Monday, July 06, 2015
Thorner: Elder Justice Act under Obamacare fails seniors – Part 1
By Nancy Thorner -
A few weeks ago, Tom Field, a 25-year advocate of legal reforms as they apply to the elderly, reached out to Nancy Thorner via a phone call from Mentor, Ohio, to ascertain whether Thorner had further interest in pursuing the issue after reading an article emailed to him and others that Thorner had written on July 9, 2011 titled, “Allegations of Alleged Corruption and Abuse at the Probate Court Level in Cook County, IL.”
What prompted Tom Fields to devote 25 years as an elder care/abuse advocate were the circumstances that surrounded his dad's death in Florida. Read here the story Fields wrote about this tragic happening.
As background to understanding what exists at the present time to deal with elder care and its abuse, it is necessary to know what laws have been enacted and the reach and application of these laws.
The Elder Justice Act of 2010
The Elder Justice Act was enacted as part of the Patient Protection and Affordable Care Act (PPACA), also known as Obamacare, on March 23, 2010. The Office of Elder Justice and Adult Protective Services manages the operation, administration, and assessment of elder abuse prevention, legal assistance development, and pension counseling programs. The act itself applies to long term care providers who have received at least $10,000 during the previous year in federal funds. As can be noted below, under the statute assisted living facilities do not qualify as long term care providers.
- Nursing facilities
- Skilled nursing facilities
- Inpatient hospice units
- Intermediate care facilities for mentally disabled
After Thorner's cursory reading of The Elder Justice Act, it sounded quite acceptable, at least in its written form, but further research indicated that it was a mistake to have focused exclusively on the written word. In doing so overlooked was what the Act doesn't do.
Further research revealed that funding for the Elder Justice Act is allocated by the Older Americans Act (OAA), established in 1965 in response to concern by policymakers about a lack of community social services for older persons. Amended numerous times since 1965, the original OAA legislation established authority for grants to States for community planning and social services, research and development projects, and personnel training in the field of aging. Now days the OAA is considered to be the major vehicle for the organization and delivery of social and nutrition services to the aging through APS (Adult Protective Services).
Regarding funding, in FY 2014 less than $9 million or 0.5 percent of total OAA funding went to the APS for the prevention and detection of elder abuse. It is Adult Protective Services (APS) that provides services to insure the safety and well-being of elders and adults with disabilities who are in danger of being mistreated or neglected, are unable to take care of themselves or protect themselves from harm, and have no one to assist them. In most states, APS caseworkers are the first responders to report abuse, neglect, and exploitation of vulnerable adults.
Should this lack of APS funding be a legitimate excuse for ignoring elderly abuse? Increased APS funding, which seems to be the government's solution to solving all of its problems, is not needed to correct the failure of our laws to establish a mechanism that will alert authorities to deplorable and heart-wrenching situation, nor will increased APS funding ensure that authorities will respond correctly to situations involving elderly abuse.
Defining Elder Care Abuse
Although the true prevalence of elder abuse is unknown primarily due to lack of consensus regarding the definition, the failure to follow through with action that either causes harm or places older adults at risk of harm, or within harm’s way, are systematic of abuse situation. Abuse may take the form of physical, mental, emotional, and/or financial.
Much material exists about the exploitation of adults by professional guardians. As already noted, one of the articles Thorner wrote in 2011 prompted Tom Fields to reach out to her. Her article, "Abuse and Corruption Rampant in Probate Court of Cook County, IL", exposed the wide spread corruption in the Chicago Probate Court System. Thorner details how a judge removed the power of attorney from a daughter who was caring for her elderly mother. With a court appointed custodian, over time the daughter's elderly mother's funds were depleted in a process that involved a corrupt judicial system in which the presiding judge, a court-appointed power of attorney, and a compliant nursing facility all colluded to propagate the elder abuse scheme. The husband of the elderly mother's daughter, who wasn't even allowed to visit her mother in the nursing home after her custodianship was removed, set up this website to note and expose other situations involving elderly abuse and judicial corruption.
Tom Fields' video as a powerful example of elderly abuse
The elderly abuse in this video was shared by Tom Fields and addresses the need for legislation to prevent the financial exploitation of the elderly. The scene is from a 3-minute video recorded in a hospital's emergency room. The ABC News Broadcast of the video can be viewed here, as part of an online report that was presented by ABC on elder abuse.
The elderly patient in the video has just suffered a massive stroke. The attorney is presenting the patient a will to sign. The attorney is recording the video in order to present it as evidence that the patient’s condition is not being financially exploited. In fact, the video ended up being key evidence that resulted in the attorney being disbarred and indicted on criminal charge.
Accordingly, the video reflects a situation that happens all too often when the validity of the ward's POAs (Power of Attorneys) is challenged and ignored. It matters not whether the issues involved are simple or complicated, if lawmakers are derelict in doing what is expected of them to prevent the cognitive impairments of the elderly from being exploited. Additional abusive guardianship situations can be viewed here.
Little more is required than (1) a simple checklist which identifies the most obvious situations, such as the one recorded by the video; (2) a law which requires authorities and/or affected family members to be notified in those situations; and (3) a script for authorities to follow that ensures they interview the subject in a manner which meets forensic standards that prevent interested parties from biasing or otherwise interfering with the interview.
The moral arising from Tom Fields' video is as follows: No scam should be simpler to prevent than one which take place in the emergency room of a hospital, yet our government and professional associations have repeatedly proven themselves unequal to this task. .
Questions addressing elements of federal laws that facilitate rather than stem exploitation
Neither the Elder Justice Act, nor any other laws now in place, can be counted upon to reliably prevent or remedy the kinds of scams many are experiencing at the hands of legal professionals to prevent financial exploitation while attending to their elderly loved ones or friends with cognitive impairments
As to the video itself, it provides the context for the following rather lengthy list of questions posed by Tom Fields which address elements of federal laws which not only facilitate the exploitation of cognitively-impaired older adults, but which also are responsible for its under-reporting. Fifteen of the questions have been noted here.Check here for the remaining eight questions.
1) Does the video provide any REASONS FOR SUSPECTING that this victim was being financially exploited?
2) Does the video suggest that the LAWYER WAS AWARE that someone might reasonably suspect that this victim was being taken advantage of?
3) Did MANDATORY REPORTING LAWS protect this victim against being taken advantage of?
4) Did ADULT PROTECTIVE SERVICE LAWS protect this victim against being taken advantage of?
5) Did GUARDIANSHIP LAWS protect this victim against being taken advantage of?
6) Did the ADA (Americans With Disabilities Act) protect this victim against being taken advantage of?
7) Did the OAA (Older Americans Act) protect this victim against being taken advantage of?
8) COULD OUR LEGISLATURE include in our mandatory reporting laws a provision that would require mandatory reporters to report circumstances such as these?
9) SHOULD OUR MANDATORY REPORTING LAWS INCLUDE a provision that would require mandatory reporters to report circumstances such as these?
10) TO WHOM SHOULD OUR MANDATORY REPORTING LAWS REQUIRE NOTIFICATION in situations such as this one? A representative of the hospital, such as its risk manager or patient ombudsman? Adult Protective Services? Law enforcement? Affected family members? At least one of the above? All the above?
11) SOME STATES DEFINE “EXPLOITATION” as the unlawful or improper act of a caretaker. SHOULD THESE STATES AMEND THEIR CODE so as to include the unlawful or improper acts of others, as do the statutes of other states, including Florida, as well as the Older Americans Act?
12) DO OUR LAWS REQUIRE A MEDICAL EXAMINATION of the subject in order to establish the validity of a will, trust, deed, POA or other significant document that is executed in a situation like this?
13) SHOULD OUR LAWS REQUIRE a medical examination of the subject in order to establish the validity of an important document that is executed in a situation like this?
14) WOULD A MEDICAL EXAMINATION of the subject suffice to establish the validity of an important document that is executed in a situation like this?
15) CAN SOMEONE WHO IS MENTALLY COMPETENT still be defrauded or unduly influenced into executing an important document in a situation like this?
Severe cognitive impairment vs. mild
Both the government and professional associations, including the American Bar Association and the Investor Protection Trust (IPT), could and should do a lot more to prevent scams by implementing the recommendations of the American Medical Association and others, but none do, despite awareness of what they need to do.
To the contrary they ignore the needs which arise when an elderly individual suffers from “severe” cognitive impairment -- such as was depicted in the 3-minute video -- in contrast to "mild" cognitive impairment which is characterized by Investor Protection Trust as mild cognitive impairment occurring in seniors who can perform most daily functions, but have trouble or become confused with others, such as following their medicine regimen and managing their finances.
Part 2 will discuss the negligence and fraud which plagues our court system and has destroyed confidence in not only our legal system. but also more generally in our government, as well as proposed legal reforms.
I read your July 6, 2015 article posted on your blog – Probate Sharks. I copied the article below so that anyone who reads this e-mail will be aware of the article. As a person who is virtually computer illiterate I was not able to forward a comment and therefore had to write a separate e-mail.
ReplyDeleteLegislation is not an answer to the problem of ‘elder cleansing’ and its elements of ‘isolation’ ‘abuse’ and exploitation. It is true that where you have corrupt courts and the festering ‘cover ups’ a durable power of attorney and/or all the appropriate estate planning is totally useless. Tom Fields does have a legitimate point when he talked about ‘undue influence.’ Unfortunately, ‘undue influence’ comes in several color schemes. First we have the undue influence in which a member of the 2nd oldest profession participates. That appears to be the focus of the check list. Second there is the influence that certain ‘elder cleansers’ are able to assert on the judiciary. By ‘salting’ the courthouse a bit, we have ‘wired’ cases such as the Alice Gore, Mary Sykes ***** cases. As your column pointed out this venal situation allows an innocent elder person to be punished, exploited, abused and even deprived of human dignity. Third, fourth, fifth, **** the variations on the theme are all present.