe, which involved one guardian and one hospital.

Jewish Family Service
(www.jfsworcester.org), a non-denominational social service agency established in 1921, has a guardianship program for elders. It took its first legal guardianship case in 1982 and was the first social service agency in Massachusetts to do so. It’s appointed by the Probate and Family Court of Massachusetts for vulnerable elders no longer able to make their own decisions.
Medical interventions and placement in facilities require “informed consent” of the patient. If the patient is unable to understand the decisions and consequences required of him or her, the “informed” part is violated, Slaten says. The remedy is a health care proxy or guardian who makes the decision based if possible on “substituted judgment,” or what the elder would have decided if he or she were competent, meaning one follows previous stated wishes or religious practices, and so forth.

No competent elder should be placed in a nursing home “against their will,” he states. An incompetent elder may protest having to leave his or her familiar surroundings. But if an incompetent elder later becomes competent, after, for example, responding successfully to medical treatment for a condition that had caused cognitive impairment, a court hearing is certainly warranted, Slaten says.

A Catch-22

Delivery of health care to institutionalized elders can present a Catch-22. “Elders on [proper medication] don’t look as if they should be in a nursing home,” remarked Janice Conrad, JFS’ Protective Service Coordinator, at a Round Table conference on elder abuse last November. She cites two elders under guardianship who test as competent in a nursing home, because they are on a consistent schedule and are taking their medications properly. “These wards have mental health issues and with ongoing treatments and medications, they are doing well.” But if they lived alone they wouldn’t take their medication or see their doctor regularly and would be in crisis again, she warns.

In some instances, a medical decision is specifically made by the judge in a hearing, usually after a guardian ad litem (a court appointed advocate) has been requested to investigate the matter and to make a recommendation to the judge. Elders can be represented by their own attorney ~ including one appointed by the court ~ in a legal matter.

Financial abuse

An elder who is legally competent (irrespective of medical opinions) retains the right to make his or her own decisions. If an attorney or physician questions whether an elder is competent, Slaten says there should be an evaluation and the court petitioned to make a decision on the feasibility of a financial transaction or medical decision. If no one questions competency at the time, it is hard to get something overturned later on the basis that the elder was not competent ~ that he or she did not understand the decision or the consequences. Someone who no longer has the capacity to understand decisions is an easy mark for exploitation, unless there is a guardian (or power of attorney, trust, health care proxy, etc) looking after the elder’s affairs.

“We have seen elders sell their homes at below market rates or even sign their homes over to someone,” says Chris MacWade, Executive Director of Family Services of Central Massachusetts. “I don’t have any numbers on this, but we must assume it is increasing.”

By the time a guardian is appointed, elders may already have signed their houses over to trusted family members or “friends” and found that they made the wrong judgment, says JFS’ Conrad. “In most cases these transfers were done prior to them being deemed incompetent, and it is difficult to prosecute. This is an ongoing problem and we would like to see some changes in prosecuting these transactions. Half the time the elder doesn’t know what they are signing.”

In Maine, a state court can void a transaction conducted by a person age 60 and over who is dependent on others, if the court deems it improper. These transactions may be real estate, money or personal property, for less than full consideration, or a guaranty to an individual with whom the dependent person has a confidential or fiduciary relationship. If all those elements are present, it’s presumed that the transfer or execution was the result of undue influence, unless the elderly dependent person was represented by an independent attorney.

Currently, Massachusetts has no such protective law in place. So vigilance may start at the bank. “Bankers are trained to recognize unusual account activity,” MacWade says. When unusual activity occurs in an account ~ an increase in withdrawals or checks written to cash or to the same individual, “…the people in the bank will check into it quietly at first, then may file a report. Remember, reports are confidential so the elder doesn’t know who reported, so the bank might not lose a customer.”

The woman next door

In an October 16 op-ed in the The Worcester Telegram last year, JFS’ Stephen Slaten stated that abuse is a growing problem for too many seniors. Victims might include a next-door neighbor, a church member, or the older woman one meets in the grocery store, he stated. Elder abuse is also often hidden because many abused elders may think that they themselves are the problem. Slaten urges intervention, first by community members and police, in cases where the elder is in immediate danger. In other cases, a confidential report can be made via the Massachusetts’ Elder Abuse Hotline, (800) 922-2275.

Elders unready to make a change can still protect themselves by developing a safety plan with a trusted friend or professional, he stated. Local “aging access point agencies” can help locate specialized services to protect older victims of abuse. People can learn more about the issue of elder abuse by joining the Worcester County Elder Abuse Prevention Roundtable or by contacting an elder agency in the community.“No one deserves to be abused,” Slaten concluded. “There is a way out to safety, dignity and respect.”

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