Your client likely knows the email from the Nigerian prince is a scam. But what about the email from the “granddaughter” stranded on vacation who just needs grandpa to wire her a few hundred dollars so she can get home? Or the real granddaughter who keeps “borrowing” money by taking grandma to the bank and withdrawing cash each week? Or the insurance broker who is selling a 90-year-old client a long-term annuity that guarantees to take care of all her financial needs forever in exchange for a substantial up-front fee? What about the adult child “helping” dad by strictly monitoring all his phone calls and emails and visitors?

Are those things elder abuse? Can you tell from the information provided, or are you left with more questions than answers? If lawyers cannot easily tell what constitutes elder abuse, elderly clients are likely ill equipped to do that screening for themselves.

Lawyers can be better and more effective screeners for elder abuse and fraud, in turn becoming better advocates and counselors for their elderly clients. Wisconsin has a multitude of laws that can be used to curb or remedy elder abuse (injunctions, guardianships, reviews of fiduciary conduct, and so on), but they are of limited use until abuse is accurately identified.

Defining the Problem

According to Wisconsin’s Annual Elder Abuse and Neglect Report: 2018,¹ county agencies received 8,792 referrals for elder abuse, approximately a 3.7 percent increase over the prior year (though less of an increase than between the prior two years.)² Removing the cases of self-neglect (representing roughly one-half of all referrals) as well as calls made simply for informational purposes, 3,340 referrals were made for elder abuse, or roughly 9 referrals per day in Wisconsin in 2018.³

It is likely that number is not accurate. One oft-cited 2011 study of elder abuse in New York state estimated that for every 1 reported case of elder abuse, there are 43.9 unreported cases.⁴ While both the exact number and the precise reasons for underreporting are difficult to prove, this tracks the general underreporting of all types of abuse, elder or otherwise.

According to the 2018 Wisconsin report, 87 percent of the abuse occurred in the elder’s home, and a staggering 75 percent of abusers were a child, parent, grandchild, spouse, or other family member of the elder, with some 40 percent of the abused elders residing with the abuser. Conversely, family members were also the largest group of reporters of abuse to an appropriate authority.

Age alone does not make someone an easy target, but it can be an indicator of a susceptibility to fraud and abuse. As of 2019, some 5.8 million Americans are living with Alzheimer’s disease, with 97 percent of cases occurring in individuals age 65 or older.⁵ Even among people who do not experience dementia, researchers have coined the term “age-associated financial vulnerability” to describe the way older individuals may be more susceptible than others to financial exploitation.⁶ For example, a recent article in NPR’s Marketplace highlighted the case of an operating room nurse in her 70s with no diagnosis of cognitive impairment who tested “normal” on neuropsychological tests and yet was fleeced out of almost $200,000 in a scam involving the purchase of gift cards and bank transfers.⁷ The largest category of elder abuse in Wisconsin in 2018 (other than self-neglect) was financial exploitation.⁸ Nationally, the cost of elder financial exploitation is estimated to be at least $2.9 billion and as much as $36.5 billion annually.⁹

Lawyers can serve as allies in the battle to curb the loss of money, dignity, and independence that results from elder abuse. First, they should be aware of a few strategies that, while generally well intentioned, are not effective methods of screening for elder abuse.

Inappropriate Methods of Screening for Elder Abuse

Assuming All Elders Should be Overprotected. This is a knee-jerk reaction to stories of nice old ladies being fleeced out of millions or being locked away in squalor. If we assume every odd financial transaction or inexplicable behavior from someone over age 60 is a sign of abuse, then screening is simple.

However, reaching a certain age does not automatically negate or reduce an individual’s constitutional rights. Wisconsin law has a very specific set of procedures that must be followed (that is, due process) before a court may limit rights of an elder, and incompetency must be proven.¹⁰ Therefore, treating everyone over a certain age as inherently incompetent to do things such as get married or sign a new will removes dignity from the elder and does nothing to effectively screen for abuse.

Assuming the Family Members are Abusers. Like the above strategy, this method of screening is so overbroad that it fails to have any usefulness. Yes, elder abuse reports in Wisconsin overwhelmingly implicate close family members as the largest category of perpetrators. However, according to the Alzheimer’s Association, 83 percent of all care provided to older adults in the United States is performed not by nursing homes but by family members, friends, or other unpaid caregivers, to the tune of some 18.5 billion hours of informal, unpaid care each year.¹¹ The people who comprise those two groups are not necessarily exclusive. If daughter quits her job to care for mom in her own home, questions about mom’s finances may be reasonable rather than predatory. Therefore, to be truly effective at screening for elder abuse, a lawyer must be prepared to dive into complicated family dynamics before reaching any conclusions.

A Standard Checklist for Screening for Elder Abuse. Unfortunately, there is no one screening method that will work for all situations. Obtaining the confidence of a client, particularly an elder, is not a matter of working through a standard checklist of questions. The approach must be personalized to each client.

Appropriate Methods of Screening for Elder Abuse

Despite the complexity of the issue and the size of the stakes, there are appropriate tools an attorney can use to screen for elder abuse.

Instill Standard Office Procedures for “Helpers.” It is very common for an elderly person to visit their estate planning lawyer with assistance from a family member or a friend, that is, a “helper.” That person may help schedule the meeting, be the mode of transportation, serve as moral support, or assist the elderly person with day-to-day affairs. That may be the only way the elderly person gets to the lawyer’s office.

If the elder is the client, the lawyer should meet with that elder alone, at least initially, in a space where the conversation cannot be seen or heard by whomever is left in the waiting room. This allows the lawyer to more accurately assess the elder’s capacity and desire to participate in a meeting. Individuals who seem confused or hesitant, or fearful of saying anything outside the presence of an adult child or a spouse, might not be there voluntarily or might not have the capacity to be doing legal work. An elder who is being abused surely will not reveal that in front of the person committing the abuse. Before asking any delicate questions, the lawyer should explain the tenets of the attorney-client relationship such as attorney-client privilege and the duty of loyalty. The lawyer then should ask open-ended questions about the client’s goals and concerns in a nonjudgmental manner. Although the helper may eventually be asked to join the meeting if the lawyer and the client think doing so is appropriate, discussions of who to appoint as fiduciaries and beneficiaries should be private conversations, as should the actual signing of any such documents.

Also, if the helpers are left in the waiting room, any staff members who sit nearby should be trained to listen and look for red flags. A helper who has coerced an elder to change their estate planning may not be pleased about sitting in the waiting room. If the helpers are agitated or irate that they are left out of the meeting, or insistent on getting into the meeting, or insistent that the client has to leave if the helper can’t be part of the meeting, that information should be retained by the receptionist or assistant and conveyed to the lawyer as soon as possible.

The attorney may also choose to engage the helper in conversation directly. While the person may be on their best behavior with the lawyer, certain red flags come up with some regularity. For example, a helper who is solely concerned with becoming financial agent but has no interest or concern regarding who will make the elder’s health-care decisions may be more concerned with money than the elder. A helper who insists mom is competent when mom makes decisions she likes, but incompetent when mom makes decisions the helper does not like, is a red flag.

A helper who talks about the elder as if the elder is not there, or talks over the elder, or constantly tells the elder he or she is wrong or stupid or uses otherwise berating language, is not valuing the elder’s right to make her own decisions. Likewise, a helper who insists that all calls and correspondence go only to him or her and not directly to the elder is a sign of possible isolation. Conversely, a helper may truly be a helper, and may be able to shed light on important issues that the elder may not be able or willing to divulge, such as abuse or neglect by someone else.

Treating everyone over a certain age as inherently incompetent to do things such as get married or sign a new will removes dignity from the elder and does nothing to effectively screen for abuse.

Distinguish Capacity Issues from Abuse Issues. These two categories are by no means mutually exclusive, but capacity screening is imperative as part of elder abuse screening. Lawyers are not expected to be psychologists or physicians, but those experts can be referred to in appropriate circumstances. Short of that, there are excellent resources to aid lawyers in assessing capacity. For example, the American Bar Association Commission on Law and Aging’s Assessment of Older Adults with Diminished Capacity is a comprehensive capacity handbook specifically designed for lawyers.¹² The Wisconsin Department of Health Services (DHS) currently has 21 dementia care specialists covering 34 counties throughout the state.¹³ One of the functions those workers carry out is conducting “dementia-friendly business training” to help businesses such as law offices better understand the signs of dementia and appropriate methods of interaction.

Take Notes and Keep Good Records. Not all elder abuse screening can be completed at the initial consult, and abuse may not occur until later in the representation. Keeping detailed notes, preferably stored in a location that is available to any coworkers who may have contact with the client, provides the opportunity to document changes in a client that could indicate abuse, particularly in an ongoing representation. Consider noting not only pertinent legal facts but also the physical appearance of the client, for example, whether he appeared well groomed and healthy, what her demeanor was, whether she was forthcoming with information, whether he was chatty or reserved. This could provide a helpful baseline down the road when a normally outgoing and friendly client berates the receptionist or shows up at the office gaunt or without appropriate clothing or starts bouncing checks. Similar to a client’s desire to drastically change estate planning out of the blue, these could be signs of cognitive impairments or of abuse.

Ask for the Paperwork. Many types of legal representation require disclosure of financial records. Aside from aiding in the representation, this can also serve the important function of screening for financial exploitation or isolation. For example, instead of asking only for current bank balances in a Medicaid planning case, looking at an annual statement or the last few months of statements may bring to light large cash transactions or substantial transfers. If the client cannot explain these transactions or does not want to share that information or the explanation makes no sense, that is a red flag. If the client explains that the transfers were a gift to someone else, but the client is unable to meet their own financial obligations, that is a red flag. If the client says the gifts were their idea, ask what would happen if the client quit sending money to that recipient. The client’s response may provide valuable insight into how much control the client feels they have over the situation, versus being intimidated or threatened to comply. If a client says they never receive any of their own mail and have no idea why and therefore can’t provide statements, that is a sign of a deeper issue. If the paperwork is held by a financial agent who refuses to cooperate, an action under Wis. Stat. section 244.16 to review an agent’s conduct and demand an accounting may help confirm exploitation.

Help Clients Set Up a Personal System for Screening for Fraud and Exploitation. Everyone’s assets are subject to some level of risk. However, lawyers can help elder clients take practical measures to protect against fraud and exploitation. A comprehensive financial power of attorney with a suitable agent and appropriate safeguards (such as accounting requirements) gives someone other than the client the authority to obtain important information and keep track of finances if necessary. Signing up for automatic payment of important expenses can help make sure income ends up in the correct hands. Electronic banking and mobile alerts make it more convenient than ever for elderly clients or their agents to identify potential fraud or suspicious activity immediately.

FINRA Rule 4512 allows elders to name a “trusted contact person” on any accounts managed by a brokerage firm.¹⁴ This can allow an advisor to consult with someone other than the elder in the event of possible exploitation. None of these measures work in all situations, but they can help head off threats before they balloon.

To be truly effective at screening for elder abuse, a lawyer must be prepared to dive into complicated family dynamics before reaching any conclusions.

Heed the Ethics Rules. Attorney ethics rules mandate confidentiality. That does not mean, however, that a lawyer has no options for responding to elder abuse once it has been identified.

Supreme Court Rule 20:1.14, Clients with Diminished Capacity, is particularly useful in this arena. In cases in which a lawyer reasonably believes a client has diminished capacity, Rule 20:1.6 (Confidentiality) still applies, but the lawyer is “impliedly authorized under SCR 20:1.6 to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.”¹⁵ ABA Comment [5] explains that protective measures could include consulting with family members, support groups, professional services, adult protective services agencies, or other entities with the ability to protect the client.¹⁶

Attaining age 60 alone is not itself sufficient to constitute diminished capacity or to assume a person requires assistance.¹⁷ Therefore, attempting to justify a breach of confidentiality simply by pointing to a client’s age without further factors would appear to be a violation of Rule 20:1.6, unless the client has otherwise consented to the reporting. More information and guidance about questionable situations can be obtained by contacting the State Bar of Wisconsin’s ethics hotline.

Empower Clients to Self-Report. No matter how strong an attorney-client relationship is, some clients will simply never feel comfortable disclosing abuse to a lawyer. They may disclose to someone else, if they know how. Aside from a law enforcement agency, which clients might not contact if they do not think their situation is an “emergency,” each Wisconsin county has an Aging and Disability Resource Center (ADRC) and an adult protective services (APS) unit. A lawyer conducting a substantial amount of work with elderly clients should consider having fliers and contact numbers displayed in the office, particularly in a place like the waiting room where clients could discreetly take information without fear of judgment or questions.

Conclusion

Incorporating the above guidelines (many of which are simply good client counseling strategies in general) into a law practice or firm can help lawyers become allies for elder clients and better equipped to pursue legal strategies if necessary.

Endnotes

¹ Wis. DHS, Wisconsin’s Annual Elder Abuse and Neglect Report: 2018.

² Wis. DHS, Wisconsin’s Annual Elder Abuse and Neglect Report: 2017. According to the 2017 Annual Report, there were 8,469 referrals for elder abuse. Wis. DHS, Wisconsin’s Annual Elder Abuse and Neglect Report. There were 7,987 cases in 2016.

³ See Wis. DHS, supra note 1, slide 5.

⁴ 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).

⁵ 2019 Alzheimer’s Disease Facts and Figures 17.

⁶ Mark S. Lachs & S. Duke Han, “Age-Associated Financial Vulnerability: An Emerging Public Health Issue,” Annals of Internal Medicine (Dec. 2015).

⁷ David Brancaccio, Age of Fraud: Are Seniors More Vulnerable to Financial Scams? NPR Marketplace (May 16, 2019).

⁸ Financial exploitation is defined in Wis. Stat. section 813.123(1)(dm) and Wis. Stat. section 46.90(1)(ed) as 1) obtaining an individual’s money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent; 2) theft, 3) substantial failure of fiscal agent to fulfill responsibilities; 4) unauthorized use of an individual’s personal identifying information or documents; 5) unauthorized use of an entity’s identifying information or documents; 6) forgery; or 7) financial transaction card crimes.

⁹ AARP, Katherine Skiba, Older Americans Hit Hard by Financial Fraud (Feb. 29, 2019).

¹⁰ See Wis. Stat ch. 54.

¹¹ Alzheimer’s Ass’n, 2019 Alzheimer’s Disease Facts and Figures, www.alz.org/media/documents/alzheimers-facts-and-figures-2019-r.pdf.

¹² ABA & Am. Psych. Ass’n, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers.

¹³ Wis. DHS, Dementia Care Specialist Program (last revised Nov. 12, 2019).

¹⁴ FINRA rule 4512, Customer Account Information.

¹⁵ SCR ch. 20, Rules of Professional Conduct for Attorneys.

¹⁶ Id.

¹⁷ For example, Wis. Stat. section 813.123(1)(ae) defines an elder at risk as “any person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.” ABA Comment [5] to Rule 20:1.16 talks about incapacity to “communicate or make adequately considered decisions.”