Wisconsin Lawyer: Adult Protective Services: On the Front Line Against Elder Abuse:

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    June
    03
    2020

    Adult Protective Services: On the Front Line Against Elder Abuse

    Whether and how to respond to elder abuse is not always obvious. Learn more about the role of Wisconsin's APS agencies in providing expert, compassionate services when elder abuse allegedly has taken place.

    Alice K. Page

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    elderly woman

    In Wisconsin and across the nation, adult protective services agencies (hereinafter APS) play a vital role in combatting elder abuse and abuse of younger adults with disabilities. APS often is the first responder when abuse is suspected. APS receives and investigates reports of abuse, neglect, self-neglect, and financial exploitation. Frontline staff work closely with a wide variety of partners, such as law enforcement agencies, elder abuse prosecutors, long-term care facility ombudsmen, advocates for persons with disabilities, managed care organizations, financial institutions, and other state and local governmental agencies, to promote the safety, independence, and quality of life for adults who are, or are at risk of, being harmed and are unable to protect themselves.

    The term “abuse,” as used in this article, means physical,1 emotional,2 and sexual abuse,3 financial exploitation,4 neglect,5 and self-neglect,6 as those terms are defined by Wisconsin law. It also includes treatment without consent7 and unreasonable confinement or restraint.8

    Abuse can happen to anyone. It affects men and women of all ages across all races, cultures, religions, and socioeconomic groups. Abuse can have devastating and even life-threatening consequences. Most abuse occurs in the community, but it also occurs in facilities,9 many of which are regulated by the Wisconsin Department of Health Services (DHS).

    Evidence indicates that people are most vulnerable to abuse when reduced capacity to engage in self-care because of physical or cognitive impairments or both results in a corresponding need to depend on others – in many cases, the abuser – to provide basic necessities.10 At the same time, evidence is beginning to emerge that suggests that abuser characteristics, such as personality, psychological status, and financial well-being, might be stronger predictors of abuse than the functional status and dependency of the individual who is abused.11

    Wisconsin’s APS Agencies

    In Wisconsin, APS programs are implemented at the county level and by several Indian tribes. APS staff members in the DHS provide oversight of local programs, technical assistance, and consultation.12 Each Wisconsin county is required by law to identify a lead elder-adults-at-risk (EAAR) agency for adults age 60 or over13 and a lead adults-at-risk (AAR) agency for adults ages 18-5914 to take primary responsibility for receiving and responding to allegations of abuse. Almost all Wisconsin counties combine these functions in the same agency. Each county also must designate an APS agency for providing protective services and protective placements for adults regardless of age.15

    A distinctive feature of APS agencies is that they are authorized to take legal action under certain circumstances. Although EAAR, AAR, and APS agencies are established separately under law, they all protect adults from abuse and at the same time use the least restrictive interventions and preserve individual rights to the greatest extent possible. The EAAR, AAR, and APS agencies often are collectively referred to as the county APS unit.

    Initial Obligations for At-Risk Individuals

    An elder adult at risk is “any person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.”16 An adult at risk is “any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.”17

    Alice PageAlice Page, Univ. of Richmond 1981, has been the Adult Protective Services and Systems Developer in the Wisconsin Department of Health Services (DHS) Office on Aging since 2010.  She has a master’s degree in public health and has practiced law in New Hampshire and Wisconsin. Her past positions include senior policy analyst at the National Bioethics Advisory Committee in Bethesda, Md., where she managed a project on ethical and policy issues in international research focusing on HIV/AIDS and other global public health issues. The author thanks Doreen Goetsch, Elder Abuse Coordinator at the DHS, and Kim Marheine, Ombudsman Services Supervisor at the Wisconsin Board on Aging and Long Term Care, for reviewing and providing feedback for this article.

    However, as previously noted, the AAR agency serves adults ages 18-59. Both elder adults at risk and adults at risk must have experienced, be currently experiencing, or be at risk of experiencing abuse, neglect, self-neglect, or financial exploitation. Beyond that criterion, an elder adult at risk is determined solely by age, whereas to be considered an adult at risk, a person must have a physical or mental condition that substantially impairs the person’s ability to care for his or her needs.

    County EAAR and AAR agencies are responsible for keeping elder adults at risk and adults at risk safe. It is their job to receive and investigate reports of abuse.18 A primary goal of APS investigations is to determine whether abuse has occurred. Every county has a publicized telephone number that people can use to report suspected abuse.19

    When APS receives a report of suspected abuse, the report may be investigated in a variety of ways. Staff members may interview the individual, family members, caregivers, or surrogate decision-makers (for example, a guardian or an agent under a power of attorney); visit the individual’s residence to see the individual and observe his or her living conditions; and review medical and financial records.20 APS assesses, often with the help of other professionals, the individual’s level of risk, decision-making capacity, and potential service needs, funding sources, and support; whether an intervention should be voluntary or involuntary; and whether emergency action is warranted.21

    In reports involving elder adults at risk, the EAAR agency must respond. In other words, the agency has no discretion and must respond to the report within 24 hours after its receipt, exclusive of weekends and holidays.22 In contrast, for reports involving adults at risk, if the AAR agency has reason to believe the individual has been abused, the agency may respond. The use of the term “may” indicates agencies have discretion in determining whether to respond. If the agency determines that it will respond, it must respond within 24 hours after the receipt of the report, exclusive of weekends and holidays.23

    APS Tools for Assisting Abused Individuals

    If there is a need for protective services, APS will work with the individual who was abused or is at risk of abuse, as well as with family members, friends, surrogate decision-makers, and other professionals, to assist the individual and reduce or eliminate the harm or risk of harm. APS may provide services or refer the individual to other agencies that can provide services. Services typically include medical or behavioral health treatment, personal care, delivered meals, housing, legal or financial assistance, or a referral to a long-term care ombudsman.

    APS also can make referrals to law enforcement agencies or district attorneys when the harm being inflicted on the individual is a crime, or to regulatory agencies, such as the DHS Office of Caregiver Quality. The Office of Caregiver Quality is housed in the Division of Quality Assurance, which regulates many of the types of facilities where abuse can occur. Finally, APS may initiate legal action, such as guardianship, protective services, or protective placement, when appropriate.

    Voluntary services always are preferred over involuntary, court-ordered services because the individual (or the agent under an activated health-care power of attorney or the guardian if the individual is deemed incompetent) makes the decision to accept services, rather than having services imposed upon him or her.24 When possible, APS will help the individual remain in his or her residence or community. Although county APS units are authorized to seek involuntary, court-ordered protective services, protective placements, or guardianships for individuals meeting certain criteria, legal action is taken only after all other less restrictive options are explored and determined not to be appropriate.

    Protective Placements, Services and Guardianships

    Counties are responsible for the reasonable program needs of individuals who are protectively placed or who receive protective services.25 The APS system provides a mechanism for organizing, planning, and delivering services for elder adults and adults at risk who have developmental disabilities,26 degenerative brain disorders,27 serious and persistent mental illness,28 or other like incapacities29\ that are permanent or likely to be permanent.30 The primary purpose of protective services and protective placements is to keep an individual who has one of these conditions safe from harm in the least restrictive environment and in the least restrictive manner possible, given the individual’s needs and the county’s resources.31

    A court can order a protective placement when the individual has a primary need for residential care and custody and is so totally incapable of providing for his or her own care or custody because of one of the conditions listed above that there is a substantial risk of serious harm to the individual or to others.32

    [E]vidence is beginning to emerge that suggests that abuser characteristics, such as personality, psychological status, and financial well-being, might be stronger predictors of abuse than the functional status and dependency of the individual who is abused.

    Court-ordered protective services are a noninstitutional alternative that, when delivered, serve the same purpose as protective placements. In such a case, the court must find that the individual will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided.33 A petition for protective services or protective placement can be filed on an emergency basis.34

    Before the filing of a petition for protective placement or protective services, if the individual does not already have a guardian, a physician or a psychologist must examine the proposed ward to determine whether the individual is capable of making reasonable decisions on his or her own behalf and provide a report regarding decision-making capacity.35 If the individual no longer possesses decision-making capacity, a petition for guardianship of the person, the estate, or both must be filed at the same time as the petition for protective placement or protective services.36 APS will recommend whether the guardianship sought should be a plenary, or full, guardianship or whether a limited guardianship is warranted for a specific purpose or purposes. The court must find that the individual is incompetent as a matter of law before it can order protective placement or protective services.37

    Any person may petition for guardianship of the individual.38 However, counties generally, but not always, serve as the petitioner in guardianship proceedings in cases involving a petition for protective services or placement.39 Whether the county pays the cost of the examining physician’s report needed for guardianship depends on the circumstances.

    One of the challenges of APS is to balance protection and safety of the individual with autonomy and “dignity of risk.” Dignity of risk is based on two premises: 1) every choice a person makes has risk and consequences, and 2) some people deliberately choose to live with more risk than others and are willing to accept the consequences of their choices. The right to make decisions should never be contingent on the quality of decisions, the process by which decisions are made, or how decisions are communicated.40

    Assessing safety is one of APS’s biggest challenges. For each individual, APS is faced with determining what it means to be safe, who should decide what being safe means, and when the cost of safety outweighs the benefits of self-determination. Individuals with decision-making capacity can exercise their right to self-determination to make decisions about their safety and living conditions. APS will encourage these individuals to voluntarily accept the care and services being offered by APS or other agencies. However, an individual with decision-making capacity can refuse assistance or services, contest legal proceedings, and continue to make poor choices, even when it puts his or her health and safety at risk.41 In addition, individuals who lack decision-making capacity but who have not been found to be incompetent by a court might continue to make “bad” decisions.

    For each individual, APS is faced with determining what it means to be safe, who should decide what being safe means, and when the cost of safety outweighs the benefits of self-determination.

    When an individual who clearly has the ability to make decisions does not want suspected abuse to be reported and efforts to obtain the individual’s voluntary cooperation are not successful, usually a report should not be made out of respect for the individual’s right to self-determination. However, suspected abuse should be reported, even against an individual’s wishes, when the situation appears to be so hazardous or so harmful and further risk is so imminent that it is appropriate to override the individual’s right to live life as he or she chooses. Suspected abuse should also be reported against an individual’s wishes whenever there is risk to others; for example, when the alleged abuser is a paid professional caregiver in a facility.

    As a general rule, reports of suspected abuse, as well as APS investigations, findings, referrals for services, and other actions, are confidential. This information cannot be disclosed to the reporter or to another individual or agency unless there is an exception in the law or a release is obtained from the individual who is the subject of suspected abuse.42

    Conclusion

    APS agencies, through their capacity to create, overcome, endure, and transform, have changed the lives of many individuals. They protect and advocate for some of Wisconsin’s most vulnerable people, but the demands on APS continue to grow as the baby boomers age.43 Caseloads, which are already daunting, are increasing while resources are stagnating. Abuse of elders and young adults with disabilities is an issue that affects everyone, and it will require a multidisciplinary effort at the state and local levels to mobilize and empower society’s collective forces to meet the next set of challenges.

    Meet Our Contributors

    What was your oddest experiences in a legal context?

    Alice PageMy oddest experience in a legal context was when, as a young attorney in New Hampshire, I was asked to serve as local counsel for a New York City admiralty and maritime law firm that had seized an enormous Greek oil tanker. The tanker was docked in Portsmouth harbor, and it was believed the cargo was being used to run the tanker, instead of being delivered to its intended destination.

    I spent two days climbing around the ship, up and down ladders, and peering into every nook and cranny, with the New York attorneys, two federal marshals, the captain and crew, and a Greek interpreter. The Greek interpreter and I were the only women on the ship, and the federal marshals never left our side.

    Alice Page, Bureau of Aging and Disability Resources, Department of Health Services, Madison

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 ‘“Physical abuse’ means the intentional or reckless infliction of bodily harm.” Wis. Stat. § 46.90(1)(fg). ‘“Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.” Wis. Stat. 46.90 § (1)(aj).

    2 ‘“Emotional abuse’ means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed.” Wis. Stat. § 46.90(1)(cm).

    3 ‘“Sexual abuse’ means a violation of s. 940.225 (1), (2), (3), or (3m).” Wis. Stat. § 46.90(1)(gd).

    4 ‘“Financial exploitation’ means any of the following: [o]btaining an individual’s money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent[; t]heft, as prohibited in s. 943.20[; t]he substantial failure or neglect of a fiscal agent to fulfill his or her responsibilities[; u]nauthorized use of an individual’s personal identifying information or documents, as prohibited in s. 943.201[; u]nauthorized use of an entity’s identifying information or documents, as prohibited in s. 943.203[; f]orgery, as prohibited in s. 943.38[; or f]inancial transaction card crimes, as prohibited in s. 943.41.” Wis. Stat. § 46.90(1)(ed).

    5 ‘“Neglect’ means the failure of a caregiver, as evidenced by an act, omission, or course of conduct, to endeavor to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk of danger to the individual’s physical or mental health.” Wis. Stat. § 46.90(1)(f).

    6 ‘“Self-neglect’ means a significant danger to an individual’s physical or mental health because the individual is responsible for his or her own care but fails to obtain adequate care, including food, shelter, clothing, or medical or dental care.” Wis. Stat. § 46.90(1)(g).

    7 ‘“Treatment with consent’ means the administration of medication to an individual who has not provided informed consent, or the performance of psychosurgery, electroconvulsive therapy, or experimental research on an individual who has not provided informed consent, with the knowledge that no lawful authority exists for the administration or performance.” Wis. Stat. § 46.90(1)(h).

    8 ‘“Unreasonable confinement or restraint’ includes the intentional and unreasonable confinement of an individual in a locked room, involuntary separation of an individual from his or her living area, use on an individual of physical restraining devices, or the provision of unnecessary or excessive medication to an individual, but does not include the use of these methods or devices in entities regulated by the department if the methods or devices are employed in conformance with state and federal standards governing confinement and restraint.” Wis. Stat. § 46.90(1)(i).

    9 Wisconsin’s Annual Elder Abuse and Neglect Report: 2018, P-00124-18; Wisconsin’s Annual Report on Abuse, Neglect, and Financial Exploitation of Adults at Risk: 2018, P-00123-18.

    10 X.Q. Dong et al., Elder Abuse and Dementia: A Review of the Research and Health Policy, Health Affairs 2014, 33 (4): 642-49; R.B. Hughes et al., The Relation of Abuse to Physical and Psychological Health of Adults with Developmental Disabilities, Disability & Health J. 12(2):227-234 (April 2019) (abstract available at www.ncbi.nlm.nih.gov/pubmed/30655190).

    11 M. DeLiema et al., Using Latent Class Analysis to Identify Profiles of Elder Abuse Perpetrators, J. Gerontol. B. Psychol. Sci. Soc. Sci., 2018, 73(5): e49-e58.

    12 Wis. Stat. §§ 46.90(8), 55.02(1), 55.043(8).

    13 Wis. Stat. § 46.90(2). ‘“Elder-adults-at-risk agency’ means the agency designated by the county board of supervisors under sub. (2) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under sub. (4).” Wis. Stat. § 46.90(1)(bt).

    14 Wis. Stat. § 55.043(1d). ‘“Adults-at-risk agency’ means the agency designated by the county board of supervisors under s. 55.043 (1d) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under s. 55.043.” Wis. Stat. § 55.01(1f).

    15 Wis. Stat. § 55.02(2)(a).

    16 Wis. Stat. § 46.90(1)(br).

    17 Wis. Stat. § 55.01(1e).

    18 Wis. Stat. §§ 46.90(3), (5), 55.043(1g), (1r).

    19 Wis. Stat. §§ 46.90(3)(c), 55.043(1g)(c).

    20 Wis. Stat. §§ 46.90(5)(b), 55.043(1r)(b).

    21 Wis. Stat. §§ 46.90(5m), 55.043(4).

    22 Wis. Stat. § 46.90(5)(a)1.

    23 Wis. Stat. § 55.043(1r)(a)1g.

    24 Wis. Stat. § 55.05(3).

    25 Wis. Stat. § 55.045.

    26 Wis. Stat. § 55.01 (2).

    27 Wis. Stat. § 55.01(1v).

    28 Wis. Stat. § 55.01(6v).

    29 Wis. Stat. § 55.01(5).

    30 Wis. Stat. § 55.08(1)(d).

    31 Wis. Stat. §§ 55.001, 55.12.

    32 Wis. Stat. § 55.08(1)(a)-(d).

    33 Wis. Stat. § 55.08(2)(a)-(b).

    34 Wis. Stat. §§ 55.13, 55.135.

    35 Wis. Stat. § 54.36(1).

    36 Wis. Stat. § 55.08(1)(b), (2)(a).

    37 Wis. Stat. § 55.075(3).

    38 Wis. Stat. § 54.34(1).

    39 Wis. Stat. § 55.075(1).

    40 Charles McLaughlin, “Doing Good”: A Worker’s Perspective, Public Welfare, Spr. 1988, at 29-32.

    41 See generally www.napsa-now.org/wp-content/uploads/2015/06/TA-Brief-Mental-Capacity-FINAL.pdf.

    42 Wis. Stat. §§ 46.90(6), 55.043(6).

    43 Statewide Elder Adults at Risk and Adults at Risk Incident Reports, 2013-2018, P-02449.




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