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The Changing Role of the Courts in Elder Abuse Cases
Our client, an older man, deeded his house to his late wife’s caregiver in return for her promise to care for him until his death.
Within two weeks of the transaction, the caregiver threw him out of the house. On my first day as a legal services lawyer, I was assigned to find case law that would support our client's claim for the return of his house. Being naive and inexperienced, I thought “no problem, this must happen all the time in Florida with all the old people who live here, and there must be lots of case law.” But there was a problem. While this sort of thing did happen all too often in Florida (and elsewhere), there was almost no case law. After many hours (this was before the advent of computer-assisted legal research), I did find one case holding that in a situation such as our client had experienced, the caregiver would be presumed to have acted fraudulently. The caregiver did not overcome that presumption, and our client regained the title to his home.
Almost eighteen years later the body of case law on elder abuse is beginning to grow. During those intervening years, however, the incidence and
awareness of elder abuse has risen significantly (National Center on Elder Abuse, 1999).
This article will discuss the reasons why there still is not much case law, why that situation is finally changing, and what those changes might mean.
Why So Little Case Law on Elder Abuse?
As lawyers know, decisions rendered by state trial judges are often not reported. In the case discussed above, the judge simply issued an order
voiding the deed that our client had given to the caregiver and returned ownership of the house to him.
Another relevant factor is that many of the decisions rendered by the courts are not categorized as elder abuse decisions by the judicial system itself
or by the companies that publish court opinions.
There is no keyword for elder abuse in use by the companies that publish those opinions. This situation means that whatever case law on elder abuse does exist can be quite difficult to find, even with the more sophisticated capacities presented by computer-assisted legal research. Our client's case, if it had resulted in an opinion worthy of publication, would have been categorized as a deed rescission case and/or a fraud case. An individual conducting legal research would not be able to determine that the deed rescission or fraud was due to an underlying issue of elder abuse without finding and reading the judge’s opinion.
The more interesting and important reason for the dearth of case law on elder abuse is that most incidents of elder abuse are never brought to the
judicial system in the first place.
Certainly, not all incidents of elder abuse need to be or should be addressed by the courts (Stiegel, 1995). But in many cases, the courts could play a critical role in protecting the current victim or other victims from abuse, compensating the victim for damages, enabling victims to recoup financial losses they've suffered, or punishing the perpetrator. Nonetheless, there are numerous reasons why victims of elder abuse do not seek relief from abuse or compensation for damages resulting from abuse through the civil justice system or cooperate with law enforcement officers and prosecutors who could bring criminal charges against the abusers.
Reluctance, practical problems, lack of knowledge.
The current generation of older people is extremely reluctant to take legal action against or see criminal charges brought against family members for whom they feel love or responsibility, caregivers upon whom they may be dependent, and friends, neighbors, or fiduciaries in whom they placed their trust. Explanations for this reluctance to take action include not wanting to get the abuser in trouble, dependence on the abuser, fear of further abuse or retaliation, and fear that taking such action will ultimately lead to being placed in a nursing home or other institutional setting. Practical problems such as difficulty in traveling to a lawyer's office or courthouse or the lack of an available substitute caregiver to help someone who is dependent on the victim while the victim pursues legal matters can also pose obstacles to the pursuit of legal remedies. Victims may not recognize that they are experiencing abuse or understand that the judicial system can help them address their problem. (Stiegel, 1995; Office of Justice Programs, 1998.)
Difficulty of proof.
Elder abuse cases may be difficult to prove. Physical evidence may be unavailable because of delays or failures in recognizing that abuse is occurring. Witnesses may be unavailable as well. The victim’s capacity to testify may be in question, either because the capacity was lacking at the time of the abuse or because it has diminished or been lost in the intervening period. Many financial and sexual abuse cases raise the complex issue of undue influence. Qualified expert witnesses may be difficult to find.
Financial viability. Many of these cases may not be financially viable for the victim or the lawyer. A victim may not be able to pay
for a lawyer's services because the victim has never had much money or because the victim's life savings were lost as a result of the exploitation that would be the subject of the lawsuit.
Compensatory damages may be low because of the victim's life expectancy or physical, mental, or employment status. Attorney's fees or punitive damages may not be awarded because the facts of the case may not meet the prerequisites of state law (Stiegel, 1999). However, in lawsuits about the quality of care delivered in nursing homes, the trend is toward large awards for punitive damages (Higgins, 1998).
Problems collecting payment.
Even if the victim pursues a claim against the abuser and wins the case, the abuser may not have the resources to satisfy a judgment. Collection of the judgment may be more feasible if the abuse was committed in an institutional setting or by a fiduciary, either of which is more likely to have "deep pockets."
Slow pace of the legal process. The slow pace and customary delays of the legal process are particularly onerous to older persons in general and to those who have been abused in particular. Elder abuse has been shown to increase mortality rates among victims (Lachs and Pillemer, 1998). There is always a risk that the victim will die prior to trial.
Lack of sensitivity. Lack of knowledge about and sensitivity to elder abuse victims among private lawyers and prosecutors, law enforcement
officers, court personnel, and judges can also inhibit victims from bringing their cases to the judicial system. (Stiegel, 1995)
Situation is Changing
More cases involving elder abuse are beginning to make their way into the courts, as the growing number of reported cases attests.
For example a newsletter reporting on the field, Victimization of the Elderly and Disabled, has summarized thirty reported cases related to elder abuse and some unreported trial court verdicts in nursing
home abuse cases since it first began publication in May/June 1998. These cases addressed a wide array of issues: immunity from liability for people reporting abuse, civil liability for failing to report
abuse, types of actions that constitute abuse, constitutionality of statutes providing criminal penalties for abuse or allowing civil lawsuits to continue after the death of the victim, mental state required
for criminal liability, standards of proof for abuse in institutions, wrongful discharge of nursing home employees for reporting abuse, and criminal prosecutions for abuse. Another newsletter, Medicaid Fraud
Report, indicates a doubling of criminal prosecutions for abuse of nursing home residents within a one-year period. Newspaper and television coverage of court cases involving elder abuse appears to be increasing.
Why is the judicial system hearing more cases involving elder abuse?
Is it simply because there are more older people? Or more incidents of elder abuse? Is it because our society has become more litigious? While those phenomena probably explain some of the increase in court cases involving elder abuse, the remainder of this article will address the myriad other complex reasons.
New Statutory Remedies
Civil or equitable remedies such as restitution, constructive trusts, and compensatory damages may be sought from a perpetrator of elder abuse in order
to compensate the victim or “make the victim whole.”
These remedies would be obtained through lawsuits for assault and battery, breach of fiduciary duty, conversion, false imprisonment, fraud, or negligence. There are also other traditional civil actions such as petitions for a guardian or conservator, or for a divorce or legal separation that may be used to prevent further abuse, but such actions will not recover the victim's losses.
Criminal prosecutions can be brought for murder, manslaughter, sexual assault, rape, assault and battery, theft, forgery, embezzlement, fraud, and a
host of other crimes (Heisler, 1991). Even if a victim is able to overcome the reluctance to take legal action against the perpetrator, these types of legal actions raise the limitations and problems discussed
previously: the difficulty of proving the case, the cost and financial viability for both the victim and the lawyer, the slim possibility of actually collecting damages or recouping exploited money from the
perpetrator, the slow pace of the judicial system, and the lack of knowledge about elder abuse among lawyers, prosecutors, law enforcement officers, and judges.
Some state legislatures have begun recognizing the challenges faced by elder abuse victims who seek civil law and equitable remedies from the judicial
system and, as a result, have enacted new statutory remedies for victims of elder abuse.
Legislatures have also established significant new provisions in the criminal statutes. In addition, important changes in policy and practice have led to an increase in the number of elder abuse cases making their way into the judicial system.
Elder abuse statutes. Several states have enacted special elder abuse statutes. Probably the most well known of these is
California’s “Elder and Dependent Adult Civil Protection Act.”
Its intent is to “enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” The law does this by establishing a civil remedy for physical abuse, neglect, and fiduciary abuse; authorizing the award of attorney’s fees and costs and punitive damages under certain circumstances; and allowing a cause of action to survive if the victim dies. Arizona’s adult protective services statute includes a civil remedy and authorizes actual, consequential, and punitive damages; attorney’s fees and costs; and divestiture.
Illinois law authorizes treble damages for the losses incurred by an “elderly or disabled person” as a result of financial exploitation when an
exploiter is criminally charged and fails or refuses to return the victim’s property following demand by the victim or the victim’s legal representative. Attorney’s fees and court costs are also authorized.
Maine’s “Improvident Transfers of Title” statute creates a presumption that a “transfer of real estate or major transfer of personal property or money for less than full consideration by an elderly person who is dependent on others to a person with whom the elderly dependent person has a confidential or fiduciary relationship” was the result of undue influence unless the grantor was represented by an independent counsel for the transaction. The statute also authorizes a civil action for relief (Stiegel, 1995; Moskowitz, 1998). In some states, assets that were exploited from an older victim may be frozen to prevent dissipation.
Civil orders of protection. Civil orders of protection may be available to elder abuse victims, many of whom are actually older
victims of domestic violence. Increasingly, states are expanding their definition of domestic violence to include other forms of family violence, such as that committed by an adult child or grandchild against
an older person.
Consumer protection laws. Consumer protection laws may provide a cause of action against individuals or companies that financially
exploit older persons. Nursing homes have been subject to such claims for failure to provide the care that they advertised and contracted to offer.
False Claims Acts. At the federal and state level, false claims act lawsuits may be appropriate in instances where nursing homes failed
to provide the care for which they are reimbursed by the government.
The U.S. Attorney in Philadelphia has entered into two settlements in cases against nursing homes, for $100,000 and $500,000, respectively, in addition to requirements for facility monitoring and significant improvements in quality of care (Hoffman, 1996). In other jurisdictions, similar cases have been brought or are under consideration.
Expedition of cases. A few states have enacted laws or instituted court procedures that allow cases involving older people to be expedited on
the court calendar (Stiegel, 1995).
New or amended statutes have made elder abuse, or at least certain aspects of it, a crime in many states. For example, a number of states have
passed laws making elder neglect a crime. Some states have increased the penalties for elder abuse, either through the statutory imposition of tougher penalties or through sentencing enhancements for crimes
committed against older people (Stiegel, 1995).
Changes in Policy and Practice Related to Elder Abuse
A number of changes have occurred in policy and practice related to the courts and elder abuse.
For example, enhanced awareness of patient abuse issues and emphasis on prosecuting such cases has led to a dramatic increase in the number of patient abuse, neglect, and exploitation cases prosecuted by Medicaid Fraud Control Units. The fraud units are mandated by the federal government and authorized to prosecute patient abuse and mistreatment in residential health facilities that receive Medicaid funds, as well as fraud committed by Medicaid providers. The units must utilize their state’s criminal laws to prosecute complaints of patient abuse and neglect. There are units in the District of Columbia and all states except Idaho, Nebraska, and North Dakota. According to Medicaid Fraud Report produced
by the National Association of Attorneys General, in the first six months of 1997 the units reported 46 cases of patient abuse, neglect, or exploitation in which criminal charges had been filed, the defendant pled
guilty or no contest, or convictions were obtained. In the first six months of 1998 and 1999, the number of cases climbed to 92 and 95, respectively.
Similarly, the advent of multidisciplinary teams and training has led to heightened awareness among a wider variety of professionals about elder abuse
and the fact that there may be civil remedies or criminal penalties for the abuser’s actions. Multidisciplinary teams have fostered better cooperation in addressing individual cases, systemic improvements, and
legislative reforms.
Training of law enforcement officers and prosecutors about elder abuse has also increased significantly in some areas of the country (Heisler, 2000).
The increasing attention devoted to elder abuse is, at least in part, due to federal and state initiatives -- many of which have been funded by the U.S. Department of Justice -- that have enhanced the role of the criminal justice system in addressing problems such as family violence or nursing home abuse that were previously thought of as "social problems." Triad, a partnership of police, sheriffs, and aging advocates that has received Department of Justice funding, has begun to devote more attention to the problem of elder abuse.
Other changes in prosecutor policy and practice have made it more likely that elder abuse will be prosecuted. These changes include
"vertical prosecution" (whereby one attorney handles the case throughout the entire procedure) and prosecuting the perpetrator even if the victim doesn't want to press charges or cooperate with authorities
(Heisler, 2000).
Education of civil lawyers about elder abuse has also increased.
The growth of elder law as a practice specialty has fueled much of the lawyer education. With Department of Justice funding, the ABA Commission on Legal Problems of the Elderly and ABA Commission on Domestic Violence are developing a curriculum for civil lawyers about elder abuse and domestic violence.
Education of judges about elder abuse has increased also. The ABA Commission on Legal Problems of the Elderly and the National Association of
Women Judges developed three curricula on elder abuse for judges and court staff with funding from the State Justice Institute.
Judges and court staff have been trained with those curricula in Tennessee, Illinois, Florida, Washington, Georgia, Ohio, and Wisconsin.
Conclusion
The growth in case law related to elder abuse reflects a significant change in our approach to the problem.
Rather than viewing elder abuse as a social problem to be addressed by human service agencies such as adult protective services and aging organizations, we now view elder abuse as a social and legal problem that is best addressed by an array of services and legal actions. The statutory, policy, and program changes discussed above have both resulted from and led to this new perspective. Other policy changes, particularly the U.S. Department of Justice’s current emphasis on civil and criminal legal actions for nursing home abuse, may have dramatic impact in the future. Much more remains to be done, however. Tremendous variations in state statutes remain. Training of law enforcement officers, prosecutors, lawyers, court staff, and judges is far from commonplace. Victim services providers who aid crime victims in the criminal justice process are just beginning to learn about and assist elder abuse victims (Nerenberg, 1999). The unified family courts that bring a “therapeutic justice” approach to issues of family violence do not seem to consider older persons to be part of the family (Wood and Stiegel, 1996). Professionals who are concerned about elder abuse victims need to continue implementing the creative changes that have been discussed in this article and to continue developing cutting-edge statutes, policies, and programs to address the problem of elder abuse.
These trends in the justice system’s response to elder abuse are important not only for what they reflect about the changes in elder abuse policy and
practice, but also for what they augur for the future.
As stated earlier, reported judicial opinions serve as precedent for future cases. Civil lawyers and prosecutors may be more willing to take on a challenging case when there is precedent on which to base or develop legal theories and arguments. Court cases lead to more court cases and further development of a body of law. Additionally, court cases draw attention from academics and the media, and can thus lead to enhanced awareness by the public, professionals, and policy makers.
References
Heisler, C., 1991. “The Role of the Criminal Justice System in Elder Abuse Cases.” Journal of Elder Abuse and Neglect 3(1), 5-33.
Heisler, C., 2000. “Elder Abuse and the Criminal Justice System: New Awareness, New Responses.” Generations 24(2), 52-58.
Higgins, M., 1998. “Getting Sued by Seniors.” ABA Journal 84(12), 28-29.
Hoffman, D., 1996. “Ensuring Quality Care Through the Use of the Federal False Claims Act.” BIFOCAL 17(1), 1, 10-12.
Lachs, M., and Pillemer, K., 1998. “The Mortality of Elder Mistreatment.” Journal of the American Medical Association 280(5), 428-432.
Moskowitz, S., 1998. “Saving Granny from the Wolf: Elder Abuse and Neglect – The Legal Framework.” Connecticut Law Review 31(1), 77-204.
Nerenberg, L., 1999. Victim’s Rights and Services: Assisting Elderly Crime Victims. San Francisco: San Francisco Consortium for the Prevention of Elder Abuse.
Office of Justice Programs, 1998. Focus Group on Crime Victimization of Older Persons: Recommendations to the Office of Justice Programs. Washington, D.C.: U.S. Department of Justice, NCJ 175035.
Stiegel, L., 1995. Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse. Washington, D.C.: American Bar Association Commission on Legal Problems of the Elderly.
Stiegel, L., 1999. “Civil Remedies for Victims of Elder Abuse.” Victim Advocate 1(2): 3-6.
Wood, E., and Stiegel, L., 1996. "Not Just for Kids: Including Elders in the Family Court Concept.” Clearinghouse Review 30(6): 589-596.
Written by:
Lori A. Stiegel, J.D.
Associate Staff Director
ABA Commission on Legal Problems of the Elderly
740 15th Street NW
Washington, DC 20005
(P) 202-662-8692
(F) 202-662-8698
Copyright © 2000 American Bar Association
This article is a slightly revised version of an article that was originally published in the Summer 2000 issue of Generations, the journal of the
American Society on Aging.
Lori Stiegel specializes in elder abuse issues. She works closely with Utah’s Adult Protective Services director, Ron Stromberg.
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