Financial abuse of elders is a problem that will not be solved if we simply rely on lawyers and lawsuits. Achieving justice for elder victims of financial abuse requires a community effort that prevents abuse, restores control to the elder when it occurs, dispenses with misconceptions and paternalism, and conforms the process of justice to the characteristics of the elder.
Almost 20 years ago, the Wisconsin Lawyer featured an article by Michele Hughes on remedying abuse by financial agents.1 While in the intervening years, some things have changed,2 the legal theories in that article have withstood the test of time and are currently used in financial abuse cases.
It Takes a Village
When financial abuse has occurred, a strong foundation of community support will provide important resources. Building this foundation requires that local aging services agencies, health care providers, financial entities, law enforcement agencies, legal professionals, and other stakeholders form a network that is trained to understand the dynamics of abuse and the various ways to respond. Any of these entities could be the first touch point for an elder to reach out or a significant step in the process.
Failure to recognize the signs and effects of abuse, or worse an over-or-under reaction due to lack of understanding or inappropriate training, could mean that justice comes to a screeching halt. Numerous resources exist to help communities build this kind of network.3 But support after the fact is not adequate. The community supports need to be built in a way that reduces factors that create the framework for abuse to occur or go unnoticed.
Initial Steps and Considerations for Lawyers
In many cases, the elder is aware that the abuse is occurring or has occurred. A victim of abuse may feel all kinds of emotion, including self-blame (“how could I have been so stupid to fall for that scam?”) (“I knew I couldn’t trust him, why did I give him my credit card?”), fear (“my life savings is gone, how will I afford to live?”) (“if I take action against my daughter, I will never see my grandchildren again”), and anger. In 2011, Mickey Rooney’s compelling testimony4 before the Senate Special Committee on Aging described the feelings and emotions generated by abuse: scared, disappointed, angry, overwhelmed, and powerless. Recognize that the elder may need both professional and social supports to reduce isolation and facilitate the path through the justice system.
com carol wesselslawoffice Carol J. Wessels, U.W. 1988, is a partner in Wessels & Liebau LLC, Mequon, focusing on elder law, special needs planning, guardianship, guardian ad litem, estate planning, and estate administration. She is a member of the State Bar of Wisconsin Elder Law & Special Needs Section board, the Real Property, Probate, and Trust Law Section, and the Solo Small Firm & General Practice Section.
Returning control to the elder means doing something that is often a challenge for lawyers: keeping your opinion out of it, unless asked. Listen carefully to the elder and provide information and options while leaving opinions aside. Respect the elder’s decisions on the scope and timing of your involvement and investigation, while you determine the methods to be used in pursuing the client’s goals. The option to do nothing may be an option the elder chooses. At the same time, be aware of any pressure potentially being exerted on the elder by others, such as the abuser, other family members, and even other professionals.
The time I received a voicemail message in the middle of the night from a client, telling me he wanted me to stop representing him, I checked in with him the next day to confirm the decision. He told me that his son, who was the abuser, had pressured him to make the call while visiting and that he did not want to end the representation. We were able to obtain the visitation log from the facility to confirm the son had been present when the call was placed. The representation continued to a successful end.
Initial stages of investigation should involve the following:
Gather information about the victim, the abuser, and other involved people;
Gather documentation – which may in some cases initially best be done “under the radar” so that an abuser is not aware that the investigation is taking place;
Evaluate whether legal measures will be necessary to remedy the abuse;
Evaluate whether legal measures will be successful; and
Consider the defenses to and collateral consequences of litigation or other action.
Some cases require quick action to stop abuse in progress. Identity theft can be reported at the Federal Trade Commission’s www.identitytheft.gov, and the individual will receive guidance and tools tailored to the particular kind of identity theft involved. This website also has contact information for the three credit bureaus (Experian, TransUnion, and Equifax), to obtain copies of the credit reports and place a freeze. Credit cards that have been targeted should be closed, as should bank accounts that are affected by fraud. If real estate is involved, commencing immediate action may be appropriate to file a lis pendens under Wis. Stat. section 840.10. A vulnerable adult restraining order can be filed under Wis. Stat. section 813.123 and a temporary order requested to keep the abuser away or restrict the abuser’s actions.
In situations in which the abuser is an agent under a power of attorney, a caregiver, or another individual who provides significant support to the elder, it is especially important to carefully assess the effect of any planned action before taking it, and to make sure that support exists so that the elder does not suffer collateral damage by the “remedies” taking place.
If a trusted individual is listed as alternate agent on the power of attorney, then it may be possible to simply revoke the abusing agent’s authority. If the abuser is the sole agent on the financial power of attorney, it may make sense to operate somewhat secretly and even allow the status quo to remain while securing a new agent and drafting a new power of attorney for the elder or setting the elder up with services to manage by himself or herself.
If the abuser is a primary caregiver, the lawyer should be prepared for the possibility that the elder will need to secure care. In this case, it is vital to keep in mind that a principal fear of elder victims of abuse is losing their independence or being forced into assisted living or other substitute care.
The threat to independence is a primary reason why, in cases involving a competent elder, great care should be given in the decision whether to involve an adult-at-risk agency.5 The adult-at-risk agency has authority to initiate a protective placement or services or bring a petition for guardianship. In this author’s experience, this kind of action might occur even when the individual is competent, because the agency may view the situation differently. Once the referral is made, the elder loses some control and the situation could spiral, making matters worse for the elder. That being said, in the right situation, the services of the adult-at-risk agency provide valuable support.
Returning control to the elder means doing something that is often a challenge for lawyers: keeping your opinion out of it, unless asked.
The process of checking with the elder and respecting boundaries must continue throughout the representation. One example of a common scenario involved a homebound woman who suspected her son had been misusing her funds. She allowed me to contact the bank to obtain copies of her bank statements. These showed that her son had used the debit card she gave him to buy her groceries to withdraw funds, totaling thousands of dollars, at various racetracks from Wisconsin to Florida. He had made sure she did not receive the bank statements by removing them from the mail and telling her he took care of them. The look on her face as we reviewed the statements together, confirming her suspicions, was heartbreaking. Instead of pursuing legal action, she chose to cancel the debit card and remove him from further access to her accounts and to send him a strongly worded letter. Family ties can be strong. At the same time, even those limited steps helped my client regain control of her situation.
Abuse creates other issues that may need to be addressed. An elder whose resources have been depleted may find it necessary to obtain Medicaid benefits for health care. An elder may be facing eviction or foreclosure. If the abuser misused credit cards or otherwise secured credit on the elder’s record, the elder may be in a position of having to defend actions regarding the credit. A lawyer should be prepared to assist with these or should make a referral to Legal Action of Wisconsin’s Elder Rights Project, (844) 614-5468. This is a free civil legal service for victims of elder abuse.
In some cases, the older victim might not be competent to understand what has happened. Those cases present an initial need to ensure that a guardian or other fiduciary is in place. At this point, the lawyer needs to carefully consider the attorney-client relationship to determine whether the lawyer is representing the individual, the guardian (or guardianship petitioner), or the agent. If the elder was the lawyer’s client, that lawyer should not represent a petitioner initiating a guardianship. SCR 20:1.14, which allows the lawyer to seek appointment of a guardian for a client with diminished capacity under certain circumstances, cannot be extended to mean that the lawyer should represent that petitioner against the lawyer’s client in a conflict-of-interest situation.6
Resources Mentioned in Article
Elder Rights Project: Free civil legal service for victims of elder abuse, (844) 614-5468.
Federal Trade Commission: Report identity theft, www.identitytheft.gov.
National Clearinghouse for Abuse in Later Life: Resources to help communities build networks to address elder abuse, NCALL.us.
Department of Justice Elder Justice Initiative: Resources to help communities build networks to address elder abuse, justice.gov/elderjustice.
Center for Elders and Courts: Recommendations for procedures courts should follow in handling elder abuse cases, www.eldersandcourts.org.
Be Prepared for What’s Coming
There are some practical realities to any kind of representation involving financial abuse. First, there is the truth of what likely cannot be accomplished for the elder through litigation: repairing the relationship between family members, turning an abusive family member into a better individual, restoring the elder’s health, or bringing back money that has traveled through the hands of a judgment-proof individual. Yet these affect the elder deeply.
Another practical reality involves choosing the right legal team for the issue. In cases involving certain scams and fraud, it may be more effective for the elder to participate in an enforcement action taken by the appropriate governmental entity or law enforcement agency, instead of pursuing an individual action.
Challenges to the elder’s capacity are common on both sides of a family dispute involving elders. Capacity defenses have the effect of compounding the abusive behavior by threatening the elder’s efforts to regain power and control. Warring siblings love to fight over what mom or dad did voluntarily, and what mom or dad were pressured into or lacked the capacity to do. Revoking of a power of attorney document or drafting new estate planning documents, when the fiduciary is the abuser, can be countered by the abuser filing a guardianship petition against the elder. As a proactive matter, particularly in cases involving family disputes, I recommend asking the elder to allow the lawyer to obtain medical records, and if appropriate to voluntarily undergo cognitive testing. It is important to understand this is not only a legal concern but also a way of preparing the elder so as to mitigate any additional feeling of powerlessness and stress it may create.
It is vital to keep in mind that a principal fear of elder victims of abuse is losing their independence or being forced into assisted living or other substitute care.
As a practical reality, while many victims of financial abuse have no capacity concerns whatsoever and should not be treated as though they do, in other cases, your client’s capacity likely is declining due to health issues, which can be compounded by abuse. In these cases, preserving evidence and testimony may be crucial. These are cases in which an immediate evaluation may be necessary to preserve evidence of your client’s functional capacity at a point closer in time to the abuse. Also, your client’s testimony may need to be preserved.7
Requesting accommodation from the court is warranted in some cases. In an ideal world, particularly given the increasing number of older individuals, all courts would be elder friendly.8 Yet that is not the situation now. You may need to specifically request that the court accommodate a time schedule that is conducive to your client’s health conditions, that the calendar be expedited, and even that the judge recognize the speed at which a routine hearing takes place may be overwhelming to the elder, so the judge needs to slow it down. You, the lawyer, would do well to remember that, too; you might need to present scathing cross-examination or razor-sharp legal arguments in a more deliberate manner so that your client can follow along.
Another sad reality is that a client’s decline ultimately might lead to his or her death during the litigation. You should plan for this and determine what steps you will need to take before (in contemplation of the possibility) and after. In some cases the client’s estate may substitute as the plaintiff, but you will want to have made sure that the abuser is not the personal representative.
It’s Not Just About the Money
Even a fully successful judgment will not remedy the problem of elder abuse. It is vital for our society to build the necessary structure to achieve true justice for elders, because elder abuse is a community problem. At its core, abuse is about power and control. The abuser takes power and control from the elder. When the abuser is a family member,9 the most important emotional ties in an elder’s life are affected. The process of rebuilding the elder’s sense of stability and control may extend well beyond the entry of judgment. After a complex effort on behalf of a married couple to secure the return of their residence, which had been sold without their permission, I saw this in action. Upon hearing that the house was again theirs, the wife stated firmly: “Great! Now that we have it back, I have no intention of moving in again until we get some remodeling done!” That was her way of reasserting her control, and I love her for it.
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com carol wesselslawoffice Carol J. Wessels, Wessels & Liebau LLC, Mequon.
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1 Michele Hughes, “Remedying Abuse by Financial Agents” (Wisconsin Lawyer, Sept. 2000).
2 2009 Wis. Act 319 created Wis. Stat. chapter 244, a new set of rules governing durable powers of attorney for finances. The chapter contains provisions for judicial review and remedies for agents who abuse their status as fiduciaries. The statute of limitation for bringing claims for breach of fiduciary duty is three years. Wis. Stat. § 893.57.
3 A few examples of the excellent resources available are the National Clearinghouse for Abuse in Later Life, NCALL.us; the Department of Justice Elder Justice Initiative, justice.gov/elderjustice; and the Center for Elders and Courts, www.eldersandcourts.org/.
4 The testimony of Mickey Rooney before the Senate Special Committee.
5 Adult-at-risk agencies serve each county in Wisconsin and are empowered to investigate elder abuse allegations and take responsive steps. An individual has the right to refuse an elder abuse investigation. Wis. Stat. § 46.90(5m)(c).
6 See ABA Formal Ethics Opinion 96-404, and the May 15, 2019, edition of InsideTrack.
7 See Wis. Stat. § 804.02.
8 Wisconsin’s population is aging rapidly. It is predicted that between 2010 and 2040, the number of individuals age 65 or older will almost double. The Center for Elders and the Courts has recommendations for procedures that courts should follow in handling elder abuse cases.
9 The most common perpetrators of financial abuse are adult children of the targets of the abuse.