A son cons his 75-year-old Alzheimer’s-inflicted mother out of the family’s century farm, leaving his siblings who are more involved with the farm with nothing. An elderly disabled couple is misled by a long-time neighbor to sell him their farm at substantially below market value, leaving them penniless. A 100-year-old widow loses her home after her niece tricks her into conveying the family farm to her so that the niece can remortgage the property, ultimately leading to foreclosure.
Described as the “crime of the 21st century,” elder abuse has been broadly defined as “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.” Financial abuse is any improper use of funds, resources, or property, which can occur in several ways. The form of financial abuse can be as subtle as a co-op overcharging a 75-year-old farmer every time he comes into the store to purchase seed or an accountant failing to tell an elderly widow the full extent of her tax liability for newly inherited farmland. The abuse also can be calculated, such as when a daughter obtains a financial power of attorney for her mother, then fraudulently takes out loans and withdraws funds without authorization.
Elder financial abuse is rising to epidemic levels in the United States, yet the general public appears mostly unaware of the problem. Every year, up to 5 million Americans fall victim to elder abuse, costing the nation at least $2.9 billion, according to studies published in 2009 and 2011, respectively. “The money that older adults lose in these cases is rarely recovered, and this loss can undermine both the health of older adults and their ability to support and care for themselves,” leaving taxpayers footing the bill. Anyone can be a victim of financial abuse, but the elderly are more vulnerable, often because they may have a larger net worth and are more likely to have health issues.
For those involved in agriculture, the problem of financial abuse may be more profound. The prevalence of unique cultural and socioeconomic risk factors, such as a graying population, complex family and business dynamics, and an increase in wealth in agriculture, make those involved in the agricultural industry more susceptible to elder abuse. Thus, to prevent a culture of abuse from becoming the norm in the agricultural industry, reliable methods of legal recourse and viable solutions, including advanced planning and increased awareness of elder abuse unique to the industry, need to be implemented.
II. A Perfect Storm
A. The Aging Farmer
Farming is one of the few professions in which a majority of those involved may be considered elderly. In 2007, more than 60 percent of farmers in this country were 55 or older. The rate at which those in the industry are aging is unparalleled. Simply put, the nation’s farmers are graying. According to the 2012 Census of Agriculture, the fastest-growing age segment of farmers comprises individuals over the age of 55 and the average age of a farmer is 58.3, an increase from the previous agriculture census in 2007.
Farmers are twice as likely to work past 65 years of age compared with those in other professions, according to a survey conducted in 2000. Reasons for a longer career in farming include a desire to remain active, financial concerns, technological advances, sentimental value of the farm, and the unique view that farming is more of a lifestyle than a career. In fact, 30 percent of farmers said they would never retire, according to a study conducted in 2010.
In 2012, 78 percent of farmland in Iowa was owned by someone over the age of 55. In 2007, about 230 million acres of farmland were controlled by a principal operator age 65 or older. In 2001, 70 percent of the farmland in the United States was expected to transfer hands within the next 20 years. With U.S. farmland valued at more than $1.8 trillion in 2010, this transfer will be one of the single largest transfers of real estate and related wealth in history. “[U]nfortunately, not many people are ready” for such a transfer. As a result, many farmers may be considered vulnerable to financial abuse. It follows that, as the number of elderly farmers increases, so too will the number of cases of elder financial abuse.
B. The Wealthy Farmer
The rise in farmland prices paralleled the rising average age of farmland owners during the first decade of this century. In the Midwest, farmland values have ballooned 90 percent since 2009. Nationwide, farm values have steadily risen to $2,900 an acre, with some farmland selling as high as $22,000 an acre in 2012.
Higher land prices have correlated with increases in the net worth of the average farm household. Land and structures account for 84 percent of the total value of all farm assets in the United States. The amount of all total agricultural assets owned by older adults exceeds $1.3 trillion dollars. Even with the recent recession, farmland has maintained its value.
More than 70 percent of farmers plan to distribute their farmland to family. However, researchers reported in 2007 that up to 89 percent of the nation’s 2.1 million farmers did not have transition plans regarding their land and businesses. In 2008, less than 20 percent of farmers were confident that their succession plans would achieve their succession goals. The lack of adequate estate and succession plans will likely increase the risk of conflict and potential for elder financial abuse. Even when some planning has been done, the incentive for someone to abuse his or her role as fiduciary, such as one held via a power of attorney, is greater because so much value is attached to the succession of the family farm. As a result of increasing wealth in agriculture, older farmers are likely to be frequent targets of financial abuse such as scams, undue influence, and fraud.
C. The Familiar Abuser
A perpetrator of elder abuse is unlikely to be a stranger. In fact, up to 90 percent of elder abuse victims are abused by either a family member or someone with whom they had an ongoing relationship. Financial and emotional ties, a sense of entitlement, and caregiver frustration are often cited as reasons adult children abuse their elderly parents.
Many farmers choose to operate their farm businesses with their parents, siblings, or children. In 2007, the majority of farms and farm assets in this country, 87 percent, were owned and operated by individuals or families. “Intergenerational farms and ranches are unique among businesses in their integration of production and family life.” “[B]ecause production is closely related to the life cycle of the family, the farm, in organization and management, is remarkable, if not unique, among businesses in developed economies.” Family farms more often than not lack written business or managerial plans (including dissolution plans and mission or vision statements) and other formal contracts. As a result, the line between business and family is often blurred.
Different ages, life experiences, beliefs, needs, and wants cause disagreements among family members about the operations and future of a family farm. As a result, complications and disputes are common. In Colorado, more than half of intergenerational farms experience significant family conflict. These conflicts create stressors absent in other industries and may increase the vulnerability of older adults to family pressures.
Complicating the family dynamic can be sibling rivalry. One psychologist noted that “farm family members develop stronger … sibling rivalry” than nonfarm family members. As a result of stronger ties to the land and the desire to hang on to the land at all costs, siblings raised on farms are more likely to develop intense rivalries that are more likely to get out of hand. Family conflicts unique to farming may in turn increase the proclivity of family members to use deceitful ways to obtain what they believe they are entitled to at the expense of others — others who, more often than not, are siblings. The World Heath Organization even identified a significant risk factor of elder abuse as “systems of inheritance and land rights, affecting the distribution of power and material goods within families.” Increased stress and conflict among family members exacerbates the likelihood of elder abuse in the agricultural industry.
D. The Isolated Farmer
Older adults who experience social isolation may be more vulnerable to elder abuse. “Social isolation … can lead to depression, loneliness, or other social and cognitive impairments that then exacerbate the isolation.” Unmet intimacy needs may result, for instance, in a person disclosing personal information such as bank account information, thereby increasing his or her vulnerability to financial abuse. Social isolation also makes it more difficult for outsiders to intervene to protect the elderly from an abusive situation. Strong predictors of elder abuse in the family include social isolation and lack of a formal support system for both the older adult victim and the adult child caregiver.
Social isolation and farming are often linked. Most aging farmers live in rural settings. Senior-oriented cultural and social services and adequate transportation assistance for the elderly are often limited in rural environments. Also, self-reliance and independence are traits associated with farmers, who often spend long hours alone in the field. Farmers demonstrate resilience and, as a result, are not prone to sharing their problems with others or talking about their isolation.
Farm widows and widowers may be at particular risk for social isolation and financial abuse. Single older women are increasingly becoming the outright owners of farmland. According to a report published in 2008, women over the age of 65 owned almost one-fourth of Iowa’s farmland. Further, in 2007, approximately 10 percent of farmland in Iowa was owned solely by a woman over 75 years old. Such women are more at risk not because they lack sophistication but because they often did not handle the day-to-day operations or finances in the past. One 77-year-old farm widow stated, “[I] think the thing that maybe has been the hardest for me is … making decisions … for over 50 years you’ve had someone to talk things over with and now you have to make a decision by yourself.”
As the farmer population continues to gray, the number of farm widows will increase. Their isolation, along with characteristics unique to the agricultural industry, likely increases the farm widow’s vulnerability to financial abuse. Although the farm widow may be particularly vulnerable to financial abuse, this vulnerability is shared by all who work in the agricultural industry.
E. The Competitive Farmer
Many farmers are said to hold an agrarian imperative. The agrarian imperative is described as possessing certain traits, both innate and learned, that “instills farmers to work incredibly hard, to endure unusual pain and hardship, and to take uncommon risks.” This phenomenon motivates farmers to hang onto land at all costs and to acquire new land.
Complicating the agrarian imperative is the increased demand for a limited supply of land. The size of the average family farm is increasing. In 2009, for every 10 farmers who wanted to start farming, only one was discontinuing farming, thereby creating a level of uncertainty about available land not only for beginning farmers but also for existing farmers. The pressure and competition associated with acquiring new farmland creates stress. As a result of the foregoing — the highly competitive nature of farming and the limited availability of farmland — the risk of exploitation may be heightened.
F. Mental Health, Disability, and the Farmer
Elders are often more vulnerable to financial abuse and exploitation due to self-neglect. The rate of self-neglect among older people with mental health problems is higher than that in the general population, as is the rate of abuse. In 2008, an estimated 20 percent of people age 55 or older experienced mental health problems, including anxiety, severe cognitive impairment, and mood disorders. For older adults in the agricultural industry, the number is likely higher.
Farming is an extremely stressful occupation because of factors such as financial worries, unpredictable weather, plant and livestock pests and diseases, and isolation. Aging farmers must also come to terms with traditional aging stressors such as “[the loss] of loved ones, economic insufficiency, physical health concerns, behavioral health concerns and a variety of less frequently reported stressors.” Historically, “the rate of farmer suicides is just under two times that of the general population.”
Similar to mental health issues, disabilities increase the vulnerability of elder adults, often because they depend on others to take care of them. In 2005, nearly 37 percent of people age 65 and older had a severe disability. In 2012, at least 2 million individuals working in agriculture had a disability. Farming is inherently dangerous. In 2011, 24.9 people per 100,000 in the agricultural industry died from work-related injuries compared with only 3.5 per 100,000 workers across all other industries. It is believed that as the number of aging farmers increases, so too will the number of farm-related disabilities.
Cognitive impairment is also associated with elder mistreatment. Farmers have been shown to have a significantly higher risk for Alzheimer’s disease than nonfarmers. A correlation between Alzheimer’s disease and farming may be a result of exposure to defoliants/fumigants and excessive noise.
As this discussion demonstrates, because of the unique stressors of working in the agricultural industry, farmers may be at heightened risk for mental health issues and disability, making them more susceptible to financial abuse.
G. Risk Factors Taken Together
Putting all farmers in a particular category is unfair, as is presuming that an individual farmer will be a victim of elder abuse just because of his or her profession. Studies have not been conducted to prove this presumption. However, as has been discussed, significant risk factors are present in the agricultural industry, such as an elderly workforce, social isolation, and a complicated family business dynamic, making participants in this industry more susceptible to elder financial abuse. Thus, the challenges in preventing, or at least minimizing, elder financial abuse in the agricultural industry must be met with the unique agricultural industry in mind. From a legal perspective, elder financial abuse awareness needs to be promoted, prosecution and reporting requirements need to be strengthened, and unique practical solutions specific to the complex workings of the industry need to be found.
III. Reporting and Prosecuting Challenges in the Rural-Agricultural Setting
Elder abuse is widely underreported. By one estimate only one out of 44 cases of financial elder abuse are reported. Because of fewer resources and increased family connections, underreporting of such abuse is more profound in rural areas, where most family farms are located. Crime in general is often handled more informally in rural areas because law enforcement personnel, the perpetrator, and the victim often know one another — they may even be related. The families involved in a dispute that may rise to the level of a crime can share a long history, particularly in the context of a family farm, where generation after generation occupy the same piece of land. Some view elder abuse as a family matter rather than criminal matter.
For the most part, and for a number of reasons, older victims choose not to involve law enforcement in their victimization experiences, including fear of retaliation, reluctance to report family members, and lack of knowledge about how to report. Reporting can be further complicated in rural areas where shopping and senior activities, cultural and social services, and adequate transportation are often limited, leaving elders without a strong support system and unprepared to deal with and report abuse.
Even when elder financial abuse is reported, prosecuting the crime can be complicated and is often more challenging in the rural setting. A majority of prosecutors say prosecuting elder abuse crimes is more difficult than prosecuting other types of crimes. Elder abuse trials generally cost more and last longer than other trials, and no systematic approach exists for gathering evidence. Evidence may not be as strong because of a lack of documentation, corroboration, or victim cooperation. Consent is a significant issue and difficult to prove in financial exploitation cases. For the rural legal practitioner, a smaller tax base and the absence of practice specialization means fewer resources are available when prosecuting elder financial abuse, perhaps leading attorneys to subconsciously pursue elder abuse cases less frequently than other types of cases.
A successful prosecution also requires adequate legal representation. Rural communities have become increasingly underserved because of the lack of lawyers. Only 2 percent of small law practices in the United States are in rural areas. Given the complexities of successfully prosecuting elder financial abuse, the limited number of lawyers may mean that such cases are moved to the bottom of the priority list.
Prosecutors indicate that victim cooperation is key to pursuing elder financial abuse criminal cases. Ninety-three percent of prosecutors say the elderly make bad witnesses. Reasons include the fact that they are often unavailable because of poor health or cognitive issues or they are unwilling to report for fear of embarrassment, fear of the court, or reluctance to get abusers, particularly if they are family members, in trouble. This hinders prosecution because often the victim is the only witness in an elder abuse case. Even if a victim is willing to testify, he or she may be presented with challenges in doing so. A disabled older person may have trouble physically accessing a court, which is more of an issue in rural communities, where court facilities are more likely to be in older buildings and resources are lacking to make such buildings more accessible. In addition, the court experience can be confusing and overwhelming to someone who is elderly.
Determining whether such abuse has occurred may be more subjective because of the complexity of financial transactions and the possibility that the older adult acted upon well-intentioned, albeit poor, advice. Aside from the absence of professionals who can assist in elder financial abuse cases in the rural setting, even experienced professionals may be challenged in determining whether a transaction was legitimate or was conducted under undue influence, duress, or fraud. The lack of elder adult social services in rural settings only serves to worsen this problem.
Many states are unsure about how to detect and prosecute elder abuse. Iowa has labeled its efforts in combating elder abuse as “fragmented.” State laws and resources are often designed to enable state agencies, such as adult protective services (APS) agencies, to determine only whether abuse or neglect has occurred. In addition, half of the states have no training budget for their APS staff. As a result, workers are “insufficiently trained to handle the complex problems confronting them unceasingly.”
Even some state regulators have difficulty handling elder abuse complaints. For example, in 2011 it was reported, “Twice in the past four years, federal records show, [Minnesota] regulators did not properly investigate 40 percent of reported complaints.” Furthermore, police officers are rarely trained to investigate elder abuse and thus “may not know how to interview an older adult, work with a person who has dementia, collect forensic evidence, or recommend that criminal charges be brought when responding to reports of injuries at care facilities or in homes.”
The complexities of reporting and prosecuting elder financial abuse, coupled with limited resources, makes dealing with this issue more difficult in rural settings than in urban settings.
IV. Solutions
A. Increasing Awareness and Advanced Planning
Inherent uncertainties exist in agriculture, such as weather and commodity prices. However, financial security, or rather the risk of financial exploitation, does not have to be one of them. Because most farmers do not have succession plans, retirement plans, written business plans, or advance directives, perhaps the most practical solution to elder financial abuse in the agricultural context is promoting awareness of the issue and stressing advanced planning and communication among all family members who live on a family farm. Financial abuse is practically impossible to unwind, so the key is getting in front of the abuse before it happens. Lawyers can and should take the lead by promoting awareness of elder financial abuse and educating clients about the importance of advanced planning.
Even the simplest of estate plans can be challenging to put in place, but “[a]gricultural estate planning can be an especially complex endeavor.” Agricultural estate planning must take into account multigenerational transfers of the family farm, including the significant value of the land and business succession planning as well as state and federal tax implications. An attorney also has to manage strong family interplay that often mixes emotion and different personalities while having to clearly identify who is the client throughout the estate planning process. An agricultural lawyer must be a jack-of-all-trades, well-versed in multiple issues, and competent in mediating family conflict.
Since every family farm’s situation is unique, lawyers need to offer creative strategies and individualized solutions for estate planning, such as going over different options, including lifetime transfers, multigenerational trusts, gifts, and deed changes. Because most farmers do not have estate plans, traditional estate planning tools such as advance directives come into play as they do in any other context, particularly before issues of capacity arise. Counseling the client to designate someone in whom he or she has trust and confidence, but who is not a farm stakeholder, may be advisable. However, in the likely event that a power of attorney is granted to a family member or friend, limits should be set, which can be monitored by a third-party monitor, periodic written reports, or designated joint agents.
From a business standpoint, as farms evolve into larger, increasingly complex operations with additional stakeholders, strategic written communication plans become even more necessary. “Under the traditional command and control management style [seen on the family farm], planning for the operation and the future of the business is typically done in a very informal manner.” Ineffective business planning may not adequately reflect the long-term needs of the business and can lead to vulnerability and exploitation. Establishing a family limited partnership can decrease the chances of exploitation by disseminating control among more people.
Approaches such as the whole farm planning model, popular with advocates of sustainable agriculture and retirement planners, can also provide effective financial protection for the farm business and “allows families to examine the internal structure of their business and then develop business, retirement, transition, estate, and investment plans.” Families are encouraged to “identify the external influences that could impact the business in the future,” including economical, environmental, and social influences, and develop goals. By combining family members’ various goals into a single plan, more control is given to each stakeholder. The farm’s financial outlook and income generation, including necessary expenditures such as the replacement of farm assets, is outlined, decreasing the likelihood that the farm’s equity or net worth will be lost. Any deviation from the business plan is easier to recognize, thereby limiting the possibility of a farmer being financially exploited.
Farm estate planning can be further complicated by family issues; for example, a family member may believe that he or she is entitled to the assets. Some of the children move off the family farm, while others stay and help operate it. The siblings who choose to stay and work on the farm may feel entitled to the assets because of their work. The siblings who left the farm may feel entitled to the assets because they believe the assets are their birthright. Sometimes a sibling wants to compensate someone who provided care or attention to a parent. Without clearly written estate plans, conflicts will arise. It is particularly important to draft estate plans with specific issues and family dynamics in mind.
Family communication can be time-consuming, and the absence of it on a family farm, with its unique blend of family and business, is a barrier to effective estate and business planning. The establishment of written plans should include honest discussions among all family members. Although easier said than done, having family conversations about the establishment of business and succession plans is imperative. Lawyers may need to serve as moderators and trusted guides during this process. Formal business plans should summarize the family’s goals for the farm and how these goals are to be accomplished. These plans can also hedge against stress over what amount and who is to be paid for farm operation services and for potential caretaker services. An attorney should be the one who is responsible for drafting arrangements among relatives outlining compensation and payment schedules, while staying true to his or her client, whether the client is an individual or the business.
Equally important in preventing, or at least minimizing, the occurrence of elder financial abuse is for lawyers to do a better job of recognizing the potential for financial abuse. Many of the tools that can be used to protect an elder from financial abuse are also the tools that perpetrators use to facilitate exploitation, such as financial power of attorney documents that may in fact have been prepared by an attorney. Lawyers must be accountable and diligent in recognizing the potential for and existence of financial abuse. They need to know their clients and recognize signs of incapacity. Lawyers must know the warning signs of incapacity. In a rural setting, implementing into their practices things such as making house calls, or simply checking up from time to time on a vulnerable client who may be at risk of isolation, may help circumvent financial abuse. Also, agricultural attorneys must communicate the unique aspects of elder financial abuse in the industry, particularly to the vulnerable populations they serve.
Agricultural attorneys can also leverage their knowledge and expertise through outreach. Perhaps in conjunction with university agriculture extensions and other organizations, such as grower associations and farm bureaus, lawyers can actively use outreach to educate farmers about the dangers and risk of elder financial abuse. Outreach could include conducting presentations about elder financial abuse at meetings such as those held by Rotary clubs or at agriculture symposiums such as those held by Farm Progress. With awareness, the seeds of prevention are planted.
B. Legislative
Most states have adopted elder abuse statutes. These statutes vary widely, but they usually involve state APS agencies and embrace the goals of increasing elder abuse reporting and providing enhanced civil and criminal remedies to victims. Recently, a few states have enacted elder financial abuse–specific statutes, but no statutes are particularly aimed at reducing or ending elder financial abuse in the agricultural industry.
California has narrowed the definition of elder abuse and made it a specific crime, enhancing the ability of prosecutors to prosecute crimes such as undue influence. California has also enacted statutes awarding attorney’s fees and court costs in some civil elder financial abuse cases, perhaps increasing the likelihood that attorneys will take on these cases. Illinois allows prosecutors to freeze the assets of a defendant and has created more substantial penalties, perhaps decreasing the incidence of elder abuse and increasing the odds of victim cooperation and financial recovery. A legislative measure that has gained popularity since the early 1980s is the mandatory reporting of elder abuse. Nearly every state has enacted statutes mandating such reporting. Similar to statutes that mandate the reporting of child abuse, these statutes require certain professionals to report elder abuse, often to departments of health. Professionals in law enforcement, social services, and health care are required to report elder abuse, indicating that the statutes are geared more toward remediating physical abuse. However, a few states have included professionals such as attorneys, accountants, members of the clergy, and bank workers as mandatory reporters, perhaps increasing the likelihood that elder financial abuse will be recognized and reported.
Banks and other financial institutions are at the forefront of many family farm interactions and are extremely important in rural areas. Because community banks know their clients and are relationship driven, they constitute the “front lines of defense” against financial abuse. As a result, mandatory reporting of elder financial abuse by banks could play a crucial role in discovering and combating elder financial abuse in the agricultural industry, even more so than in any other industry.
However, even when required, banks have been slow to report elder financial abuse, likely because of federal privacy rights and liability concerns. Some states have taken a more proactive approach toward elder abuse reporting by financial institutions. Maryland enacted a law requiring financial institutions to report suspected elder financial abuse within 24 hours of “reasonable cause” of suspicious activity. Oregon passed a law limiting the liability of banks that release information regarding financial abuse. Illinois passed a law requiring employees of financial institutions to be trained to recognize and report financial abuse. As public awareness of the problem increases, banks will presumably move toward increased cooperation in confronting financial exploitation.
Nevertheless, statutes mandating the reporting of elder financial abuse only work if people actually report the abuse. Because family members on family farms frequently perpetrate the abuse, and because they live in small towns where people are more likely to know one another, the reporting of abuse may be less likely. Bank employees may know the perpetrator and believe that an elderly customer consented to a financial transaction. For these reasons, the effectiveness of statutes mandating the reporting of financial abuse is compromised in rural communities.
Legislation is a welcome step in combating elder financial abuse. However, funding efforts to combat such abuse may be challenging in rural communities. In addition, problems remain with prosecuting such cases, especially due to privacy concerns, budgetary constraints, and family dynamics, all of which cannot be overcome by statutes that appear effective on their face. Because of the many difficulties in prosecuting elder financial abuse cases, statutes addressing the issue may be insufficient. One study called the California statute, perhaps the most progressive elder abuse statute in the nation, merely a “mirage.” Although it is hoped that these laws are increasing elder abuse awareness, they may be doing little to prevent such abuse, as evidenced by the increasing number of elder financial abuse victims. Enacting elder financial abuse statutes aimed at the agricultural industry not only would be difficult, it would be highly unlikely. Therefore, the challenge is to make the existing statutes effective at targeting elder financial abuse in the agricultural industry and to look at other measures that might be taken to prevent, or at least minimize, this abuse.
C. Initiatives to Increase Reporting and Prosecution
Some nonlegislative efforts being implemented could lead to increased reporting and prosecution of elder financial abuse in the agricultural industry. Although the declining number of attorneys in rural communities is troubling, some entities are working to alleviate the issue. The Iowa State Bar Association created an initiative geared toward placing law school students in rural communities. The program matches students with rural practitioners through clerkships and mentoring with the hope that some of these students will remain in these communities and practice in them after they graduate. The purpose of such efforts is to at least maintain the existing number of rural lawyers and ensure that the rural population has access to legal services.
An enhanced prosecution method that may be more suited to the agricultural community is the use of a special prosecutions unit (SPU). SPUs, although often associated with independent reviews and prosecutions, have also been established to “investigate and prosecute complex … matters.” Because of the complexities of elder financial abuse in the agricultural industry, a statewide agriculture-specific SPU that investigates civil and criminal elder financial abuse cases could be effective. Illinois has found SPUs particularly effective in rural areas of the state where financial resources are limited. Giving agricultural SPU’s original jurisdiction to investigate and prosecute cases of elder financial abuse statewide would alleviate some of the burden faced by rural prosecutors.
Some states have also attempted to ease the court experience of older adults, which could lead to increased reporting by victims. Florida and other states have created elder justice centers designed to “address the inevitable fear, confusion, uncertainty, [and] lack of confidence experienced by many elders confronting the courts for perhaps the first time, especially those with dementia or mental health issues.” Separate waiting rooms and educational programs on the court system aimed at older adults and their families are practical steps to make the judicial process easier for elder adults.
Improving access to the courts, especially in rural areas, and making the proceedings easier to understand for the elderly are positive steps that may increase the reporting of elder financial abuse and prosecution of such cases. The creation of elder justice centers could be particularly useful in rural areas, where most farms are located.
Finding practical solutions to the problem of elder financial abuse is critical because once an elderly person is victimized, the chances of financial recovery and unwinding the exploitation are slim. Thinking outside the box — keeping the unique context of the agricultural industry in mind — is needed to prevent, or at least minimize, elder financial abuse in the industry.
D. A Multidisciplinary Approach
1. Multidisciplinary Response Teams
An increasingly frequent approach to combating elder financial abuse is the use of multidisciplinary response teams (MDTs). Popularized in the 1980s, MDTs are often established in cities or counties and are funded through APS agencies, area agencies on aging, and other public and private sources. MDTs bring together APS and law enforcement personnel, lawyers, social workers, medical professionals, and others, thus giving these teams better insight into a victim’s needs and enabling them to brainstorm and coordinate preventive measures and responses. The advantages of combining representatives from various fields are many. For example, although health care workers and social workers may understand health concerns, they may not have the means or training to maneuver the legal system or banking system as lawyers and bankers do. And those in law enforcement may not have the experience working with older adults that health care workers and social workers do.Often, MDTs examine elder abuse cases, develop investigative guidelines, recommend needed training, and coordinate procedures among agencies. Los Angeles County developed an MDT, called a financial abuse specialist team (FAST), in 1993 to focus on elder financial abuse. FASTs, which have since been established in other areas of the country, include people with expertise in financial matters, such as bank personnel, insurance agents, and real estate agents.
Financial abuse–specific MDTs consisting of agricultural lawyers, accountants, and financial planners; local farm leaders; personnel at university extensions and in organizations such as the Farm Bureau; and others familiar with the unique aspects of agriculture could develop wide-spectrum solutions to the challenge of elder financial abuse in the agricultural industry. Because of their background in agriculture, these professionals are better able to fight elder financial abuse on the family farm. However, similar to other efforts to combat elder financial abuse, funding may be limited, perhaps making such MDTs more practical at the state rather than the local level.
2. The Shelter Model
Taking the concept of the MDT one step further is the elder abuse shelter model. Elder abuse shelters, such as the Harry & Jeanette Weinberg Center for Elder Abuse Prevention in New York City, enables a vulnerable adult to be removed from an abusive situation and provides him or her with a safe place to live. The Weinberg shelter operates out of a nursing home, provides needed medical care, and was established to “holistically address all of the complex and wide-ranging sub-issues that every elder abuse case presents.”
Many shelter residents come from situations in which they depended on the person who was taking advantage of them, and their abusers often isolated them. Lawyers at the shelter give victims access to all legal remedies for fighting financial abuse, including establishing restraining orders and guardianships and freezing financial accounts. The lawyers also partner with the interdisciplinary resources at the shelter to create a plan tailored to each victim’s unique needs.
Lawyers at the shelter provide outreach by training professionals, such as police and bank personnel, and other members of the community (including doormen) to recognize elder financial abuse. The downside of the shelter model is the fact that uprooting someone from familiar surroundings could, in some cases, drive a victim back to the abuser or cause the victim other harm.
Elder abuse shelters are often established in nursing homes. But in rural areas, nursing homes are shutting down as populations dwindle, thus making the shelter model appear impractical. However, some states with rural populations have been looking at unique ways to fill vacant nursing home beds, including renting rooms to seniors. This approach to the shelter model not only provides shelter to victims of elder financial abuse but also helps reduce the number of empty beds in nursing homes, thus helping keep these homes open.
Another advantage of the shelter model is that lawyers and administrators work with elder financial abuse victims complete Medicaid and Medicare forms and take other measures to ensure that the victims receive the benefits to which they are entitled. Further, the collaborative and investigative aspects of the shelter model may relieve some of the burden on APS agencies and their limited resources.
The shelter model may have some viability in dealing with the problem of elder financial abuse in the agricultural industry. However, limitations in rural settings, including the lack of personnel and funding, could continue to be an issue. The takeaway is that those involved in the agricultural industry need to work on creative solutions to ensure that the problem of elder financial abuse in the industry does not worsen.
V. Conclusion
The farmer population is aging, family farms are getting larger and more complex, and farm values continue to skyrocket. Farmers experience several work-related stressors and imperatives not seen in other occupations. In addition, many rural areas lack resources. Consequently, the agricultural industry must shelter itself against “a perfect storm” of elder financial abuse. Because farmers are particularly vulnerable to elder financial abuse, farming communities and agricultural lawyers practicing in them must understand why and how such abuse occurs and be vigilant in recognizing and fighting it.
The legal profession should take the lead in promoting elder financial abuse awareness in the agricultural industry. It can do so by making clients aware of the risks of elder financial abuse, helping them reduce their risk, and emphasizing the importance of traditional estate planning as well as advanced planning to protect their interests. Multidisciplinary response teams and the shelter model can play a part in a broader strategy the profession can spearhead to fight elder financial abuse in the agricultural industry.
Elder financial abuse in the agricultural industry is complex. Methods for fighting this abuse may not achieve perfect results, but a failure to address the abuse could be disastrous.