RISK FACTORS & LEGAL PRINCIPLES IN ABUSE CASES. Overview A COMPARATIVE PERSPECTIVE. Prof. Katherine C. Pearson, Visiting Fulbright Scholar

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1 Queens University Belfast COGWORKS, 25 February 2010 Cognitive Health & Wellbeing Across the Life Span RISK FACTORS & LEGAL PRINCIPLES IN ABUSE CASES A COMPARATIVE PERSPECTIVE 2010 K. C Pearson. All rights reserved on the slides in this set. Please contact kcp4@psu.edu for permission to reproduce beyond COGWORKS Conference Prof. Katherine C. Pearson, Visiting Fulbright Scholar Overview Profile from reported American case and comparison to clinical observations Ten years operation of Elder/Consumer Protection Clinic at Penn State, representing clients age 60+ Team work with local Adult Protection & Social Services agencies & with Prosecutors Applicable civil and criminal laws Is financial abuse just an American problem? Is there an identifiable pattern in Northern Ireland? What can/should be done? Need for clear definitions of key concepts Reduce likelihood of abuse Identify abuse quickly when it occurs Eliminate abuse (?)

2 Bertha Trout History Lived on own until age 94 Mid-1997: Great-niece Eileen promised care if Bertha moved in with her family Power of Attorney Joint Bank Accounts Late 2000: Admitted to Assisted Living facility... Bertha at age 100 In two and a half years: $850,000+ (USD) gone. Used to purchase cars, jewels, furs... Crimes Committed under State Law Theft Receiving Stolen Property Conspiracy to Defraud In sentencing, convictions were enhanced because: Theft of value in excess of $2,000 Age of victim was 60+ Key issue on Appeal: Can Eileen, as jointly named party on Bertha s bank account, be guilty of theft of funds from that account? Answer by Court of Appeals: Yes (Uniform Multiple Party Account Act, distinguishes right of control over account from ownership of funds in account, especially prior to fund-depositor s death.) Sentences: Eileen and Husband each sentenced to incarceration, not less than 16 months nor more than 5 years.

3 Is Bertha s case unique within the USA? Brooke Astor, New York philanthropist September 2009: Son (age 85) and Attorney convicted of fraud by misusing mother s Power of Attorney and alteration of her wills (5- month trial) Evelyn Roth, Oregon September 2009: 35 felony-charges filed against cousin & niece, alleging misuse of Power of Attorney to dispose of assets U.S. National Center on Elder Abuse: statistics based on state agency investigation reports 1996 NCEA: Financial Abuse = 12% of all reports of adult abuse (from = percentage of financial abuse reports declined) 2003 NCEA: Financial Abuse = 20% of all reports 2006 ABA/NCEA White Paper concludes: collection of national data on all types of elder abuse is still insufficient and piecemeal 2008 U.S. National Opinion Research Center Report on Prevalence Estimates for mistreatment based on survey of 3,005 adults, ages 57 to 85 (Journal of Gerontology, Vol. 63B, No. 4 at S248-S254) Conservative Estimate : Verbal mistreatment = 9%; financial mistreatment = 3.5%; physical abuse = 0.2% Emerging U.S. Legal Issues Should criminal enforcement resources be used to prosecute? Should Powers of Attorney have statutory limitations on scope of authority that can be granted? (What about bank cards & joint accounts?) Should family homes be distinguished from other assets when defining financial abuse? Capacity of elder or disabled person should society permit voluntary impoverishment by one who (perhaps foolishly) hopes for sufficient care? Related question for lawyers: Who is the client? Elder/Principal or Child/Agent? Evolving definition of fiduciary duty in civil and criminal laws how well understood?

4 My Research into U.S. Financial Abuse Cases: Risk Factors Intergenerational Ambivalence Unsurprising Risk Factors? Mild to acute desperation on part of elder or disabled leads to poor choices of agents - Anything is better than a Nursing Home! Little to no planning prior to onset of emergency Limited choice of available agents Isolation of elder or disabled by agent or carer Agents frequently have no prior experience in personal care and/or financial management Surprising Risk Factors? No independent counsel for elder when entering into arrangement Agents frequently start with good intentions Elders frequently have undefined (unrealistic?) expectations Abusive Agents frequently have pre-existing: Financial problems Significant personal health problems Criminal histories or partners with criminal histories Financial Abuse within Ireland & UK? National Statistics from Ireland: Ireland HSE 2008: Financial abuse = 19% of all third-party abuse reports U.K. Statistics and Recent Research Initiatives: Example: 2007 AEA/Kings College Probability Report, surveying 2,100 people age 66+. Conclusions included: NI had lowest abuse predictive incidence of 4 countries in U.K.; however, financial abuse more likely than physical abuse, family member abuser less likely to be reported, and when reported, 2/3 of reports do not result in enforcement action Example: Brunel University Study (London) on Detection/Prevention of Financial Abuse of Older Adults: Phase 1 of Study: Interviews of Professionals (health/social care/banking & financial services) to identify cues & patterns (63 interviews to date) Trend? Clarifying, Redefining or Expanding Definition of Financial Abuse & Breach of Trust Example: Robert Maxwell, who used Daily Mirror employees pension funds to save his own investments from collapsing

5 Financial Abuse in Northern Ireland? Anecdotal Reports Power in Personal stories: both as educational tools for prevention and to encourage reporting of suspected abuse Statistical Evidence With devolution, should financial abuse be a priority for gathering of base-line data in Northern Ireland? Survey tools for prevalence predictions Regionally consistent reporting criteria for all forms of abuse Structure for Response begun with NI Regional Adult Protection Forum in 2002: Northern Ireland Adult Safeguarding Partnership (NIASP) & Local Adult Safeguarding Partnerships (LASPs)& HSC Trusts Northern Ireland: Abuse includes: Definition from 2006 DHSSPS Report: Safeguarding Vulnerable Adults Legal Question: Do civil & criminal enforcement laws track or align with Department s definition? The physical, psychological, emotional, financial or sexual maltreatment, or neglect of a vulnerable adult by another person. The abuse may be a single act or repeated over a period of time. It may take one form or a multiple of forms. The lack of appropriate action can also be a form of abuse. Abuse can occur in a relationship where there is an expectation of trust can be perpetrated by a person/persons, in breach of that trust, who have influence over the life of a dependant, whether they be formal or informal carers, staff or family members or others.

6 What role for law & lawyers? Identification (or assistance in adoption) of laws which facilitate timely freezing of assets in hands of suspected abusers Identification (or assistance in adoption) of laws which facilitate prompt recovery of assets and final resolution of issues Guidelines for criminal prosecutors, including use of forensic accountants as witnesses Education of civil attorneys on risk factors & techniques for reducing likelihood of abuse Develop network of civil attorneys committed to expertise in elder law & available at affordable, published rates Conclusion: Development of Key Concept Fiduciary Duty (Breach of Trust): At common law, arises upon agreement OR by operation of law, when one person (principal) relies upon another person (agent) to act in principal s best interest Exists even without Power or Attorney even without promise by agent Agent has: Duty of loyalty to act only for principal s benefit Duty to act in good faith in furthering/advancing principal s interests Duty to disclose to principal all relevant information

7 Aristotle: Education is the best provision for the journey to old age. Selected Resources S. Basu, J. Duffy & H. Davey, Digital Divide, Older People & Online Legal Advice, (CAP Report, 2009) L. Glennon & B. Dickson, Making Older People Equal: Reforming Law on Access to Services in N.I. (CAP Report, 2009) NCEA Survey Report: State Adult Protective Services Program Responses to Financial Exploitation of Vulnerable Adults (2003) at C. Peters, K. Hooker & A. Zvonkovic, Older Parents Perceptions of Ambivalence in Relationships With Their Children, Family Relations (2006) L. Stiegel & E. VanCleave Klem, Power of Attorney Abuse: What States Can Do About It (ABA Comm. Law & Aging; AARP Policy Institute 2008) at A. Wahidin (Queens) & M. Cain, Ageing, Crime & Society (Willan 2006) E. Wood, The Availability & Utility of Interdisciplinary Data on Elder Abuse: White Paper for the National Center on Elder Abuse (ABA Monograph 2006) at

8 Your Experiences & Observations My Additional information on my website: Katherine C. Pearson Professor of Law Director, Elder Law and Consumer Protection Clinic Penn State Dickinson School of Law 333 West South Street Carlisle, PA USA