Elder Justice

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Background

Elder abuse, like many other forms of domestic abuse, is often a hidden phenomenon that affects at least hundreds of thousands of older Americans. Elder abuse can be physical, financial, or psychological. It may take place at home or an institutional setting.

Adult Protective Services (APS) programs provide safeguards for adults who cannot protect themselves, and APS caseworkers often are the first responders to victims of elder abuse. Nationally representative studies estimating the prevalence of elder abuse are rare. They also suffer from the lack of a common definition of elder abuse among states and a lack of conformity among data collection instruments. Estimates of elder abuse vary greatly, and it is often under reported. A 2011 New York State study estimated that over the course of one year, 76 of every 1,000 people age 60 and older had been abused. The study’s incidence rate was found to be almost 24 times greater than the number of cases reported to relevant authorities.

Financial exploitation—the most prevalent form of elder abuse is financial exploitation. A 2011 MetLife study estimated that older adults who were victims of financial abuse lost at least $2.9 billion in the previous year alone. A 2014 study also found that over the prior five years, 5 percent of New Yorkers over 60 had been victims of financial exploitation. This study also found that family members made up 58 percent of the abusers. This study did not include victims with cognitive impairments. Growing numbers of older Americans, especially those with cognitive impairments, are at heightened risk for financial abuse. About 15 percent of Americans age 70 and older are living with dementia, and this figure is projected to rise rapidly. The prevalence of dementia is expected to double by 2050.

One of the first warning signs of dementia in older adults is having trouble managing finances. Over time older people may need help from family caregivers with banking transactions, bill payment, and decisions about savings, health insurance, investment, and retirement. About 40 million family caregivers help adults manage finances. Banks are in a position to facilitate such caregiving and to help detect and prevent financial exploitation through age-friendly banking practices.

Consequences of elder abuse—among the consequences of elder abuse, the Centers for Disease Control and Prevention lists injuries, pain, poor nutrition, increased vulnerability to new illnesses, worsening of health conditions, and premature death. Other consequences include higher levels of distress and depression. Financial exploitation can also exhaust seniors’ incomes, reduce their health care options, and leave them impoverished and even homeless. There are also many gaps in the network of services for abused and vulnerable adults in areas such as emergency housing, in-home care, responsible guardians, and coordination among federal, state and local agencies.

Prevention—detecting and preventing elder abuse involves increasing awareness among the general public, financial institutions, and professionals. Banks are often the first to notice elder financial exploitation and may be in a position to prevent it. In-home services, such as Meals on Wheels or home health care, are significant in preventing and treating abuse of frail older adults. Beyond the services essential to daily life, a broad range of protective services are needed, ranging from simple assistance with household chores to help with money management and outright guardianship. Community-based programs, which provide services such as counseling, information and referrals, and personal money management, can help prevent and stop abuse. Multidisciplinary teams of professionals can address elder abuse issues that cannot be effectively resolved by workers in a single field. For example, teams of accountants, banking professionals, and attorneys can address financial abuse, while teams that include law enforcement, medical examiners, attorneys, and others can conduct retrospective reviews of deaths resulting from elder abuse. Finally, additional research is needed both to improve our understanding of the markers of physical and psychological elder abuse, and to develop means to assure that abuse is identified and addressed.

Wider availability and use of robocall-blocking technologies would enable consumers to stop robocalls that often generate scams and facilitate financial abuse. However, the major phone companies have resisted offering these technologies to all of their customers, despite a Federal Communications Commission (FCC) ruling making it clear that companies have the legal authority to do so. In 2016, the chairman of the FCC asked the phone companies to develop a plan for blocking robocalls at no cost to the customer.

Legal protection—laws addressing elder abuse in domestic and institutional settings exist in all 50 states and all US territories. Typically APS laws enable protective services agencies to offer victims a range of remedial services. In addition, statutes impose criminal penalties for various forms of elder abuse. Some states have adopted enhanced criminal penalties to deter abuse, neglect, and exploitation of vulnerable adults. For example, certain states specify that enhanced penalties apply when the vulnerable individuals are unable by reason of mental or physical incapacity to protect themselves from abuse, neglect, or exploitation or to provide for their own health, safety, or welfare. Civil and criminal actions against abusers may also deter victimization of the vulnerable. States could encourage more victims to seek justice and increase deterrence against abuse by increasing penalties for violations of financial exploitation laws, including through the recovery of attorneys’ fees and treble damages.

Prosecution—prosecuting alleged abusers is difficult for numerous reasons: Victims may be unable or unwilling to testify due to incapacity, fear, shame, or affinity toward family or associates. Law enforcement staff and prosecutors may lack the training, interest, and resources for these difficult cases. Yet a number of states and local jurisdictions have made significant progress in introducing and implementing new techniques for investigating and prosecuting abuse cases, increasing the chances for successful prosecutions. Training for law enforcement and prosecutorial staff is a key part of this strategy. States and counties should consider designating prosecutors to receive this training and specialize in elder abuse cases.

Silver alerts—like AMBER alerts for missing children, “silver” or “senior” alerts can be quickly sent out when a vulnerable older person or, in some states, a younger person with a disability, goes missing.

Elder justice funding—in recent years, Congress has not significantly increased federal resources to help states protect vulnerable adults. Meanwhile, some funding sources have decreased. It continues to be important for protective services to receive adequate federal support.

The Elder Justice Act (EJA) became law as part of the Patient Protection and Affordable Care Act in 2010. It is the most comprehensive federal legislation to combat elder abuse, neglect, and exploitation. Among other provisions, the EJA creates the Elder Justice Coordinating Council, made up of representatives from federal agencies that play a role in elder justice. It authorizes dedicated funding for adult protective services on the state level, and authorizes grants to support the Long-Term Care Ombudsman Program.

In addition to authorizing funds to carry out the EJA, as well as other elder justice initiatives, the 2016 Older Americans Act reauthorization updated the law to align it with the EJA and additionally enacts the following policies:

  • promoting best practices for responding to elder abuse, neglect, and exploitation in long-term care facilities through the AoA;
  • promoting states’ submission of data concerning elder abuse;
  • directing the Administration on Aging to include, as appropriate, training on elder justice (including abuse prevention and screening) for states, area agencies on aging, and service providers; and
  • Requiring area plans to include efforts to increase public awareness of elder abuse, neglect, and exploitation.

Elder Justice: Policy

Preventing, detecting, and addressing abuse

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Congress should reauthorize the Elder Justice Act and appropriate funds to implement all of its provisions.

Federal agencies should assist state and local agencies in preventing, detecting, and prosecuting all forms of elder abuse. These efforts should include:

  • facilitating uniform definitions of abuse, neglect, and exploitation;
  • uniformly collecting and publishing data;
  • providing victim assistance including in-home care and housing as needed; and
  • supporting training of law enforcement and judicial personnel to increase the quality of investigations and prosecutions.

States and local area agencies should develop public awareness programs and home and community-based services to help prevent, identify, and address cases of elder abuse and to instruct the public how and where to report elder abuse.

Phone companies should offer free robocall-filtering services to all of their customers based on the latest available technology.

Adult protective services (APS)

States should enact, implement, and fully fund APS laws that apply in the community and long-term care settings and provide for:

  • prompt investigation;
  • access to the alleged victim by agency personnel, law enforcement, and other relevant entities;
  • intervention in emergency and nonemergency situations of abuse, neglect, or exploitation of vulnerable individuals;
  • use of the least-restrictive protective action that meets the specific needs of the vulnerable individual;
  • a balancing of the individual’s autonomy and self-determination with the state’s need to protect those people who cannot protect themselves; and
  • programs for abusive family members and caregivers aimed at curbing future abuse.

States also should work to ensure that domestic violence and APS agencies are responsive to the particular needs of older abused spouses and partners.

Criminal and civil penalties

In this policy: StateLegal Rightselder abusepenalties

States should enact and enforce laws that:

  • make it a criminal offense, with enhanced penalties, to abuse, neglect, or exploit a vulnerable individual;
  • provide victims and their legal representatives adequate civil procedures and remedies (including a shift in the burden of proof, the awarding of attorneys’ fees and costs, the awarding of treble damages, expedited hearings, provisions for out-of-court prerecorded testimony, and posthumous recoveries for pain and suffering) against perpetrators of abuse, neglect, or exploitation; and
  • make institutions liable for criminal and civil penalties for victimization of those in their care (see Chapter 8, Long-Term Services and Supports—Quality and Consumers Rights Across Settings).

Multidisciplinary approaches to fight elder abuse

In this policy: StateLegal Rightselder abuse

States should support the formation and ongoing operation of multidisciplinary teams to address elder abuse issues that cannot be effectively resolved by a single discipline.

States should train professionals from a variety of disciplines to improve detection, investigation, and enforcement regarding cases of abuse, neglect, and exploitation.

Every state or county should have a designated elder abuse prosecutor.

Silver alerts

In this policy: StateLegal Rightselder abuseguardianship

States should devise silver alert or similar programs that alert the public to missing older adults only if appropriate limitations are included:

  • The individual who may be the subject of an alert has been adjudicated by a court to be incapable of managing his or her personal affairs, such as through a guardianship proceeding, or has a documented diagnosis of a mental illness, injury, or condition that causes the individual to be incapable of making personal care decisions.
  • The individual who initiates an alert must have one of the following relationships to the subject of the alert: be a legal guardian or close family member, live in the same household, be a caregiver who has had very recent contact with the subject, or be a member of the clergy who has had very recent contact with the subject.
  • The alert system protects the privacy, dignity, independence, and autonomy of the subject of the alert.

Social Services Block Grant (SSBG) and Older Americans Act (OAA) programs

Funding for SSBG and OAA programs that deal with abuse must respond to the increasing number of extremely vulnerable older adults. Additional funding for these programs is needed (see Chapter 6, Low-Income Assistance—Social Services and Community Services Block Grants).