I. Introduction
Social isolation from family and friends. Lack of mobility. The inability to leave home. Missed medical appointments. A decline in personal grooming. The accumulation of unpaid bills and other debt. The lack of food and other basic necessities. Feelings of depression and powerlessness.
Upon hearing of these conditions, a reasonable assumption would be that they describe the experience of many people under stay-at-home orders in the midst of the current COVID-19 pandemic. However, these conditions do not exist only during an unprecedented health pandemic. Unfortunately, these conditions exist in the throes of elder abuse, a different type of pandemic that impacts elders. The fact that these two pandemics are now overlapping can only be characterized as a perfect storm that has befallen elders.
Financial abuse is recognized as one of five types of elder abuse. The other types are psychological abuse, physical abuse, sexual abuse, and neglect. Despite the fact that financial elder abuse is just as devastating as the other types, it has not received as much attention by researchers and has received even less by the public. As noted by one federal agency in a recent report: “Financial exploitation is the most common form of elder abuse and yet the least studied … .”
In California, most financial elder abuse claims are addressed by probate courts in the context of conservatorships, which are sought to prevent someone from abusing or exploiting a vulnerable adult. But what happens when the perpetrator is someone who was appointed by the court to prevent such abuse from happening in the first place (i.e., the conservator)? This article examines the issue of financial elder abuse and the potential danger of such abuse by conservators in California.
II. What Is a Conservatorship in California?
In California, when an adult (an individual 18 or older) is unable to manage his or her personal and/or financial affairs, a court can appoint a third party (a conservator) to act on behalf of that incapacitated or incompetent adult (the conservatee). The court procedure for this appointment is called a probate conservatorship.
California Probate Code § 1801 provides for two types of probate conservatorships: a conservator of the person and a conservator of the estate. A conservator of the person is appointed to take over decisions concerning the personal care of the conservatee (e.g., health care, food, clothing, housing). A conservator of the estate is appointed to take over decisions regarding the conservatee’s financial affairs.
Conservators in California are required to adhere to the statutory laws set forth in the state’s Probate Code. In addition, California law requires that private conservators be provided with a reference manual that delineates their duties and responsibilities: the Handbook for Conservators. In this handbook, the concept of conservatorship is characterized as follows: “A conservator is an individual or organization chosen to protect and manage the personal care or finances, or both, of a person who has been found by a judge or a jury to be unable to manage his or her own affairs.”
The stated legislative intent of the establishment of a probate conservatorship is commendable. Indeed, the goals of a probate conservatorship are to “[p]rotect the rights” of the conservatee in a way that “allow[s] the conservatee to remain as independent [as possible],” to “[e]nsure that the conservatee’s basic needs … are met,” and to “[p]rovide for the proper management and protection of the conservatee’s real and personal property.” Moreover, no conservatorship can be established “unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.”
A review of the historical reality, however, is that there is ample evidence that too often these statutory requirements have been disregarded or given short shrift. The reasons for this situation are both complex and varied.
III. Conservatorship and the California Elder Abuse Act
The California Probate Code and Handbook for Conservators provide a clear mandate to the conservator to act in the best interests of the conservatee. While this mandate seems fairly obvious and straightforward, it is impossible to deny that, as discussed later in this article, the history of conservatorships in California is a checkered one, particularly regarding elderly conservatees.
Still, it should be acknowledged initially that California rightfully can be considered a pioneer regarding its early recognition of elder abuse as an existential problem. Indeed, California was one of the first states to enact a law specifically designed to provide civil remedies for elder abuse. In 1982, the California legislature enacted the Elder Abuse Act, which was passed “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” The measures enacted as part of the Elder Abuse Act were designed to encourage the reporting of elder abuse claims and to facilitate criminal prosecution of such claims.
Although the passage of the Elder Abuse Act was praiseworthy, its advocates came to realize that it had structural flaws. In amending the Elder Abuse Act in 1991, the California legislature noted that “cases of abuse of these [elderly and dependent] persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.”
Therefore, the California legislature added § 15657 to shift the focus “to private, civil enforcement of laws against elder abuse and neglect.” The significance of § 15657 is that it provides a scheme for enhanced civil remedies, including the recovery of attorney fees and punitive damages and exemption from certain limitations on recoverable damages in survivorship actions.
Since 1991, California’s conservatorship laws have continued to evolve, with laws passed in 2000 and 2001 that provide additional warranted protections for proposed conservatees. For example, in 2000, the California legislature enacted laws to impose stricter accounting procedures and shorter deadlines for the conservator to provide accountings to the court. Moreover, the legislature established a statewide registry, which is maintained by the California Department of Justice, of all persons seeking to act as conservators, guardians, and trustees.
Additionally, in 2001 the California legislature rewrote the accounting sections to require the conservator to provide original account statements at the beginning of the conservatorship and at the end of each accounting period and provide for various remedies when accountings are not filed in a timely manner. The next major legislation enacted resulted from a renowned Los Angeles Times series of articles in 2005 that highlighted various forms of financial elder abuse by conservators. This law became known as the Omnibus Conservatorship and Guardianship Reform Act of 2006 (2006 Reform Act).
IV. Los Angeles Times Reporting and the 2006 Reform Act
In November 2005, the Los Angeles Times published a four-part series of articles based on its research on professional conservators in more than 2,400 conservatorship cases in Southern California between 1997 and 2003. The articles detailed numerous cases of horrendous financial elder abuse by conservators. For example, one conservator paid his own taxes and invested in a friend’s restaurant using the conservatee’s savings; another conservator sold a conservatee’s house to herself at below-market value; still another conservator charged $1,700 to attend the conservatee’s funeral service. Following are some pertinent findings from the Los Angeles Times articles:
• More than half of the professional conservatorships were granted on an emergency basis, which led to procedural safeguards being ignored (i.e., 56 percent were granted without notice to the proposed conservatee or family; 64 percent were granted before an attorney was appointed; and 92 percent were granted before the court saw the court investigator’s report).
• Conservators sometimes “misuse[d] their near-parental power over fragile adults, ignoring their needs and insolating them from loved ones.”
• “In the most egregious cases, conservators plunder[ed] seniors’ estates.”
• “More commonly, conservators [ran] up their fees in ways large and small, eating into seniors’ assets.”
• Once a conservatorship was established, it was both difficult and expensive to terminate.
• Conservators ignored their conservatee’s wishes, particularly regarding the conservatee’s living situation, finances, communications, and social interactions.
• Conservators lacked certification and training.
• Probate court supervision was inadequate (i.e., probate courts “are supposed to monitor [the conservator’s] conduct, scrutinize their financial reports and fine or remove those who misuse their authority. Yet the courts have failed dismally in this vital role” and “frequently overlooked incompetence, neglect and outright theft.”).
• Court investigators were underfunded and overloaded by the number of conservatorship cases they oversaw (i.e., the number of court investigators (10) remained unchanged from 1995 to 2005 despite the caseload increasing from 1,024 cases to 1,408 cases, a 38 percent increase).
• The statewide registry that is supposed to track abusive and incompetent conservators was rarely used despite being mandatory (e.g., only two of the state’s 58 counties reported removal of a conservator from the registry, thus allowing “[r]ogue [conservators] [to] evade accountability by crossing county lines”).
In response to the Los Angeles Times articles, the Judicial Council of California promptly formed a task force on conservatorships, which held hearings and sought input from all stakeholders. In addition, the California legislature conducted its own parallel investigation and held hearings. The California legislature ultimately concluded in one of its main findings that “the conservatorship system in California [was] fundamentally flawed and in need of reform,” whereas others criticized the Los Angeles Times study as overstated and thus questioned the need for a new law.
Nevertheless, for many in California, the Los Angeles Times articles provided a much-needed clarion call to action for the California legislature to address the systemic problems that existed in the conservatorship system. Accordingly, the California legislature enacted the 2006 Reform Act, which comprises four conservatorship bills:
1. Senate Bill 1116. This bill focused on protecting the right of conservatees to stay in their homes and created a presumption that the least restrictive living arrangement for a conservatee is the personal residence of that conservatee, unless proven otherwise at a court hearing.
2. Senate Bill 1550. This bill added the Professional Fiduciaries Act (discussed in more detail later in the article) to the Business and Professions Code.
3. Senate Bill 1716. This bill added a critical right allowing ex parte communications with the court regarding actions by fiduciaries or other matters involving conservatees.
4. Assembly Bill 1363. This bill made changes throughout conservatorship law, including revising the roles of court investigators and imposing new court oversight practices.
The 2006 Reform Act was intended to address certain systemic problems with the conservatorship system; unfortunately, the California legislature failed to provide essential funding for any of the reforms. The Judicial Council estimated that $17.4 million was needed to implement the reforms for fiscal year 2007–2008. However, the necessary appropriation based on this estimate was removed from the final budget. As a result, court resources were strained as the courts gamely attempted to satisfy the new requirements without any additional funding from the state.
In May 2009, a somewhat obscure academic report assessing the effectiveness of the 2006 Reform Act and conservatorship laws in general was published. This report, based on a review of 60 conservatorship cases filed in 2007 in San Francisco County as well as “numerous interviews with relevant parties,” acknowledged that although the 2006 Reform Act had “strengthened the [conservatorship] system,” the fact that it “[had] not been funded, result[ed] in incomplete implementation.” As part of its conclusion, the report identified three distinct problems:
• California lack[ed] an adequate information system for oversight of conservatorships.
• The current probate procedure [did] not sufficiently protect [conservatees’] due process rights.
• California’s process place[d] insufficient emphasis on [pursuing] less-restrictive forms of conservatorship.
The May 2009 report was prescient. In 2012, The Mercury News demonstrated that some of the same issues that the Los Angeles Times focused on in 2005 still existed years later. The Mercury News published its own series of articles detailing financial abuses by private fiduciaries and court-appointed attorneys in Santa Clara County based on a 6-month investigation. The newspaper noted various examples of conservators charging inappropriate fees and families being reluctant to challenge such fees due to the possibility of being forced to pay “fees on fees.” Such examples include one conservator who “charged a Belmont dementia patient $1,062 to help celebrate her birthday. Another billed an incapacitated Sunnyvale couple $26,946, including attorneys’ fees, for the 12 days she spent sorting through mail and orchestrating a cleanup of their roach-infested home.”
The California legislature made a short-lived attempt to relieve elders from the fees-on-fees quandary (i.e., from being put in the untenable position of having to accept the exorbitant costs because it would cost more to challenge them in court, regardless of whether the elders won or lost their cases). However, the proposed law (Senate Bill 156) was vetoed by Gov. Jerry Brown on September 24, 2013. While this legislation would have prevented these fees on fees, Brown reportedly vetoed it as a result of a late amendment that limited judges’ ability to award fees in some cases.
V. Celebrity Cases and Public Awareness
As a general proposition, most people probably would agree that public policy should not be based on media reports, particularly when considering that such reports are driven by the mixed motives of legitimate concerns and commercial pressure. However, it can be argued that media reports do have value by heightening public interest in a specific issue, which is necessary for the implementation of any real reform.
This dynamic seems particularly true regarding financial elder abuse involving celebrities. Examples of such cases include those involving Mickey Rooney, Harper Lee, and Katherine Jackson. But the one case that many elder abuse professionals and experts say really “raised the public’s awareness and understanding of elder abuse” is that of Brooke Astor, the renowned New York philanthropist.
In the Astor case (which began in 2006 and ended in 2009), a petition was filed to remove Astor’s son, Anthony Marshall, as guardian. In addition to this petition, there was a criminal trial, which resulted in a jury convicting Marshall for crimes of financial exploitation along with Marshall’s attorney for forging the signature on one of Astor’s wills. “The Astor case … brought to the fore crimes often overlooked as elder abuse: financial exploitation, for example.” As a result of this case, one commentator predicted that “societal attention to financial abuse of the elderly is likely to increase.”
However, the public attention generated by these occasional publicity laden cases is fleeting. Indeed, “researchers, social workers and advocates argue that while awareness is growing, there may not be enough momentum to make a significant dent in the problem before we’re hit with the so-called ‘silver tsunami’ of aging Baby Boomers in California.” This is a harrowing prospect, given the current projection that California’s over-65 population will be 8.6 million by 2030.
VI. Who Are the Conservators in California?
Three types of conservators exist under California law: relatives or friends, professional fiduciaries, and public guardians. Professional fiduciaries are private professional conservators who must be licensed. By contrast, the public guardian in each county serves as a public conservator, usually for low-income seniors who are receiving or are in need of public benefits.
If a proposed conservatee has the capacity to decide whom he or she would like to serve as his or her conservator,
“[t]he court shall appoint the [proposed conservatee’s] nominee as conservator unless the court finds that the appointment of the nominee is not in the best interests of the proposed conservatee.” However, if the conservatee does not or cannot nominate someone, California law provides an order of priority for conservator selection. This order of priority follows:
1. The spouse or domestic partner of the proposed conservatee or someone the spouse or domestic partner nominates
2. An adult child of the proposed conservatee or someone the adult child nominates
3. A parent of the proposed conservatee or someone the parent nominates
4. A sibling of the proposed conservatee or someone the sibling nominates
5. Any other person whom California law deems acceptable
If no relative or friend is willing or able to be appointed, the choice of conservator comes down to either a professional fiduciary or public guardian.
Professional fiduciaries are individuals licensed by the California Professional Fiduciaries Bureau (PFB). When the 2006 Reform Act was passed, it included the Professional Fiduciaries Act (PFA), which created the PFB to improve court oversight of probate conservatorship cases. The PFA established new licensing requirements for professional fiduciaries, and the PFB’s purpose was to oversee these licensing requirements and the activities of professional fiduciaries. Those covered by the PFA are private fiduciaries who are not family members, including conservators, guardians, trustees, and agents under durable powers of attorney as dictated by the PFA.
As of June 2019, there were 800 registered professional fiduciaries in California over whom oversight was provided by the PFB. The PFA does grant a broad exemption for attorneys, CPAs, persons who are licensed by the IRS as enrolled agents, banks and trust companies, and licensed investment advisors, presumably because these professionals and organizations are already being monitored by their respective accrediting and licensing authorities.
Under California law, someone appointed as conservator for a family member does not need to become a licensed professional fiduciary in order to fulfill that role. Only someone who acts as a conservator “for two or more individuals at the same time who are not related to … each other” must be licensed.
A private professional fiduciary is paid by the family or the conservatee. Importantly, the fees paid to any court-appointed conservator must be approved by the court so that family members have an opportunity to object to fees they deem excessive.
The alternative to appointing a professional fiduciary is appointing a public guardian. Each county in California has a public guardian, who is appointed to serve as conservator for a person who needs one — if no one else has petitioned to fulfill that role. In such a case, the public guardian, like anyone else, is required to apply to the court for appointment to act as conservator. If the conservatee has any assets, the public guardian’s compensation comes from the conservatee’s estate.
California Probate Code § 1820 lists the persons and entities that can file for the establishment of a conservatorship. Specifically, under § 1820(a), any of the following can file a petition for the appointment of a conservator:
(1) The proposed conservatee.
(2) The spouse or domestic partner of the proposed conservatee.
(3) A relative of the proposed conservatee.
(4) Any interested state or local entity or agency of [the] state or any interested public officer or employee of [the] state or of a local public entity of [the] state.
(5) Any other interested person or friend of the proposed conservatee.
VII. What Is Financial Elder Abuse?
Financial elder abuse touches everyone. Your aging parents, relatives, friends, and neighbors are all potential victims. And whether or not financial elder abuse touches you, all of us are potentially at risk due to the negative consequences of the aging process (e.g., cognitive decline, poor physical health, functional impairment, loss of independence).
Financial elder abuse is universally recognized as a significant problem that is only going to get worse. Yet, according to the National Adult Protective Services Association, financial elder abuse is “vastly under-reported; only one in 44 cases of financial abuse is ever reported.” Moreover, it impacts all of us as taxpayers because “[a]lmost one in ten financial abuse victims will turn to Medicaid as a direct result of their own monies being stolen from them.”
The definition of financial elder abuse varies from state to state. California’s definition of financial elder abuse is set forth in the Elder Abuse Act:
(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
Some typical examples of financial elder abuse include stealing an elder’s cash, withdrawing money from an elder’s bank account, cashing an elder’s checks or misusing his or her credit cards, stealing an elder’s jewelry, transferring an elder’s property deeds, misusing an elder’s power of attorney, stealing an elder’s identity, and persuading an elder to put funds into an investment scam.
Tragically, elder abuse in general is most often committed by those who are closest to the elder. In residential settings, 90 percent of elder abuse is committed by family members, with the elder’s adult offspring and spouses accounting for about 70 percent of such cases. Equally disturbing, based on the 2005 Los Angeles Times and 2012 Mercury News articles, it appears that a significant number of perpetrators in California are the conservators appointed by the court to protect the elders in the first place.
A. Financial Elder Abuse by Conservators
This article is not intended to discredit conservators. Most conservators are conscientious in fulfilling their legal mandate. Still, some conservators use their trusted position as an opportunity to enrich themselves financially. The spectrum of such financial abuse, as mentioned previously, ranges from the most egregious and obvious cases in which the conservator plunders the conservatee’s estate in a single occurrence to the more common and less obvious cases in which the conservator runs up his or her fees gradually to avoid detection and siphons off smaller amounts of the conservatee’s estate over months or even years.
The question: How prevalent is the problem of financial elder abuse by conservators in California? The answer: No one knows for sure. The unfortunate reality is that no one knows how widespread financial elder abuse is, let alone how much of it is due to improper conduct by conservators. The reason for this is surprisingly simple: There is no actual or current data on this issue. Moreover, this is not just a problem in California, it is a problem nationwide. “The prevalence of financial abuse of the elderly (like elder abuse in general) is difficult to estimate because there is no national reporting mechanism to record and analyze it, cases often are not reported, definitions vary, and it is difficult to detect. However, the consensus is that it is a significant problem.”
This is not a new revelation by any means. Over the years, numerous studies and reports have found or concluded that the lack of any kind of data system for conservatorships is the primary problem in identifying and responding to misconduct by conservators. The following studies and reports are illustrative.
B. Lack of Data on Financial Elder Abuse by Conservators
2004
The U.S. Government Accountability Office (GAO) issued a report highlighting the lack of data on conservatorships nationwide. Of the courts the GAO surveyed, less than one-third tracked the number of active conservatorships. The GAO concluded that the lack of data obstructed reform and oversight efforts, thus also concluding that there was no way to determine whether incidents of abuse were “isolated examples of abuse in an otherwise well-functioning process or accurately portray[ed] the norm … .” Moreover, the GAO acknowledged that “[s]ufficient data are not available to determine the incidence of abuse of incapacitated people by [conservators] nor the extent to which [conservators] are protecting incapacitated people from abuse.”
2008
The Judicial Council of California acknowledged the lack of data on conservatorships in the state. In its report, the council stated, “Because currently no statewide case management system is in place, and local systems capture data elements differently, basic information on conservatorship cases is not readily available for more than a handful of trial courts.” The council further asserted: “Baseline and ongoing data collection will facilitate systemwide oversight. It is essential to collect baseline and ongoing data for this case type. Ongoing evaluation of the conservatorship system must begin with increasing the availability of descriptive baseline data.”
From another 2008 report: “The ABA and National Center on Elder Abuse recently published the results from their survey of adult guardianship data collected from state court administrators. The survey found that state court administrators do not receive adequate information about trial court guardianships. … The survey authors concluded there is a profound need for uniform, consistent guardianship data, which will become ever more important as demographic trends increase the number of guardianships in the future.”
2009
An academic report prepared in collaboration with the California Advocates for Nursing Home Reform recommended establishing a web-based filing system to address the lack of data in conservatorship cases. The report stated: “California does not currently aggregate extensive data on conservatorship cases. To collect data on the state’s 45,000-plus active conservatorships, one would need to visit every county courthouse to review individual case files. Such data collection is impractical, onerous and time consuming. Furthermore, as we discovered through our own data-gathering effort, deciphering a case file is a highly subjective process. Forms are sometimes incorrectly completed, and occasionally missing from the file altogether. Such patchwork data is an obvious impediment to ongoing oversight and reform efforts.”
2015
A report prepared for the California Senate Committee on Judiciary indicated that the number of probate conservatorships being supervised by California courts was unknown because of the lack of a statewide database and the lack of surveying by the Judicial Council of California to obtain such data.
2016
The GAO issued a report that repeated the findings from its 2004 report regarding the lack of data on conservatorships. The GAO concluded that “the extent of elder abuse by guardians nationally is unknown due to limited data on the numbers of guardians serving older adults, older adults in guardianships, and cases of elder abuse by a guardian. While courts are responsible for guardianship appointment and monitoring activities, among other things, court officials from the six selected states that we spoke to were not able to provide exact numbers of guardians for older adults or of older adults with guardians in their states. Also, on the basis of our interviews with court officials, none of the six selected states appear to consistently track the number of cases related to elder abuse by guardians. Court officials from the six states we spoke with described the varied, albeit limited, information they have related to elder abuse by guardians and noted the various data limitations that prevented them from providing reliable figures on the extent of elder abuse by a guardian … .”
From another GAO report published in 2016: “A court official in California stated that while the Judicial Council of California collects information about requests for restraining orders to prevent elder abuse, it does not separately identify those cases alleging elder abuse by a guardian. The council also collects the number of new guardianships filed each year statewide. The official stated the number of new adult guardianships is partially estimated because about half of the courts in the state report a combined number of guardianships for minors and adults.”
2018
The Office of the Investor Advocate of the U.S. Securities and Exchange Commission issued a report also acknowledging the lack of data on conservatorships: “Ironically, it is easier to say why elder financial exploitation is expected to grow than to quantify how big a problem it is right now. Our knowledge suffers from a scarcity of research and researchers, and the studies that do exist have some significant limitations. … There appear to be few national studies published in the past 10 years on elderly financial exploitation.”
2020
The Congressional Research Service prepared a report for members and committees of Congress identifying this lack of data at the federal level: “Federal efforts to collect data on elder abuse at the national level are complicated by variation in state statutory definitions of elder abuse, which makes it difficult to identify actions that constitute elder abuse, and by the absence of a uniform reporting system across states.”
These studies and reports are unanimous in concluding that, without actual empirical data, it is impossible to determine the extent of financial elder abuse by anyone, let alone by conservators.
VIII. California Adult Protective Services and Financial Elder Abuse
One agency exists in each California county to help elders who are victims of any kind of elder abuse: Adult Protective Services, which is administered by the California Department of Social Services. “Adult Protective Services (APS) is a social services program provided by state and/or local governments nationwide serving older adults who are 65 years and older and adults with disabilities who need assistance.” A call to the California APS hotline is the first step in reporting any kind of elder abuse (with one major exception, which is noted later).
California law mandates that every county in California have a “county adult protective services system” that can respond 24 hours a day, 7 days a week, to reports of abuse and neglect of elderly and dependent adults. The APS agency in each county is generally responsible for investigating elder abuse claims, providing voluntary protective services, and coordinating with other agencies to protect older adults from any type of abuse.
Unfortunately, both nationwide and in California, APS agencies appear to have inadequate funding, thus compromising their effectiveness. In January 2020, a research report funded by the U.S. Department of Health and Human Services, Health Resources and Services Administration, was released. One key finding: “Dedicated funding to support APS is lacking, and this contributes to high rates of staff turnover and inefficient services delivery.”
This report was released prior to the onset of the COVID-19 pandemic, and the problem of inadequate funding will undoubtedly appear even worse when the total adverse economic impact of the pandemic on state and federal budgets is known. Moreover, APS agencies and mandated reporters of abuse cannot do their jobs if they are prevented from accessing elders due to COVID-19 stay-at-home orders issued by civil authorities.
This author communicated via email with an APS liaison at the California Department of Social Services in May and July 2020 about APS funding, the number of elder abuse cases and how many APS investigators are available to conduct investigations, and elder abuse by conservators in the state.
A. Adult Protective Services Funding
According to the APS liaison, Gov. Gavin Newsom’s 2019 budget provided $11.5 million in one-time funding for training APS social workers and for training their allied partners, the county public guardians. Table 1 reflects the funding provided to training partners, with which the state contracts to provide the training.
In a follow-up email, this author asked whether the California APS budget would be impacted by Newsom’s May 2020 revision to his proposed 2020–2021 budget to address the economic impact of COVID-19. The APS liaison said, “The APS training budget was not impacted,” but the impact of funding changes on “the bulk of the APS program in California” was not known because “the state budget [for 2020–2021] [was] not yet final.”
B. Adult Protective Services Cases and Investigators Available to Conduct Investigations
In response to this author’s query regarding the number of elder abuse cases in California and how many APS investigators are available to conduct investigations, the APS liaison stated, “Since APS only practices short-term case management (less than 90 days), work is more accurately measured in terms of investigations as a result of abuse reports received” (see Table 2).
The APS liaison explained that APS received 205,339 reports of elder abuse during fiscal year 2018–2019. However, because a single elder abuse report often leads to more than one investigation, the number of investigations — 242,000 — was higher than the number of reports received. Moreover, in fiscal year 2018–2019, each APS investigator closed an average of 27 investigations per month, or 322 investigations in total, meaning that the 750 APS investigators closed approximately 241,500 investigations during the fiscal year. Importantly, out of the 242,000 investigations, there were “about 51,000 confirmed victims,” 49,141 to whom APS offered various “wide ranging” services. In the end, as if to emphasize how complex and problematic the overall issue of elder abuse is, the liaison explained, “More than 21,000 confirmed cases refused services.”
C. Lack of Adult Protective Services Jurisdiction Over Financial Elder Abuse by Conservators
This author also asked the APS liaison the following question: “What does APS do if the alleged elder abuse is being committed by the appointed conservator?” The liaison’s answer: “Once an individual is conserved, APS no longer has jurisdiction. It is a matter for the courts and law enforcement.”
This is a major loophole in the effort to prevent financial elder abuse. In the typical sequence of events, if John Q. Public suspects that an elder is the victim of financial elder abuse, the course of action is to report the abuse to the APS hotline. However, if the financial elder abuse is being committed by a conservator, this is no longer an option because APS takes the position that it does not have jurisdiction over such a matter. Moreover, the only recourse for John Q. Public is to contact the courts and law enforcement, but this option does not seem practical or realistic. The apparent expectation is that John Q. Public will know the correct court in which to file such a claim and can figure out the process for doing so, which is a daunting task and more onerous than simply calling the APS hotline.
Furthermore, even assuming that John Q. Public is able to navigate the arduous process and contact the proper court, California courts have been hit with budget cuts over the years and are so overburdened with their existing caseload that a legitimate case of financial elder abuse may not receive prompt or adequate attention. Alternatively, a claim could be made with law enforcement, which could result in inaction as well, because law enforcement is often reluctant to get involved in what it deems a civil matter that is not within its purview.
IX. Why Do Cases of Financial Elder Abuse Go Unreported?
There is widespread consensus among experts and researchers that elder abuse in all of its forms is vastly underreported. However, with respect to financial elder abuse, “[T]here seems to be a general view that financial abuse of the elderly is perhaps even more likely to go unreported and thus undetected.”
The truth is that multiple issues exist with the reporting of financial elder abuse. For example, an elderly person might not even know that he or she is a victim of such abuse. If the elderly person does know, he or she might be too embarrassed or ashamed to say anything to anyone, let alone report the abuse to the authorities. The elderly person might not even know how to report financial elder abuse, or he or she might be afraid to report it for fear of not being believed or of being retaliated against if the perpetrator finds out. Moreover, if the perpetrator is the court-appointed conservator, the elderly person could feel that the court is going to believe the conservator rather than him or her. Therefore, on the spectrum of elder abuse, a seemingly unlimited number of reasons exist for why financial elder abuse goes unreported.
Further, it should be noted that unique obstacles exist in determining whether certain financial transactions constitute financial elder abuse. It can be difficult for even an experienced professional to distinguish between a legitimate financial transaction that is imprudent and an exploitative transaction that is the result of undue influence, duress, fraud, or lack of informed consent. Also, both elder and perpetrator could feel that the perpetrator is entitled to some of the elder’s assets, or it might just be difficult to distinguish between “a transfer of assets made with consent [and] an abusive transfer.”
X. Red Flags for Financial Elder Abuse
There are numerous red flags to be on the lookout for to determine whether financial elder abuse is about to take place or has already occurred. Some of the more common red flags are as follows:
• An unexpected appointment of a conservator
• The appearance of a new “friend” or caregiver
• A drastic change in the elder’s daily routine without a reasonable explanation for such change
• Social isolation (i.e., a noticeable withdrawal from relatives, friends, and activities), which frequently is a sign that the elder is being controlled by a third party
• Lack of necessities (e.g., food, medical care, clothing) that the elder can normally afford
• An unexplained transfer of title to real or personal property
• A change in financial practices (e.g., checks written to unusual recipients, suspicious bank withdrawals, newly created joint accounts)
• An atypical increase in credit card balances and/or large credit card transactions
• Complaints by the elder of missing credit cards, checkbooks, or valuables
XI. How to Prevent Financial Elder Abuse
The hard truth is that “[t]here are significant research and data gaps on effective strategies to prevent and intervene in cases of elder abuse.” Ultimately, you and your elderly client are the best protection. You may not be able to depend on any outside help or resources. However, you can take some proven strategies or practical steps to prevent financial elder abuse, all of which can help elderly clients, and even you someday, avoid problematic conservatorships. These strategies include the following:
• Encourage elderly clients to maintain social contact. To avoid isolation, it is imperative for elders to continually be in close contact with multiple relatives and friends and to be as active as possible in their communities (e.g., religious organizations, civic organizations, clubs, hobby groups). The pandemic stay-at-home orders are making this difficult, if not impossible, to maintain social contact, thus forcing elders and their advocates to become more vigilant and creative in accomplishing this goal.
• Ensure that elderly clients obtain a durable power of attorney, to cover their finances, and a health care power of attorney, to cover their medical decisions (i.e., an advance health care directive). These two legal documents can go a long way in determining an elder’s future, avoiding the need for the elder to go to court to continue to live on his or her own terms.
• Discuss the intent reflected in the elderly client’s durable power of attorney and advance health care directive with his or her trusted family members and/or friends and provide copies of these documents to them. California residents can register their advance health care directive with the California Secretary of State.
• Periodically review the elderly client’s durable power of attorney and advance health care directive and direct the client to reaffirm these documents in writing. Have the reaffirmation document witnessed and, if possible, notarized, and give copies of the document to the client’s trusted family members and/or friends.
• Keep copies of the elderly client’s durable power of attorney and advance health care directive as well as a copy of each reaffirmation document and other estate planning documents.
• Direct elderly clients to nominate a conservator now. Handling this task now, while clients have the mental capacity, will help ensure that their selection of conservator cannot be challenged later by someone claiming that the elder lacked mental capacity when the nomination was made.
• Encourage elderly clients to arrange for autopayment of routine bills (e.g., utility bills). Inform clients that paying bills automatically via electronic withdrawals from a checking or savings account will help them avoid the risk of a caregiver or anyone else writing fraudulent checks and absconding funds, and also help them avoid late payments and the fees they generate.
• Send, and advocate that elderly clients send, letters to financial institutions reminding them of their mandated reporter status. California residents should send a letter to each financial institution in which they have an account reminding the institution that all of its officers and employees are deemed mandated reporters under California law and have a duty to report any suspected instance of financial abuse immediately.
• Warn elderly clients to be suspicious of email and phone solicitations. Convince them not to answer the phone if they do not recognize the number; instruct them to let the caller leave a voicemail. Similarly, tell clients to avoid responding to any emails allegedly originating from a government agency or company threatening them with negative consequences if they do not provide their personal information or some type of payment (e.g., for alleged back taxes or unpaid traffic fines). Inform clients that these are phishing emails sent by scammers.
• Urge elderly clients to take an inventory of, and photograph, their valuables. Inform clients that having a record of all their valuables is helpful in the event a caregiver, repair person, or other service person comes into their home and steals their property. Inform them that items such as jewelry can be easily taken and pawned or sold, and they might not realize immediately that these items were stolen. Let them know that an inventory also is helpful when they need to file an insurance claim.
• Pursuade elderly clients to develop a buddy system with neighbors who can keep an eye on them and their home. Instruct clients to provide their buddies with contact information for their adult children or other responsible adults to enable the buddies to contact someone if they see that something is amiss.
• Advise elderly clients to contact the police if they suspect financial elder abuse, regardless of the perpetrator. Alert clients that they may get pushback from the police asserting that financial elder abuse is solely a civil matter. Tell clients that financial elder abuse is not just a civil matter; it’s also a crime.
• Inform elderly clients that if they suspect that their conservator is committing financial abuse, they need to contact the judge who issued the order for conservatorship immediately. Tell clients to contact you for assistance if they do not know who the judge is.
XII. Synopsis
The problem of elder abuse in general has been viewed as an existential crisis in California for decades, certainly since 1982, when the state legislature passed the Elder Abuse Act. However, except for infrequent periods when the public has demanded action and the legislature has taken certain actions, financial elder abuse has been largely unaddressed, unmonitored, underfunded or not funded at all, and simply ignored. Yet financial elder abuse is a problem that is not going away; it is only going to get worse.
Further, the existence of financial elder abuse committed by conservators is an undeniable phenomenon, although the extent of the problem is admittedly unknown. There are measures that can help identify the extent of financial elder abuse and address this problem irrespective of whether the perpetrator is a conservator or someone else. Some of these measures are identified below.
XIII. Call to Action
For at least 4 decades in California, elder advocates, news media, legislators, and the public have made numerous calls to action to address the problem of financial elder abuse as well as problems with the conservatorship system. This author suggests one more call to action, which consists of the following:
• Fund the 2006 Reform Act. This statute, which was never funded, needs to be funded to enable its measures to be fully and successfully implemented.
• Hire more probate court investigators. The number of probate court investigators needs to increase, whose hiring will also require more funding.
• Mandate use of the statewide registry of conservators. The statewide registry, which is mandated by California law, needs to be fully used in order for the courts and the public to be able to identify “bad” or “questionable” conservators and to prevent such conservators from escaping detection by moving among multiple counties.
• Create an elder court in every California county. An elder court in which all types of cases involving elders needs to be created in every county in California. Such a court exists in the Superior Court for Contra Costa County, which could be used as a model.
• Amend California Probate Code § 1471. Probate Code § 1471 needs to be amended to require that every proposed conservatee in a general conservatorship proceeding be represented by counsel.
• Expand the jurisdiction of APS. The jurisdiction of APS needs to be expanded to include the investigation of claims of any type of elder abuse at any time, even after a conservator has been appointed. This would provide the public with an easy way to report any suspicion of elder abuse (i.e., a call to the APS hotline), including in cases in which the conservator is the suspected perpetrator.
• Recruit the assistance of technology organizations to improve the statewide registry of conservators. One or more organizations should be identified to provide resources and digital talent to improve the statewide registry of conservators and to create a better data collection system for tracking active conservatorships and claims of elder abuse by conservators. One example of such an organization is Code for America, which “uses the principles and practices of the digital age to improve how government serves the American public, and how the public improves government.”
XIV. Conclusion
The prescription for staying safe during the COVID-19 pandemic is to isolate oneself from family and friends, which is completely antithetical to how one combats elder abuse, and financial elder abuse in particular. In short, the pandemic stay-at-home orders are exacerbating the problem of financial elder abuse, thereby providing opportunity and justification for anyone (as well as a bad conservator) to isolate an elderly person.
Moreover, the economic impact of the pandemic stay-at-home orders is still not fully known, but it will assuredly worsen the effectiveness of already underfunded courts, their overworked probate investigators, and APS and law enforcement agencies, all of which are tasked with protecting our elders. Most of the measures in this author’s call to action will require additional funding in order to for them to be successfully implemented. Therefore, until there is adequate political will and necessary funding, it is incumbent upon all of us as responsible citizens to be on the lookout for signs that an elder we know (whether in a conservatorship or not) is a victim of, or is about to be a victim of, financial abuse.
Table 1. Funding Provided for Adult Protective Services and Public Guardians Training
|
Breakdown of Contracts with Training Partners
|
FY 2019–2020
|
FY 2020–2021
|
FY 2021–2022
|
Total
|
|
San Diego State University
|
$1,366,666
|
$1,366,667
|
$1,366,667
|
$4,100,000
|
|
California State University, Fresno
|
$1,366,666
|
$1,366,667
|
$1,366,667
|
$4,100,000
|
|
California State University, Sacramento
|
$683,333
|
$683,333
|
$683,334
|
$2,050,000
|
|
California State Association of Public Administrators, Public Guardians, and Public Conservators
|
$314,244
|
$514,783
|
$420,973
|
$1,250,000
|
|
Total
|
$3,730,909
|
$3,931,450
|
$3,837,641
|
$11,500,000
|
Table 2. California Adult Protective Services Cases and Available Investigators, Fiscal Year 2018–2019
|
No. of APS Investigations
|
No. of APS Investigators
|
Average No. of Investigations Closed per Investigator
|
Average No. of Investigations Closed per Month per Investigator
|
|
242,000
|
750
|
322
|
27
|