Financial elder abuse
- Financial loss is often permanent and devastating
- Financial restitution is unusual in elder abuse cases
- Prosecution of elder abusers is unusual
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This article reviews the different categories of elder abuse, emphasizing the role and requirements for psychiatrists, with a focus on financial elder abuse.
Elderly persons can become engaged with the legal system in multiple ways, but elder abuse is becoming more widely recognized as an important public health and social issue accompanying the increasing number of older adults in the US.1 Since a 2008 summary of elder abuse in Psychiatric Times, knowledge has grown about many aspects of this issue.2 New programs have been developed, and research into elder abuse is ongoing. Law enforcement agencies and prosecutorial offices have also developed programs, and elder abuse forensic centers have begun to emerge.3 Nonetheless, as happened following the first definitions of child abuse, the magnitude of elder abuse continues to grow faster than our responses.
Psychiatrists are regarded as experts in assessments for decision-making capacity, and requests for consultation may originate from families, physician colleagues, or attorneys. These involve many issues: for example, does Mr Jones have the capacity to make dramatic changes to his will? What about influence from a relative-or caregiver-who appears to command the elderly person’s decision making? Is the elderly person able to make decisions about fundamental care issues, handle his or her finances, decide to sell a house, marry, divorce? What is his level of understanding of the consequences?
This article reviews the different categories of elder abuse, emphasizing the role and requirements for psychiatrists, with a focus on financial elder abuse.
Definitions and typology
The American Medical Association defines elder abuse and/or neglect as “an act of commission or omission that results in harm or threatened harm to the health or welfare of an older adult,” whether intentional or unintentional; several subtypes are recognized.4
Physical abuse refers to the use of force and/or threats that can result in injury, pain, or impairment. In addition, inappropriate use of drugs, restraint, or punishment, or the imposition of medical procedures without informed consent can be considered physical abuse. Documentation of any injuries is important, so a prompt and careful physical examination is required. However, because the elderly are prone to falls and can easily fracture bones or tear skin, establishing abuse can be a clinical challenge. The problem is compounded in the case of lesions such as ulcers that can be either signs of serious neglect or difficult-to-avoid complications of wasting illnesses.
Neglect may be considered a form of self-abuse, although injuries due to neglect-weight loss, decubitus ulcers, unexplained fractures, delay in seeking treatment-may raise questions of abuse on the part of a responsible party, including a caregiver and/or a facility, as in the case vignette that follows.
Sexual abuse includes rape and any other nonconsensual sexual contact, as well as other types of assault-exposure, nudity, etc. Sexual abuse of elders is an especially grave concern when unrelated caregivers attend patients with minimal or no supervision.
Emotional or psychological abuse refers to verbal or nonverbal acts that result in anguish, pain, or other distress (eg, insults, threats, humiliation, harassment). Often associated with physical abuse, verbally abused women also have higher 1-year mortality rates than women who do not report abuse.5 Adverse influence specifically related to psychological elder abuse may manifest in multiple ways. Statements such as “no one else cares about you,” are often accompanied by efforts to isolate the victim by controlling access to mail, phone, or transportation. Isolation from friends, family, and/or community can be considered psychological abuse and also facilitates an abuser by restricting access to other resources or points of view. Such verbal abuse also creates “evidence” that family, friends, or neighbors do not, in fact, care. By creating doubt and fear through the withholding or providing of basic needs (eg, food, hygiene, medications) and browbeating the elderly person, the abuser can extract favors or concessions.
Financial elder abuse has been called “the crime of the 21st century,”6 and with good reason. The most recent estimate of total household wealth in the US is $85.7 trillion, which represents more than 30% of world wealth. Estimates of the amount to change by inheritance in the coming decades reach as high as $40 trillion. Therefore, not only is the disposition of a person’s estate, by will and/or trust, the largest financial transaction in many persons’ lives, and of great significance to families and other heirs, the integrity of the testamentary act, as well as the validity of gifts, property transfers, and other financial acts, is also important for society at large. Opinions about testamentary capacity, either postmortem (in a contested situation) or antemortem may be requested by the family, the patient, or the attorney. Familiarity with the criteria for testamentary capacity and factors relevant to the vulnerability to undue influence is therefore basic.
Elderly persons are also prime targets for many others intent on their own financial gain, often in the guise of helping the elder or of soliciting for charity-the resulting impoverishment can be financially devastating. Official estimates of the sums involved approximate $2.9 billion annually; however, this is a gross underestimate because only a fraction of cases are reported. Many elderly victims do not report losses due to the incapacity that makes them vulnerable in the first place; others, because of the humiliation involved; and still others, because they refuse to acknowledge the fallacy of the scam.
The following case vignette illustrates the interplay that is most commonly encountered in elder abuse matters, although the outcome here is happier for the victim than for many others whose situations are irreversible.
After his wife’s death 20 years earlier, Dr S named 2 of his daughters co-trustees of his trust. As he continued professional activities, he had come to rely on the youngest to assist with his office, and then his home bills. When he retired after a stroke, she and her family came to live with him-and take care of him. Six months before the initial psychiatric evaluation, the other co-trustee daughter was shocked to learn that the assets of the trust had been reduced from several million dollars to less than $100. She confronted her sister and informed her other siblings. Conservatorship was granted by the court, and the experienced professional conservator decided that Dr S had to be removed from his long-time home for his own safety.
Dr S was placed in a nursing home because of his physical debilitation. During the initial forensic psychiatric consultation, Dr S was thoughtful and dignified, but with mild cognitive impairment due to early dementia, probably vascular-based. He was receiving physical therapy, but he had no insight into his youngest daughter’s responsibility for his deterioration, and he was unaware of her financial rapacity: he still endorsed her as his surrogate decision maker.
As Dr S improved physically, he regained some mental energy. His defense of his daughter foundered as the discovery process related to the conservatorship revealed her long pattern of stripping assets: purchasing property in other countries, buying gold ingots, and other patently deceptive acts. An epiphany occurred in a later session-he recalled that as he had weakened, he could not climb the stairs to his bedroom, and the daughter and her family would step over him as he lay exhausted on the landing! As he reflected on the meaning of that act, he came to realize how low her regard and concern had become. This description also proved to be impressive to the court.
At the hearing on competing petitions for conservatorship, the court decisively rebuked the abusive daughter and directed the district attorney to file criminal charges. Dr S was not vindictive, but neither did he continue to defend her; the psychiatrist attributed his equanimity to muted emotionality as a result of his vascular brain damage. Dr S was not called to testify, but the daughter and her husband were stripped of all the acquired assets, together with additional financial penalties, and served time in prison for elder abuse.
In summary, Dr S was the victim of physical neglect and abuse (he had lost 50 lb in 3 years), psychological tyranny and, of course, dramatic financial exploitation, presumably the major motivation for the daughter’s campaign (possibly with the additional benefit of being revenged on siblings of whom she had long been envious). This case illustrates several points to consider in assessments of elder abuse.
It cannot be overemphasized that the actions that constitute abuse are often not recognized as such by the abused party. Dr S was persistent in his defense of his daughter. This behavior is typical, and it was only with the demonstration that his condition was improving with care (previously denied) and with the uncovering of facts, that he acknowledged the truth. The label “abuse” tends to connote adversarial and overtly hostile action, but of the “weapons” of abusers, affection is especially effective because it serves to make the abused person complicit in the acts-he or she really wants to comply with the abuser.
Although not involved in this case, the siren song of romance in particular can be manipulated to lead to marriage, by which the spouse achieves substantial assumed standing for a variety of purposes. Also of note is that capacity to marry (and to divorce) requires only a low standard.7
Greater knowledge of the situation improves the psychiatrist’s ability to assess what the patient can understand and whether he can grasp the situation. Limited knowledge of the elderly person’s situation complicates the evaluating psychiatrist’s ability to judge the elderly person’s insight and the accuracy of perception and memory; collateral information is crucial, and one must be aware of and document the sources available. In this case, the psychiatrist benefited from continuing contact as discovery proceeded and was able to help Dr S recognize emerging facts of his abuse.
A health care agent has multiple options for affecting decision making. Allying with the elder’s physician can provide significant cover for other, more nefarious actions. In this case, Dr S’s cardiologist colluded with the abusive daughter, presumably because of a prior relationship in which Dr S had made clear that she was the responsible one. Control of medications, or access to alcohol or pain medications, or other perceived necessities can also be leveraged to support the goals of the influencer.
Resources and medicolegal collaboration are vital. The other daughter co-trustee and family had the motivation and the resources to support their father. They identified highly skilled professionals, a conservator and an attorney, together with an experienced forensic geriatric psychiatrist, to pursue vigorous action-resources often in short supply.
Physical and psychological recovery are not universal (eg, mortality is substantially increased among abused elders).8 Fortunately, Dr S recovered vitality, weight, strength, and ambulation, with improved mental capacity, and he had the emotional comfort of the restored contact and care from his other 3 children to assist with weathering the betrayal of his youngest daughter and her family.
Financial loss is often permanent and devastating: the financial restitution Dr S received is unusual in elder abuse cases. Prosecution of elder abusers is also unusual, and in many cases no benefit will accrue to the victim even if there is a conviction-typically the funds have been dissipated or hidden successfully. So in this aspect the case vignette shows what one might hope would become a standard for society’s response to this epidemic.
Implications for the practicing psychiatristIdentifying suspected elder abuse. Direct questioning about abuse may not be helpful since, as with Dr S, abused elders may not conceive of themselves as victims. Not surprisingly, therefore, the identification by professionals of elders who have been abused is quite variable, so the clinician must keep in mind the possibility of abuse despite denials. Although multiple screening instruments are available, they are not universally endorsed.9 Alternatively, in exploring the basis for unexplained physical injury or emotional distress, elements of abuse may become apparent and inquiries about financial habits and status may reveal other areas of concern. Office staff may relay clues: changes in communications or scheduling patterns, or waiting room behaviors. An odd request for pain medication may come from an elderly parent who has been coerced into asking to support his child’s or caregiver’s drug habit. Elders from ethnic or religious minorities may be particularly vulnerable because of the need to rely on translators or other mediators and/or because they may be approached or influenced by appeals to cultural-specific issues. Different practice settings (eg, case reports of abuse in skilled nursing home or residential care settings) have provided serious cause for concern.
Reporting. Psychiatrists are obliged to report when elder abuse is suspected or identified-failure to report is a lapse not only in ethical obligations but also has legal implications. Psychiatrists should be alert to the possibility of elder abuse not only when caring for elderly persons, but also with adult and child patients, many of whom will be in situations with aging parents and grandparents, and interactions including the potential for abusive or exploitative relationships may come to light.
Evaluations of elder abuse. Performing and documenting a comprehensive geriatric mental status examination is a prime responsibility-a description is well beyond the scope of this article. Most commonly, the primary concern in the mental status evaluation of a presumed elder abuse victim is the degree of cognitive impairment, but the presence of mood disturbance, thought disorder, and other features may also prove to be critical in the analysis. It is often useful to score a standard rating scale-the Mini-Mental State Examination10 is the most common. However, the evaluation should encompass more detail and areas not covered well in such screening instruments. In particular, the elements of executive function should be evaluated, since these have been shown to correlate better with impaired decision making and vulnerability to abuse, and deficits in this area also typically precede the other cognitive losses of incipient dementia, such as memory.11
At times the examiner’s attention may be directed to a specific area of concern regarding decision making, such as testamentary capacity, contracting, or medical decision making, and vulnerability to influence. An experienced psychiatrist, however, realizes that other areas may soon become relevant in a situation, such as an acute hospital setting, and will consider exploring areas beyond the immediate issue.
Thorough documentation is not only important for the immediate issue, but may prove to be very valuable for application in a subsequent legal matter. Sources of collateral information (eg, from a family member, an attorney) should be clarified. Specific statements by the evaluated elder can be very helpful for triggering your own memory and illustrating the specific communication and reasoning capacity of the patient if you are later called to testify at deposition or at trial about the basis of your opinions.
In addition, as the examining psychiatrist, you should note the following:
• Consultations for purely forensic purposes are generally not covered by insurance, including Medicare; to safeguard yourself, make sure that you have procedures in place that clarify the relationship, fees, and expectations for your work
• Avoid providing a forensic assessment for a patient under your care; whenever possible, avoid ethical conflicts-the requirement for objectivity may conflict with the therapeutic relationship and such a forensic report is likely to compromise the patient12
• Capacity standards differ for different tasks, including making a will, signing a contract, marrying, managing finances (eg, to function as trustee)-as the forensic evaluator, make sure you obtain the specific standard for capacity from the requesting source
• Informed consent is a tricky question before the determination of capacity, but deception as to the purpose of the examiner, the retaining party, or the situation is ethically not permissible; some evaluations may be authorized by court sanction or by another authority, such as a court-appointed conservator
Elder abuse can only be expected to increase in the coming years because of demographic trends and other social changes. Potential financial gains from vulnerable elders are attractive opportunities for unscrupulous persons or may serve as venues for continuing long-standing family conflicts. Physicians, whose practices may already be under duress because of multiple demands and constraints, must nonetheless recognize their important role in the identification of and protection against elder abuse.
As in other matters, there are complex ethical and legal issues that must be considered, including confidentiality and the implications for the patient’s autonomy. Psychiatrists and other mental health professionals in particularly have crucial roles in the assessment of the mental functioning that forms the basis for determining capacity and for evaluating the consequences of abuse. Finally, psychiatrists must also be particularly attentive to issues of confidentiality and conflict of interest in the assessment and treatment of elderly patients who may have been abused.
Dr Read is Health Sciences Clinical Professor, Department of Psychiatry and Biobehavioral Sciences at the David Geffen School of Medicine, UCLA. His practice focuses on geriatric forensic psychiatry in a career devoted to the care and evaluation of elderly patients in multiple settings and situations. He reports no conflicts of interest concerning the subject matter of this article.
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6. The MetLife Study of Elder Financial Abuse. June 2011. https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf. Accessed September 25, 2015.
7. Hankin M, Read S. Mental incapacity to marry. Estate Planning, Trust and Probate News. (State Bar of California). 1994;14:46-52.
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9. Caldwell HK, Gilden GG, Mueller M. Elder abuse screening instruments in primary care: an integrative review, 2004-2001. Clin Geriatr. 2013;20:20-25.
10. Folstein M, Folstein SE, McHugh PR. Mini-mental state: a practical method for grading the cognitive state of patients for the clinician. J Psychiatr Res. 1975;12:189-198.
11. Marson DC. Clinical and ethical aspects of financial capacity in dementia: a commentary. Am J Geriatr Psychiatry. 2013;21:382-390.
12. American Academy of Psychiatry and the Law. Ethics guidelines for the practice of forensic psychiatry. 2005. http://www.aapl.org/ethics.htm. Accessed September 25, 2015.