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Elder Abuse and Exploitation: The Ethical Duty of the Attorney I. Introduction Elder abuse and neglect is one of the more serious social issues facing this country today because it is often hidden and its full ramifications poorly understood. Broadly defined, elder abuse encompasses financial exploitation, physical and emotional abuse, active and passive neglect and elder self-neglect. In its Model Elderly Abuse Reporting Act, the American Medical Association defines “elder abuse” as: An act or omission which results in harm or threatened harm to the health or welfare of an elderly person. Abuse includes intentional infliction of physical or mental injury; sexual abuse; or withholding of necessary food, clothing and medical care to meet the physical and mental health needs of an elderly person by one having the care, custody, or responsibility of an elderly person. As our society ages, attorneys with elderly clients must become familiar with both the symptoms of abuse and the legal framework designed to protect elders from such abuse. Most importantly, attorneys need to know what the law expects and requires of them should they encounter elder abuse. The law recognizes three separate categories of elder abuse:
As people age, social isolation and dependence on others increases the risk of mistreatment. It is currently estimated that one in 25 cases of elder abuse involves financial exploitation.2 Alarmingly, in 2004, Texas had the nation’s highest reported rate of substantiated elder abuse reports – 72.4 percent.3 Last year, Texas Adult Protective Services investigated 68,683 allegations of elder abuse, neglect or exploitation involving adults living at home; confirming 48,380 or 70.4 percent instances of abuse.4 Additionally, national estimates conclude that for every case of elder abuse in the home, 14 incidents go unreported.5 In Harris County and surrounding counties, the number of elder abuse referrals increased by 25.2 percent between 2004 and 2008 – from 11,772 to 14,742, of which 11,892 were confirmed. The majority of the confirmed cases in our area were elder self-neglect. II. Mandatory Reporting of Elder Abuse To address elder abuse, Texas passed § 48.051 of the Texas Human Resources Code which created a mandatory reporting statute and criminalized noncompliance.6 Now, everyone (including attorneys) who has cause to believe that an elderly person is being abused, neglected or exploited has a duty to report their concerns to the Department of Protective and Regulatory Services. There is no exception. It applies to professionals whose knowledge is obtained during the scope of their employment or whose professional communications are generally confidential. If an attorney, clergy member, medical practitioner, social worker or mental health professional discovers abuse, neglect or exploitation, they must report it. Confidentiality is waived under these circumstances but Texas law grants immunity from civil and criminal liability for persons who report elder abuse unless the report is made in bad faith or with a malicious purpose.7 Although people are rarely prosecuted for failing to report elder abuse, the law is nonetheless enforceable and in effect. Attorneys must be aware of their duty to report in order to comply with the law. Prosecutors must also be aware of the statute making the failure to report a Class A misdemeanor.8 III. Abuse and Neglect in Institutions In institutions, elder abuse may be perpetrated by a staff member, another patient, an intruder, or a visitor, but the forms of abuse that occur are virtually the same as those in domestic settings. Of special concern is the failure of the institution to carry out a plan of treatment or care. This may involve unauthorized use of physical or chemical restraints or the use of medication or isolation as punishment, for staff convenience, or as a substitute for treatment and in conflict with a physician’s order. This type of abuse can result in declining health, serious deterioration, pain, and emotional trauma. The institution’s plan of care is a critical document, used to determine whether action or inaction by facility staff is abusive or neglectful. National standards for care in nursing homes are based on public policy set forth in the Nursing Home Reform Act of 1987.9 This law sets forth residents’ rights that are to be ensured for each person. These include: protection against Medicaid discrimination; the right to participate in health care decisions and to give or withhold consent for particular interventions; safeguards to reduce inappropriate use of physical and chemical restraints; provisions to ensure proper transfers or discharges; and full access to a personal physician, the long-term care ombudsman, and other advocates. Each resident has the right to be free from verbal, sexual, physical, or mental abuse, corporal punishment, and involuntary seclusion. For citizens who are 60 years of age and older, Texas provides a so-called “bill of rights” statute – Tex. Hum. Res. Code. §§ 102.002-.003 (2007). This statute tracks OBRA 87 and is even more specific in the duty of nursing homes in respect to resident’s rights. IV. Common Forms of Abuse Symptoms of elder mistreatment may result from physical, psychological, financial or material abuse or neglect, or any combination of these. Physical abuse involves acts of violence that may result in pain, injury, impairment, or disease. Examples include: pushing, striking, pinching, forced-feeding, incorrect positioning, improper use of physical restraints or medication, and sexual coercion or assault. Physical abuse should be suspected when an elderly person has injuries that are unexplained, inconsistent with or contradictory to explanations. It should also be considered when the elderly person has unexpected weight loss; poor or no hygiene; laboratory reports of improper medication dosages; sunken eyes or cheeks; soiled clothing or bed; or a lack of necessities such as food, water, utilities. Although similar, physical neglect is characterized by a failure to provide the goods or services that are necessary for optimal care or to avoid harm. This may include: withholding care; providing inadequate meals, hydration, physical therapy, or hygiene; failing to provide aids such as eyeglasses, hearing aids, or false teeth; or the failure to provide safety precautions. Physical neglect may be suspected in the presence of dehydration, malnutrition, decubitus ulcers, or lack of compliance with medical regimens. Psychological abuse is conduct that causes mental anguish in an older person. Examples include: verbal berating, harassment, or intimidation; threats of punishment or deprivation; treating them like infants; isolating them from family, friends, or activities; and refusing visitors private time with the elderly person. Psychological neglect occurs when caregivers fail to provide a dependent elderly individual with social stimulation. It may involve: ignoring them or giving them the “silent treatment;” or failing to provide companionship, news, or information. The possibility of psychological abuse or neglect should be investigated if the older person seems extremely withdrawn, depressed, or agitated; shows signs of infantile behavior; or expresses ambivalent feelings toward caregivers or family members. Financial or material abuse involves misuse of the elderly person’s income or resources for the financial or personal gain of a caretaker or advisor. This is often accomplished by denying them a home; stealing their money or possessions; coercing them into signing contracts or assigning durable power of attorney to someone; or changes in a will. Some of the signs that there may be problems that warrant further investigation or reporting are: sudden bank account changes, especially unexplained withdrawals of large sums of money; additional unexplained names on an elder’s bank signature card; frequent checks made out to cash; sudden transfer of assets; frequent expensive gifts from elder to caregiver; missing belongings, papers, and credit cards; numerous unpaid bills; or the co-signing of loans. Financial or material neglect is failure to use available funds and resources necessary to sustain or restore the health and well-being of the older adult. Financial abuse or neglect should be considered if the patient is suffering from substandard care in the home despite adequate financial resources; or if the patient seems confused about or unaware of his or her financial situation. Older adults are particularly vulnerable to this type of mistreatment, yet it may be the most difficult to identify. Violation of personal rights occurs when caretakers or providers ignore the older person’s rights and capability to make decisions for himself or herself. This failure to respect the older person’s dignity and autonomy may include denying them the right to privacy to make decisions regarding their health care or other personal issues, such as marriage or divorce. It can also include forcible eviction and/or placement in a nursing home. V. Protecting the Client Many cases of abuse are determined to be self-neglect which can be caused by dementia. The Texas Disciplinary Rules of Professional Conduct requires attorneys to take reasonable action to secure the appointment of a legal guardian if the lawyer reasonably believes that their client lacks capacity and such action is necessary to “protect the client.”10 The fear of being institutionalized is one of the factors that keeps elderly victims from reporting the abuse or causes them to recant their stories after they do report. Thus, the family is usually the last to know if someone has taken advantage of their loved one. The person who is most vulnerable to abuse has the following characteristics: a decline in functional skills (memory, calculation and information processing); social isolation; physical dependence on others; susceptibility to flattery; low self-esteem; wealth; takes financial risks; and a willingness to divulge personal information to strangers. If abuse or exploitation is suspected, attorneys may consider asking the following questions:
If an attorney suspects abuse or exploitation they should call Adult Protective Services at 1-800-252-5400 or use its secured website: https://www.txabusehotline.org. If a facility is involved call the abuse hotline for APS Facility Investigation at 1-800-647-7418. You do not have to identify yourself and these reports are confidential. You can also call any of the statutory probate courts and speak with the guardianship coordinator. The probate courts will require an “information letter” to be faxed/mailed to the court.12 The court can provide you with the necessary information that should be included in the letter. Upon receipt of the letter, it will be assigned to a court and an investigation will commence.13 The Court will then appoint a court investigator to conduct a more thorough investigation or in the alternative a guardian ad litem.
VI. The Attorney and the Incapacitated Client If an attorney notices that their client is unable to manage their affairs, their primary duty is to protect the client. In such cases, Rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct requires attorneys to take reasonable action to secure the appointment of a legal guardian or other representative. If the client has existing estate planning documents that appoint persons to make medical and financial decisions if he/she is unable, the attorney may wish to contact those individuals. If not, the attorney may write the letter as outlined in the preceding section to the court or may consider filing an application for guardianship of the client. The attorney should request the appointment of an independent third party selected by the court. If the attorney has a relationship with other family members, and knows the family dynamics, a phone call expressing the concerns regarding the incapacity may also be an option. VII. The Client as the Perpetrator Sometimes, attorneys discover that their client is not a stellar person. Usually this happens when a client becomes a guardian and the motive is not so much the care of the incapacitated ward but to enrich himself. A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law.14 When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud.15 The attorney may, but is not required to, disclose information gained from attorney-client communications regarding theft of a ward’s property, or fraud on the ward’s estate, to the Court presiding over the guardianship. Section 1.05(c) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer may reveal confidential information: when the lawyer has reason to believe it is necessary to do so in order to comply with a court order, the Texas Disciplinary Rules of Professional Conduct or other law; when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act; and to the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.16 When a client has already begun to commit a criminal or fraudulent act, the lawyer’s responsibility is especially delicate. She may not reveal the client’s wrongdoing, except as permitted or required by Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct. However, she also must avoid furthering the client’s unlawful purpose, for example, by suggesting how it might be concealed. Withdrawal from the representation, therefore, may be required.17 At a minimum, she should consider resigning as attorney of record. This allows her to comply with comment 21 to Rule 1.05 which provides that “[i]f the lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Tex. R. Disciplinary P. 1.15(a)(1).”18 However, due to the mandatory reporting requirements regarding elder abuse, this author believes the attorney must report. VIII. Possible Consequences Regardless of Privity One of the worst-case scenarios is the call to an attorney from the son or a friend requesting that the attorney prepare a power of attorney naming the caller as the agent for an elderly person. The caller will tell the attorney that the principal cannot come to the office and that the caller/agent will pick up the document and be responsible for its execution. The disciplinary rules do not define who the attorney has as a client. It is this writer’s opinion that the client is the principal. Beware of such calls. The attorney has a duty to meet with your client and determine that the elderly person has the capacity to execute legal documents and is not being “pressured” to act. Many times, the power of attorney becomes a license to steal by the agent. Texas law has long held that when an attorney, acting for his client, participates in fraudulent activities, his or her actions are “foreign to the duties of an attorney.”19 In such event, the attorney may be held personally liable if he or she “knowingly commits a fraudulent act or knowingly enters into a conspiracy to defraud a third person.”20 The attorney cannot shield himself or herself from liability on the basis that he or she was an agent of the client because no one is justified on that ground of knowingly committing a willful and premeditated fraud for another.21 Therefore, depending of the facts of the case, an attorney could be held liable for fraud, conversion, conspiracy, unjust enrichment, breach of fiduciary duty and constructive fraud.22 Each claim must, however, be considered in light of the actions shown to have been taken by the attorney in order to determine whether he or she can be held liable for such actions. If the facts show that the attorney actively engages in fraudulent conduct in furtherance of some conspiracy or otherwise, the attorney can be held liable.23 Similarly, if the facts show that an informal fiduciary relationship or confidential relations exist, the attorney may also be held liable.24 In Texas, certain informal relations may give rise to a fiduciary duty. These informal fiduciary relationships have been called “confidential relationships” and may arise “where one person trusts in and relies upon another, whether the relation is a moral, social, domestic or merely personal one.”25 Confidential relationships exist in those cases “in which influence has been acquired and abused, in which confidence has been reposed and betrayed.”26 IX. Conclusion With the aging and longevity of people, the older population has increased tremendously over the past decade. However, living longer does not also equate into having a fulfilling good life. It is the duty of all persons to take time to become active in the lives of the seniors in the neighborhood, church and community and to periodically visit with them to assure that they are okay. If something is not okay, it is mandatory that the neighbor, friend, or colleague report it. As attorneys the standard is higher. In many cases attorneys may be the first to observe a problem. Not only does the law require action, but also the disciplinary rules of conduct that guide attorneys require action. The Hon. Georgia Akers is the Associate Judge of Probate Court No. 3 in Harris County (Georgia.Akers@prob.hctx.net, http://www.co.harris.tx.us/probate). The author wishes to thank Sarah Patel Pacheco for allowing the reprint of a portion of “Guardianships: Recognizing Various Fiduciary Relationships, Duties and Issues That Commonly Arise in Guardianship Proceedings and Related Litigation,” State Bar of Texas, May 6-7, 2004. Endnotes 1. Older Americans Act of 1965, Pub. L. No. 89-73, sec. 302, § 136(a), 101 Stat. 926, 23 (1987). 2. John Wasik. The Fleecing of America’s Elderly, Consumer Digest, March/April 2000. This suggests that there may be at least 5 million financial abuse victims each year. 3. Pamela B. Teaster et. al., The 2004 Survey of State Adult Protective Services: Abuse of Adults 60 Years of Age and Older, Graduate Cen. for Gerontology, U. Ky. (2006), available at http://www.ncea.aoa.gov/NCEAroot/Main_Site/pdf/2-14-06%20FINAL%2060+REPORT.pdf. 4. Texas Department of Family and Protective Services, 2008 Data Book 6 (2008). 5. NCEA Fact Sheet: Elder Abuse Prevalence and Incidence (2005), available at http://www.ncea.aoa.gov/NCEAroot/ Main_Site/pdf/publication/FinalStatistics050331.pdf. 6. The penalty for not reporting elder abuse is a Class A misdemeanor which is punishable by “a fine not to exceed $4,000; confinement in jail for a term not to exceed one year; or both such fine and confinement.” Tex. Penal Code § 12.21 (2007); see also Tex. Hum. Res. Code § 48.053 (2007) (setting penalty for false reports). 7.Tex. Hum. Res. Code § 48.054 (2007). 8. A General Accounting Office study “surveyed forty public officials from Adult Protective Services agencies in twenty-five states and found that they rated a high level of public and professional awareness as the most effective factor in elder-abuse identification.” Molly Dickinson Velick, Mandatory Reporting Statutes: A Necessary Yet Under-Rated Response to Elder Abuse, 1.3 Elder L.J. at 180 (1995). Also, a North Carolina study found that 80% of physicians did not know they had a duty to report elder abuse. Id 9. 42 U.S.C. § 1395i-3 et seq., 42 U.S.C. § 1396r et seq., and 42 C.F.R. § 483 et seq. (often referred to as OBRA 87 because it was part of Omnibus Budget Reconciliation Act). 10.Tex. Disciplinary R. Prof. Conduct, 1.02(a), (g). 11. Adapted from Mount Sinai/Victim Services Agency Elder Abuse Project, Elder Mistreatment Guidelines for Health Care Professionals: Detection, Assessment and Intervention (1988). 12.See Tex. Prob. Code § 683A (Vernon 2007). 13.Id. 14.Tex. Disciplinary R. Prof. Conduct 1.02(c). 15.Tex. Disciplinary R. Prof. Conduct 1.02(d). 16. Rule 1.05 indicates that full protection of client information is not justified when a client plans to or engages in criminal or fraudulent conduct or where the culpability of the lawyer’s conduct is involved. Id. at cmt. 10. A lawyer may reveal information relating to the representation in order to avoid assisting a client’s criminal or fraudulent conduct, and Rule 1.05(c)(4) permits doing so. Furthermore, an attorney has a duty to not to use false or fabricated evidence and Rule 1.05(c)(4) permits revealing information necessary to comply with this rule. For a lawyer who may have been unknowingly involved in past conduct by the client that was criminal or fraudulent, the lawyer’s services were made an instrument of the client’s conduct and, therefore, the comments state that the “lawyer has a legitimate interest both in rectifying the consequences of such conduct and in avoiding charges that the lawyer’s participation was culpable.” Id. at cmt. 12. Rules 1.05(c)(6) and (8) give the attorney the discretion to reveal both unprivileged and privileged information in order to serve those interests. 17.SeeTex. Disciplinary R. Prof. Conduct 1.15(a)(1). 18.Tex. Disciplinary R. Prof. Conduct, 1.05 cmt. 21 19.Poole v. Houston & T.C. Ry. Co., 58 Tex. 134, 137 (Tex. 1882). 20.Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ). 21.Poole, 58 Tex. at 137-38. 22.Querner v. Rindfuss, 966 S.W.2d 661, 670-71 (Tex. App.—San Antonio 1998, writ denied). 23.Id. at 666. 24.Id. at 667. 25.Crim Truck & Tractor v. Navistar Intern., 823 S.W.2d 591, 594 (Tex. 1992); see also Fitz-Gerald v. Hull, 237 S.W.2d 256, 261 (Tex. 1951). 26.Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980).
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