Vol. 83, No. 11, November 2010
by Betsy J. Abramson, Marsha M. Mansfield & Jane A. Raymond
THE FIRST 30 MONTHS:
Maureen1 (not her real name), an elderly woman living alone, hired Philip to work on her house. Feeling sorry for him because he was living in his van and it was wintertime, she invited him to sleep on her couch. Once moved in, Philip began to financially exploit Maureen, obtaining more than $100,000 for cell phones, vehicles, and clothing and as payment for his work (which he never completed). As Maureen later explained to a judge, she believed that if she helped Philip get on his feet, he would move out. Instead, he quit working and demanded that she support him and, when he got angry, broke property, hit Maureen, and verbally abused her. Philip trashed the house so badly that Maureen could not have friends over. She was too embarrassed to tell her family what was going on.
After six years of abuse, Maureen at last confided in her nephew, who helped her file a petition for a restraining order. Maureen had difficulty saying “no” to Philip and was so fearful of retaliation that she hid at a friend‘s house until the final injunction hearing. With her nephew’s help, Maureen was able to successfully rid herself of Philip.
In 2006, the Wisconsin Legislature made significant changes in Wisconsin law that addressed abuse against elderly people and younger vulnerable adults. This article briefly traces the development of the law, specifically focusing on the creation of an individual-at-risk restraining order statute and analyzing its efficacy. The authors share the results of a study of the restraining order’s effectiveness over the first 30 months of its availability. The authors conclude with recommendations to strengthen the statute’s value as a tool to protect individuals at risk in Wisconsin.
Abuse is a Multifaceted Problem
As the above case from Wisconsin demonstrates, abuse against elderly people and younger vulnerable adults is a multifaceted problem. Types of abuse perpetrated against elderly people and younger vulnerable adults include physical abuse, sexual abuse, financial exploitation, neglect, and emotional or psychological abuse. 2 Abusers may be the victim’s intimate partner or spouse, a parent, an adult child, another relative, the primary caregiver, or a “friend.” Risk factors include the presence of dementia, other cognitive or physical disabilities, isolation, a shredded safety net, and a lack of awareness that abuse is occurring.3
Elderly people and younger vulnerable adults may be reluctant to pursue legal remedies or seek help because of shame, embarrassment, or fear of retaliation. They may be isolated from potential assistance. Often, if the abuser is a family member, there is concern for family privacy or a desire not to get the abuser in trouble. Both elderly people and younger vulnerable adults may believe that adult protective services (APS) assistance or court intervention will not prevent further abuse or retaliation, or worse, that such involvement will lead to imposition of services, appointment of a guardian, or – perhaps the greatest fear – removal from home and placement in a nursing home.4
A significant change in practice has occurred in the area of APS, which began with a social services model of intervention based on a caregiver-stress theory that assumed well-meaning caregivers become abusive when overwhelmed, exhausted, depleted of resources, or lacking in the skills needed to care for a dependent adult.5 Subsequent research, however, concluded that a significant percentage of cases of abuse and neglect of elderly people and younger vulnerable adults arose from the same types of family violence and power and control dynamics as exist in domestic violence situations.6 This recognition led to involvement of law enforcement to address victim safety and hold abusers accountable. Wisconsin responded in 2002, by embarking on an APS modernization project, which ultimately resulted in a complete overhaul of Wisconsin’s guardianship, APS, and elder abuse systems in 2006.7
One of the problems policymakers and advocates identified was the inadequacy of tools for county agencies responding to reports of abuse, neglect, or exploitation.8 A specific concern was that the then-existing restraining orders for adults – that is, ones available in situations involving domestic abuse, harassment, or vulnerable adults9 – were not effective in meeting the unique needs of individuals at risk who seek protection. Five specific problems were identified with the vulnerable-adult restraining order: 1) the extremely narrow definition of vulnerable adult; 2) limitations concerning the victim/abuser relationships and living arrangements to which the law applied; 3) limitations on the abusive behaviors that could be restrained; 4) restrictions on who could petition for the restraining order; and 5) the limited remedies available, which consisted only of orders prohibiting the abuser’s interference with the investigation or provision of protective services.10
These problems were all addressed in the 2006 changes that replaced the vulnerable-adult restraining order with an individual-at-risk restraining order.11 The new law expanded the definition of subject individuals to individuals at risk by broader definitions of elder adults at risk and adults at risk.12
The legislation removed the requirement of a specific relationship between a victim and his or her abuser (for example, currently or formerly married or living together). It retained all types of abuse from existing restraining orders (for example, physical, sexual, stalking, harassment) and added financial exploitation, emotional abuse, mistreatment of animals, unreasonable confinement, treatment without consent, and neglect.13
A unique feature is that under the revisions, any person can petition for a restraining order on behalf of the individual at risk. Before the change in the law, only the vulnerable adult, a guardian, or a county APS agency could petition for an order.14 If the petitioner is someone other than the individual at risk, the petitioner must provide notice of the petition to the individual at risk.15 Additionally, the court must appoint a guardian ad litem (GAL) to investigate the situation and report to the court whether issuance of a restraining order is in the best interests of the individual at risk.16 The new law also expands the available remedies by developing a true no-contact order.17 The noninterference provisions were retained and transferred to the APS statutes.18
Analysis of 30 Months of Experience
This article’s authors recently completed a research study that was designed to collect, evaluate, and analyze the first 30 months of experience with the new individual-at-risk restraining order.19 The research consisted of a review of CCAP20 records and interviews with court staff, APS workers, domestic violence agency employees, GALs, and other individuals. Researchers also reviewed case files in 11 Wisconsin counties.21
In their review of CCAP, the researchers found 327 petitions had been filed in 54 of Wisconsin’s 72 counties, with almost one-half filed in just 10 counties.22 Almost half the petitions were filed by individuals at risk, occasionally with assistance of relatives or county employees. Nearly one-quarter (22 percent) of the petitions were filed by relatives, and 19 percent were filed by county elder abuse or APS agency staff or social workers. In the great majority (89 percent), temporary restraining orders were granted, and in more than half those cases, permanent injunctions followed. County workers had the most success obtaining injunctions.
In the 11 counties in which the researchers conducted paper file reviews, 34.5 percent of the 116 petitions were filed by individuals at risk, 19 percent by substitute decision-makers,23 25 percent by adult children or other relatives, and 12.1 percent by social workers or APS staff.
The numbers of male and female abusers were roughly equal. This finding is very different from general domestic abuse or elder abuse, which is much more likely to be perpetrated by males.24 The alleged abuser was an adult child in 25 percent of the cases, an acquaintance in 14.7 percent, a spouse, partner, boyfriend, or girlfriend in 15.6 percent, and a residential provider or a caregiver in 8.6 percent.25
In Wisconsin, the petition for an individual-at-risk restraining order contains check boxes that the petitioner marks to indicate the types of abuse alleged. In 73 percent of the cases, more than one type of abuse was alleged. In cases in which only one type of abuse was alleged, it was most often financial exploitation, followed in frequency by emotional abuse, harassment, physical abuse, neglect, confinement, sexual abuse, stalking, and harm to animals.
The success of this new restraining order can largely be attributed to inclusion of financial exploitation as an enjoined behavior and permitting someone other than the individual at risk to seek the restraining order. Financial abuse cases were widespread and included a woman using an elderly acquaintance’s apartment as the base for prostitution while stealing money and allowing into the apartment armed gang members, and a man who demanded money and threatened nursing home placement or violence if his 93-year-old grandmother did not give him cash.
Betsy J. Abramson, U.W. 1981, is an attorney at Disability Rights Wisconsin. She previously was a member of the ABA’s Commission on Law and Aging. She has been a public interest lawyer for more than 25 years, has served on three Legislative Council committees involving elder issues, has represented the elderly on issues before the Wisconsin Legislature, and is an advisor to the State Bar of Wisconsin Elder Law Section, where she is active in publications and training.
Marsha M. Mansfield, U.W. 1984, is a practicing attorney and clinical associate professor at the U.W. Law School and director of the Economic Justice Institute, which comprises the law school�s civil legal clinics. She is active in the State Bar of Wisconsin, serving on its Legal Assistance Committee and Board of Governors, and with the Dane County Bar Association. She has been on the Board of the Domestic Abuse Intervention Service, working with state and local organizations on advocacy issues for victims of domestic violence. She has spoken at State Bar CLE seminars on litigation and family law matters and trained attorneys for Legal Action�s Volunteer Lawyer�s Project.
Jane A. Raymond is the advocacy and protection systems developer with the Wisconsin Department of Health Services. She has extensive experience in developing domestic abuse, elder abuse, adult protective services, and aging network responses to adults at risk. She has spoken nationally on issues of domestic violence in later life and has written extensively on that topic. She earned an M.S. in corrections from Xavier University, Cincinnati, Ohio.
Emotional abuse allegations were generally used to strengthen petitions, rather than being the sole type of abuse alleged. Examples include allegations concerning alcoholic or substance-abusing sons who became violent and cruel and ones who threatened visitors by releasing growling dogs. Mistreatment of animals, although alleged less frequently, occurred in more than a few egregious cases, including one in which an abuser beat an elderly woman’s cats until the woman wrote him checks, and another in which an abuser beat a woman’s pets to threaten her into silence about his ongoing abusive behaviors.
Petitioners were successful in restraining abusers from obstructing a health-care provider’s access to the individual at risk or interfering with needed care. Examples included stealing an individual at risk’s medication, denying access to medication, stealing morphine patches, denying health-care workers access to a home, and withholding lithium for days and then administering large doses so that an abuser could leave the victim unattended.
Not all requested injunctions were granted. In some cases, petitioners failed to appear in court or withdrew their petitions. In others, the petition or case failed to meet statutory requirements (for example, the threat or action did not rise to the level necessary, the subject individual did not meet the definition of an individual at risk, the petitioner did not realize that testimony of the individual at risk or others was needed, the petition indicated only one, isolated incident, or the petitioner did not accomplish service). In still others, the individual at risk died before the injunction hearing, or guardianship proceedings or orders to review performance of agents under a power of attorney replaced the injunction process.
The researchers also found that some judges and court commissioners did not understand the statute or misapplied it. For example, some judges failed to understand that someone other than an individual at risk could petition and simply dismissed petitions filed by other individuals. Some judges demonstrated a paternalistic or outmoded understanding of domestic violence (for example, by ordering a cooling-off period). Some judges inappropriately considered the relevance of an individual at risk’s capacity and denied petitions solely because they found the subject competent even though lack of competency is not a statutory requirement. Other petitions were erroneously denied because the victim had a guardian but the guardian was not the petitioner, the victim had executed a power of attorney but the agent was not the petitioner, or the victim had executed a power of attorney that was not yet effective (that is, activated). In another case, the court denied the petition simply because the individual at risk did not testify, which also is not a statutory requirement.
A significant error was the court’s failure to appoint a GAL. This occurred in one-third of cases filed by a county and in one-third of cases filed by relatives or “other,” despite the statutory requirement of a GAL appointment when someone other than the individual at risk is the petitioner, or in any other instance “when justice so requires.”26
Concerns with GALs
The researchers also identified concerns related to GALs. When someone other than the individual at risk is the petitioner, the GAL’s role is to advocate for the individual at risk’s best interests, rather than arguing for the individual at risk’s preferences.27 To exercise this responsibility, the GAL must investigate the situation and report whether it is in the individual at risk’s best interests for the restraining order to be granted. The GAL must learn about dynamics of domestic violence against elderly people and people with disabilities and meet with the individual at risk as soon as possible. The GAL should then determine the individual at risk’s opinion regarding continued contact with the respondent and whether the individual at risk wants an attorney for the proceeding.28
Some interviewees described cases in which the GAL only met with the individual at risk for a few minutes before the injunction hearing or failed to investigate the risk posed to the individual at risk by the abuser. Limited involvement by the GAL may cause additional anxiety and conflict in an already stressful situation for both the petitioner and the individual at risk. A more serious problem is the court’s inability to obtain knowledge as to whether issuance of the restraining order is in an individual at risk’s best interests. Finally, a GAL’s failure to fulfill his or her duties increases the chance that procedural errors will occur.
The Value of Attorneys in Pursuing Restraining Orders
The research led the authors to reach additional conclusions about the value of attorneys pursuing the individual-at-risk restraining order as a protective tool in cases involving abuse of an individual at risk. For example, a GAL in a mental commitment (Wis. Stat. ch. 51), guardianship (Wis. Stat. ch. 54), or protective services (Wis. Stat. ch. 55) petition might find it prudent to petition for such a restraining order. This is clearly permitted under the Wisconsin Rules of Professional Conduct.29 In some situations, a restraining order might be necessary. Even if an order is not necessary, a GAL might be able to use a restraining order to better investigate and to execute his or her duties. In other situations, issuance of a restraining order could avoid the need for a guardianship or protective services entirely.30
Case examples also established that, as with any restraining order, attorneys should advise the individual at risk (and the petitioner, if not the same individual) to let others know of the order’s existence and terms. This includes stressing the importance of providing copies of the court order to care providers, housing managers, financial institutions, and others. In addition, individuals who receive a copy of an injunction must be told explicitly how and when to seek its enforcement.
The researchers made several recommendations. More training is needed for judges, GALs, elder abuse and adult-at-risk workers, domestic violence agency employees, elder law attorneys, and law enforcement officers. Training should focus on appropriate uses of the restraining order, the dynamics of abuse against individuals at risk, elements of the law, and the procedural steps for securing an order. The researchers also recommended development of resource materials such as frequently asked questions31 and a tool for judges outlining procedural steps and a checklist for issuing the order.
Recommended statutory changes include listing the surrender of firearms as a potential, but not automatic, consequence of an order’s issuance. The researchers also recommend assigning responsibility for GAL fees to the county; the statute is currently silent on this issue.
In the 30 months since its enactment, Wisconsin’s individual-at-risk restraining order has proven to be a valuable tool in precisely the situations its crafters had envisioned. Clearly, inclusion of two additional behaviors for which a restraining order can be sought – financial exploitation and emotional abuse – is particularly significant in situations involving individuals at risk. In addition, the unusual feature of permitting someone other than the individual at risk, a guardian, or an APS agency to file the restraining order has proven crucial in many cases. Study results confirm that a specialized legal mechanism that addresses the unique forms of domestic violence perpetrated against individuals at risk plays a vital role in protecting these individuals from abuse, neglect, and exploitation. The statutory, training, and best-practices recommendations outlined above will assist in further improving this law and strengthening Wisconsin’s safety net for all adults at risk.