By Wendy Shparago Cappelletto, Esq., CAP
In order to establish a good working relationship with Adult Protective Services agencies, it is essential to understand how these agencies are structured and regulated.
Elder law attorneys who practice in the areas of guardianship and/or elder abuse will almost certainly have some level of involvement with Adult Protective Services agencies. During my tenure at the Cook County Public Guardian’s Office, I have had the opportunity to interact with several different agencies on a wide variety of cases. In order to establish a good working relationship with these agencies, it is essential to understand how these agencies are structured and regulated. Title VII of the Older Americans Act established the Long-Term Care Ombudsmen program and supports the programs that work to prevent elder abuse, neglect, and exploitation. Federal funding to the states is set by 42 U.S.C. § 3058. On March 26, 2020, the Older Americans Act was reauthorized for an additional 5 years.
Federal funds are granted to the respective state units on aging. In Illinois, the state agency is the Illinois Department on Aging. The state unit then disburses funds to the local area agencies on aging. The local area agencies on aging then issue grants to social service agencies in their region to perform the investigatory work. If you are not currently working with your local adult protective services programs, it is important to know your state unit on aging, your local area agency on aging, and the local adult protective services (APS) agencies that operate in your practice area.
Understanding Who Each Agency Serves
In a large metropolitan area such as Cook County, we work with several different adult protective services agencies. It is important to note which agencies serve each client base. In some states, the agencies may have a minimum age, such as 60 or 65, that is necessary for services. Other agencies may serve individuals 18 or older with disabilities. In Illinois, APS agencies serve both older adults and people with disabilities over the age of 18.
It is also important to note the jurisdiction of the respective agencies, not just in terms of geographic territories but also by type of placement. For residents in institutional placements such as nursing homes, Ombudsmen offices may have the sole ability to assist persons in nursing homes. In Illinois, the Adult Protective Services Act was recently amended to allow APS investigators to investigate certain allegations of financial exploitation for residents of nursing homes.
It is important to note which agencies cover which jurisdiction in your area. The catchment areas are important as multiple agencies may be involved in a case if the alleged victim moves or is transported to a different jurisdiction. The agencies may have to transfer a case if the victim moves out of their assigned area.
When Abuse Is Suspected
In some jurisdictions, referrals to APS may be able to be anonymous. Some states offer 24-hour-a-day hotlines to call in referrals. This option may come in handy when an attorney encounters a situation where he or she suspects a potential client is a victim of abuse or neglect. In addition to refusing to take the case, an anonymous call to an APS hotline may be a means to get the individual assistance without compromising the attorney’s ethical duties.
When abuse is suspected, APS agencies may be able to obtain evidence necessary to initiate litigation such as a guardianship or actions designed to remove a bad agent or trustee or to invalidate a power of attorney or trustee. Under the Power of Attorney statute in Illinois, an APS agency can demand an accounting from an agent when the principal appears to be under a disability. The failure and/or unwillingness of the agent to produce an accounting may end up as the basis for a guardianship action. If an agent does produce an accounting or other financial dealings indicative of a violation of the agent’s fiduciary duty, the party seeking to assist the victim may have a good-faith basis to proceed with a guardianship or some other type of action to remove the bad actor.
In many abuse situations involving seniors or persons with disabilities, an abuser has isolated the victim and prevented access to the individual by family and friends and even APS agencies. Some state laws allow Adult Protective Services to seek a court order allowing access to the alleged victim. If an access order is granted, local law enforcement is likely able to assist the APS agency to enter the alleged victim’s residence to assess the conditions and may allow additional relief such as allowing a guardianship evaluation.
As is the case under Illinois law, the critical factor is that a third party has to be the one blocking access to the alleged victim. If there is no third party involved, and the individual who is the focus of the investigation is refusing services, an access order will not be a proper vehicle to meet with the individual. When the subject of an investigation is refusing services, the APS agency may not be very effective and may end up closing their investigation due to the inability to truly investigate the matter.
APS Investigators as Witnesses in Litigation
When litigating matters involving elder abuse or financial exploitation of either an older adult or a person with a disability, Adult Protective Services investigators can be powerful witnesses. Judges often give a great deal of deference to APS investigators, likely because they are perceived as neutral parties to the matter before the Court. In hearings for temporary guardianships, APS workers are often necessary witnesses when the need for guardianship is either due to financial exploitation or when the respondent in the guardianship action is living in an unsafe environment.
It should be noted that under Illinois law, self-neglect is included in our Adult Protective Services Act as a form of abuse. While the investigators may be critical witnesses, preparation is very important. As multiple individuals from a particular agency may be involved in an investigation, in order to avoid a significant hearsay problem, it is essential to clarify which investigator has first-hand knowledge of the evidence and which ones may be relying on the work of one of their colleagues. While it is helpful to obtain records from the APS agency regarding the investigation, your state law may have limits as to who may obtain this documentation and the process for obtaining the documents.
In Illinois, a Public Guardian or State Guardian may obtain this information, but other parties may need a court order and the judge may want to inspect the records in camera before releasing information to the various parties. It is also important to note what the burden of proof is for the agency to make a finding of abuse. In some jurisdictions, the burden is a fairly low standard, so it is not a given that a finding of abuse will meet the burden necessary in a court proceeding.
In addition to support in litigation, involvement with local APS agencies may offer a good networking opportunity for attorneys new to an elder abuse litigation practice. Most programs will have a multi-disciplinary team made up of various professionals in the community to advise the agency on more complex abuse investigations. These teams are referred to as M teams. Volunteering to serve on one of these teams can be a good networking option, particularly for new attorneys seeking to build up their practices.
Additionally, APS agencies also may get funding to file actions seeking access orders and guardianship petitions. As the APS agencies do not generally have attorneys on staff, they may hire local attorneys to represent the agency in legal actions.
Adult Protective Services agencies serve a vital role in the fight against abuse and neglect of older adults and persons with disabilities. Consequently, elder and special needs law practitioners need to be aware of the local agencies and the laws and regulations governing the programs in their states.
About the Author
Wendy Shparago Cappelletto, Esq., CAP, is NAELA President. She is the director of policy and benefits at the Office of the Public Guardian of Cook County, Chicago, Illinois.