Elder abuse is the abuse (physical, psychological, or sexual); neglect, abandonment, or financial exploitation of an older individual by another person or entity.¹ Elder abuse can occur in any setting (for example, home, community, or facility),² but is far more common in the community, because the vast majority of older adults (93.9 percent) live outside the facility setting.³ Older victims of abuse face a myriad of unique challenges when seeking help to end the harm they experience. Civil lawyers can provide vital support to older clients who are victims of elder abuse to help them live free from harm.

This article helps civil lawyers understand the dynamics of elder abuse and the barriers older victims face when seeking support and access to the civil legal system. The authors detail specific ways civil lawyers can enhance their work with older victims, with particular emphasis on providing client-defined advocacy and advancing equity principles in their work.

Elder Abuse: The Statistics

Research indicates that 1 in 10 older adults (defined as age 65 and older) experiences elder abuse.⁴ Incidences of elder abuse are significantly underreported.⁵ Often, abusers perpetrate multiple forms of abuse at the same time.⁶

In 2010, there were 5.8 million people age 85 or older, and by 2050, it is projected that there will be 19 million people age 85 or older.⁷ As the population ages, lawyers will increasingly be called on to work with an aging client base and must be prepared to do so effectively. They will need an understanding of who their older clients are and of the experiences they bring to each encounter with the legal system.

Domestic Violence and Older Victims

A significant portion of elder abuse is domestic violence.⁸ Domestic violence can be perpetrated by spouses and intimate partners as well as other family members, including children or grandchildren and extended family. Abuse can also be perpetrated by nonfamily caregivers, fiduciaries, and others in positions of trust. Domestic violence occurs across all racial and ethnic demographics.⁹ It can happen in facility or other institutional settings and can involve stalking in public places.

Abusers use an array of power and control tactics to manipulate and coerce older victims.¹⁰ Often, abusers perpetrate harm against older victims out of greed or a sense of entitlement.¹¹ Abusers may also rely on an older victim for financial or other reasons.¹²

Given the complex dynamics of domestic violence and the behavior of abusers, any lawyer working with an older adult may encounter a victim of domestic violence in their work. Lawyers may also encounter older victims of domestic violence through cases in which the victim is not their client or in which domestic violence is not the presenting legal issue: for example, family law, estate planning, immigration law, and so on. Recognizing the multitude of contexts and reasons for which older victims seek access to the civil legal system is essential to providing support to older victims.

Conversely, lawyers must understand that historical oppression and institutional biases may prevent some older victims (for example, victims from marginalized communities or other vulnerable populations) from speaking to lawyers about the abuse they face and the concerns they may have about seeking legal services.

Lawyers also should be aware of other barriers older victims face when seeking legal services, including mandatory reporting requirements.¹³ An older victim may fear retribution or a loss of autonomy or independence, such as being placed in a nursing home) if they report abuse. Under Wis. Stat. section 49.90(4)(ar), reporting is permitted, but not mandated, for lawyers and people working under their supervision. Regardless, lawyers should be familiar with Wisconsin mandatory reporting requirements that apply to other professionals.

Older victims may also experience deep shame, guilt, or anxiety about the consequences of reporting abuse perpetrated by a child or grandchild. Older victims who are abused by long-term partners or spouses may hold generational, spiritual, or other values that lead them to seek an end to the abuse but not necessarily the end of their relationship with their abuser. Older victims also face stigma and ageism when dealing with abuse and engaging support systems. Myths and misconceptions around who can be victims or abusers and the invisibility of older victims – especially as related to their experience of domestic and sexual violence – are difficult barriers to overcome when older victims seek to ameliorate the harm they experience.

Determining Client Capacity

Occasionally, the issue of capacity may arise in lawyers’ work with some older clients who are victims of elder abuse.¹⁴ Understanding the lawyer’s role and responsibility in this context is key to providing effective and zealous advocacy for the client.

In some situations, a lawyer may need to determine whether a client has the legal capacity to contract with the lawyer for legal services or to carry out particular legal transactions. Rule 1.14 of the ABA’s Model Rules of Professional Conduct¹⁵ provides some guidance to lawyers on ethical standards related to assessing capacity, and what to do when the specter of a client’s potential diminished capacity becomes an issue in the lawyer’s work. For more information on the topic of capacity, including legal approaches to defining diminished capacity and incapacity, clinical capacity models, assessing a client’s capacity, and guidance on making referrals for medical consultation for a more comprehensive capacity assessment, consult the ABA’s Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers resource.¹⁶

Recognizing Elder Abuse

Given the many barriers that may prevent older victims from reporting abuse, lawyers need to be able to recognize risk factors and indicators for elder abuse. Lawyers also must be able to identify tactics of an abuser, which may manifest during the lawyer’s interactions with a client. With this knowledge, lawyers can use strategies to help screen for elder abuse, identify coded disclosures, and encourage clients to safely report abuse.

Research shows that gender, social isolation, diminished health or mental capacity, incapacity or other impairment, and interdependence of the abuser and victim are all factors that increase the likelihood an abuser will victimize an older adult.¹⁷ Being emotionally upset or agitated, bruising or other untreated injuries, and an older client’s reports of abuse are all indicators that abuse may be occurring.¹⁸

In a lawyer’s work with older clients, an abuser may demand to accompany the client in meetings, speak for the client or attempt to dominate conversation, refuse to let the lawyer speak privately with the client, or be hostile toward the lawyer. An abuser may claim to behave this way because they are concerned for the client or for the client’s legal interests.

Lawyers may also encounter older victims of domestic violence through cases in which the victim is not their client or in which domestic violence is not the presenting legal issue (for example, family law, estate planning, immigration law, and so on).

Abusers may seek to obtain powers of attorney, conservatorships, guardianships, or other legal and decision-making power over an older victim. This may occur in the context of a client’s incapacity. Abusers may attempt to coerce an older victim to create, modify, or nullify a will, trust, gift, or other transfer of estate assets or property to favor the abuser’s desires and interests. Abusers may also attempt to use legal mechanisms to pressure a victim into creating a joint bank account or taking on unnecessary debt.

Lawyers can ask clients screening questions to assess whether they are experiencing domestic violence.¹⁹ Screening questions include inquiries such as whether they feel safe in their home or living situation, if they are being kept away from other people, if anyone has tried to hurt or harm them, if anyone has touched them inappropriately or roughly, whether they rely on others for activities of daily living, if others depend on them for financial or other needs, or whether anyone has prevented them from accessing basic necessities (for example, medication or medical care). Questions may also include asking whether anyone has spoken to them in a way that made them feel ashamed, afraid, or threatened or whether someone has tried to force them to sign papers or use money against their wishes.

A client’s fears about physical safety, access to basic needs and resources, or retribution or loss of independence may cause them to be reluctant to share their experience of domestic violence. A client might use coded disclosure as a safe way to raise the topic, particularly during initial interviews. Some examples of coded disclosure include “I don’t want to make anyone mad,” “I just do whatever my spouse/child/grandchild says,” and “Sometimes my spouse is rough with me.” Any of these or similar statements can be a way to open the door to further conversation. Be aware that disclosures might not happen during an initial intake or screening. Taking time to build trust and rapport is essential to supporting a client to report abuse.

Responding to Elder Abuse

Client-defined advocacy requires lawyers to develop a holistic understanding of the legal needs and perspective of a client and to contemplate the breadth of nonlitigation options, legal rights and remedies, and victim services available to each client. It involves listening to the client, building a respectful rapport, and centering the client’s experiences and strengths in the lawyer’s interactions and legal strategy. Client-defined advocacy also requires working in partnership with the client to construct a comprehensive approach and web of social supports to advance the client’s interests and enhance their safety. Within this framework, successful outcomes are defined by clients, not by the lawyer’s values and opinions.

A vital component of client-defined advocacy is having clarity around who the client is and communicating that fact to all parties. Consequently, lawyers should meet with clients individually at intake and in later meetings to ensure confidentiality and discuss why the meeting is taking place, their legal concerns, client confidentiality, and the lawyer’s role in their legal case. Safety planning²⁰ is also a component of client-defined advocacy. Working with clients to explore the confidential services and safety supports provided by domestic and sexual violence advocates is crucial to ensuring the client’s well-being throughout the process of pursuing any remedies.

Finally, equity principles require lawyers to contemplate the differential effects of the civil legal system and institutional barriers on the client’s experiences and their perception of the appropriateness of particular legal interventions. Working with clients to craft an equitable approach to addressing their concerns, including exploring nonlitigation alternatives, can positively affect their safety and well-being throughout the legal representation.

Nonlitigation and Litigation Legal Remedies

Mediation may be proposed as a method to resolve elder abuse. Generally, an abuser’s desire to maintain power and control over the victim is inconsistent with the objectives of mediation. Mediation may provide an abuser with access to a victim and enhance the likelihood of violence. If clients wish to explore this option, lawyers should help them consider whether it would be a safe and effective tool to accomplish their goals.

Restraining orders²¹ can be an appropriate intervention in elder abuse cases. Circumstances in an older victim’s life (for example, the abuser is their partner, child, or caregiver) may require lawyers to be creative in the remedies pursued as part of the order (for example, a prohibition against assaulting or threatening, but that allows parties to communicate). Working with clients to seek specific protections to include in the restraining order is key to the long-term success of this remedy.

Gender, social isolation, diminished health or mental capacity, incapacity or other impairment, and interdependence of the abuser and victim are all factors that increase the likelihood an abuser will victimize an older adult.

Older victims may choose to execute a durable power of attorney to name a trusted person to make decisions on their behalf. Be sure to screen for signs of abuse to ensure the client is making this designation freely and without coercion. Lawyers also can assist clients to revoke an already executed power of attorney to ensure that an abusive party no longer has the authority to make decisions for them.

The issue of legal guardianship or conservatorship may arise in a lawyer’s representation of an older client. A capable, well-intentioned guardian can protect an incapacitated victim from future harm by an abuser or pursue perpetrator accountability on a victim’s behalf. Conversely, there are serious risks to an older person if an abusive person gains guardianship or conservatorship over the individual with the goal of exacting power and control over them.

An older client may wish to pursue damages in civil court for injuries related to domestic violence. If a client might have a claim for tort-related damages, the lawyer should discuss this option with them.

Victim Services

Older victims can access a myriad of victim supports and services when dealing with elder abuse. Domestic and sexual violence programs provide crisis and long-term resources and supports including 24-hour crisis line help, emergency shelter, peer-to-peer counseling, and support groups. Advocates provide confidential communications with abuse victims. Some programs have specialized services and supports to work with older victims, while others might not. It may be helpful for a lawyer to meet with a local service provider to understand the scope of their services, and to communicate that information to the client before making a referral.

The aging network consists of thousands of private and public local service providers that coordinate access to elder rights advocacy, community services, and in-home services for older adults. Services provided by the aging network often include benefits, financial and legal assistance, prevention programs, health and wellness programs, transportation services, long-term care and in-home services, nutrition services, and information and referral assistance.

Adult protective services (APS) units are state-authorized entities that provide support to both older and at-risk vulnerable adults who are in danger of being abused or neglected or who are unable to protect themselves. APS workers investigate reports and complaints of abuse, neglect, or exploitation. APS workers can make home visits and provide case-management and referral services for community-based resources. Regardless of whether lawyers are mandatory reporters in their jurisdictions, they should learn how APS investigations work in their communities so they can support clients and their safety through the investigatory process while providing appropriate legal interventions and supports.

Conclusion

As the population ages, older individuals will increasingly seek the services of civil lawyers to help end the abuse they face. Lawyers are uniquely situated to respond to the needs of older victims of abuse. The confidential attorney-client relationship can be a safe and compassionate space for victims to disclose their experience with abuse and overcome barriers to receiving help.

Once abuse is identified, lawyers can support survivors by providing responsive, client-defined advocacy that is rooted in equity principles. Exploring appropriate nonlitigation and civil legal remedies and resources on behalf of older clients will enhance client safety and advance their legal interests. Lawyers should get to know the key community partners available in their areas that can provide victim services and supports to older clients. Each of these tools and strategies can improve an older client’s quality of life, increase perpetrator accountability, and empower older individuals to live life free from abuse.

Endnotes

¹ M.T. Connolly, B. Brandl & R. Breckman, “The Elder Justice Roadmap: A Stakeholder Initiative to Respond to an Emerging Health, Justice, Financial and Social Crisis” (2014).

² Id.

³ www.census.gov/content/dam/Census/library/publications/2018/acs/ACS-38.pdf.

⁴ R. Acierno et al., “Prevalence and Correlates of Emotional, Physical, Sexual, and Financial Abuse and Potential Neglect in the United States: The National Elder Mistreatment Study,” Am. J. of Pub. Health, 100(2), 292-97 (2010).

⁵ M. Lachs & J. Berman, “Under the Radar: New York State Elder Abuse Prevalence Study” (Lifespan of Greater Rochester Inc., Weill Cornell Medical Center of Cornell University, & New York City Department for the Aging: 2011).

⁶ Acierno et al., supra note 4.

⁷ U.S. Dept. of Commerce, U.S. Census Bureau (2010).

⁸ Acierno et al., supra note 4; Lachs et al., supra note 5.

⁹ M. Hernandez-Tejada et al., “The National Elder Mistreatment Study: Race and Ethnicity Findings,” J. of Elder Abuse & Neglect 25(4), 281-93 (2011).

¹⁰ D. Spangler & B. Brandl, “Abuse in Later Life: Power and Control Dynamics and a Victim-Centered Response,” J. of Am. Psych. Nurses Ass’n, vol. 12, no. 6, at 322-31 (2007). Also, for a visual representation of these dynamics, see Abuse in Later Life Power and Control Wheel, designed by NCALL and the Wisconsin Coalition Against Domestic Violence.

¹¹ Lundy Bancroft, Why Does He Do That? Inside the Minds of Angry and Controlling Men (New York, NY: Berkley Publishing Group 2002); E. Stark, Coercive Control: How Men Entrap Women in Personal Life (New York, NY: Oxford University Press 2007).

¹² Bancroft, supra note 11.

¹³ For more information on mandatory reporting requirements related to elder abuse in your jurisdiction, see the U.S. Department of Justice’s Elder Justice Initiative website (last visited Dec. 10, 2019).

¹⁴ The Population 65 Years and Older in the United States: 2016.

¹⁵ ABA, Model Rules of Professional Conduct R. 1.4 (2009).

¹⁶ American Bar Association Commission on Law and Aging & American Psychological Association, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (Washington, DC: 2005).

¹⁷ R. Acierno et al., “The National Elder Mistreatment Study: An 8-year Longitudinal Study of Outcomes,” J. of Elder Abuse & Neglect, 29(4), 254-69 (2017).

¹⁸ For more information on behavioral indicators of elder abuse and domestic violence, see appendix A.

¹⁹ For more information on sample screening tools, see appendix B.

²⁰ To learn more about safety planning, see Personalized Safety Plan for Older Survivors of Abuse and Safety Planning Tip.

²¹ www.endabusewi.org/our-work/legal-services/.