Making the perpetrator pay: collecting damages for elder abuse, neglect and exploitation
Marc B. Hankin
CALIFORNIA LAW MAKES LAWSUITS PRACTICAL
California is the first state to pass a law that makes it practical for elderly people who suffer physical abuse, neglect, or financial exploitation from con artists, relatives or staff in nursing homes to file civil suits and collect dam ages from the perpetrators. Passed in January, 1992, “The Elder Abuse and Dependent Adult Civil Protection Act” (EADACPA, pronounced “ee-dak-pa”), also makes it financially worthwhile, for the first time, for lawyers to represent these elderly victims in court. The law requires the court to award attorneys’ fees and costs if the victim proves a case of clear and serious abuse.
The victim’s lawyer must prove by clear and convincing evidence that the wrongdoer was guilty of recklessness, fraud or malice in the commission of certain forms of abuse: physical abuse, neglect, and financial or fiduciary abuse. “Clear and convincing evidence” is a burden of proof that is mid-way between the much stricter criminal law standard of proof beyond a reasonable doubt and the normal lawsuit standard in which a lawyer must show that it is more likely than not that the defendant committed the misconduct. The “clear and convincing” standard requires more proof and effectively leaves the ultimate decision in the hands of a judge rather than a jury.
Criminal suits are rarely filed against financial abusers because it is very difficult to prove beyond a reasonable doubt that the elder was incompetent to enter into a financial transaction or property transfer, and that the alleged perpetrator was aware of the incompetency. Prosecutors also rarely file criminal cases against health and long-term care facilities in which physical abuse or neglect of the elderly has occurred. The burden of proving criminal malice and individual responsibility beyond a reasonable doubt is usually an insurmountable one.
The civil law’s tort system has not proved effective for an elder who has been physically abused, either. Lawyers know that money damages for the victim’s pain and suffering, which is the main source of money in such cases, is not recoverable if the victim dies before the judgment is entered. It is well known that elderly victims of facility abuse (abuse in nursing or board and care homes, hospitals, etc.) often die quickly. The same sometimes applies to elderly victims who are swindled out of their homes and life savings. The depression and fear kill them.
A lawyer whose physically abused client dies before a judgment is entered usually gets no pay for the work and money invested in representing the client. Consequently, there has been little, if any, financial incentive to take cases involving physical abuse of the frail elderly. And, if the victim died before the victim’s relatives tried to hire the lawyer, there would be virtually no chance of getting a lawyer to take the case. The perpetrator has historically been better off the more frail the victim and the more severe the abuse because the victim would be more likely to die from it, causing the victim’s case for recovery of damages for pain and suffering to go up in smoke.
Another reason civil tort cases against swindlers are often unsuccessful is that the abuser can use the victim’s own money to pay for a war o litigation attrition. Abusers know the most they have to fear usually is a court order to give the money back. Until the court makes a decision that the complaint of abuse is justified, the abuser has control of the money and is free to use it as he or she wishes. Abusers typically use the victim’s own money to pay a lawyer to defend against a lawsuit. If a conservator or guardian is appointed for the victim and then hires a lawyer, any money used for litigation against the abuser means there is less money to spend on the victim’s living needs and health and custodial care.
Lawyers and conservators may face a conflict of interest in protecting elders. Since they are usually compensated according to the number of hours they spend on the case, there can be a temptation to overly work a case. On the other hand, until EADACPA was enacted, it was often inappropriate to spend a significant amount of time litigating about flagrant thefts of “small” sums. If the cost of litigation was large in comparison to the amount taken from the victim, the conservatorship court might justifiably feel that big fees were not warranted over “a tempest in a teapot,” no matter how flagrant the financial abuse. The conscientious lawyer and professional conservator would find their hands tied.
Abusers and their lawyers are aware of the financial pressures on the elder’s representatives and may take advantage of that by dragging out litigation and making the victim’s lawyers and conservators devote more of their costly time to the litigation. Such cases typically involve complex issues of competence; large numbers of witnesses with conflicting stories, including health care providers; and the need for expert witnesses on topics relating to competence and on accounting matters. Abusers are typically litigious and willing to fight long and hard, making elder abuse litigation extended and expensive litigation. Conservators and their lawyers fear that the conservatorship court will deny them compensation for days, weeks, or months worth of services and may become leery of handling conservatorships for abuse victims.
If the amount in controversy is relatively small compared to the amount of costly time the victim’s lawyer expects to devote to the litigation, the financial abuse may be settled for a mere pittance or ignored by the lawyer and conservator. Unfortunately, the money or real estate wrongfully taken from an elderly victim who has limited means, and who cannot earn money again, may be a catastrophically large loss for the victim. Further, a small settlement may condemn the elderly person to premature placement in a nursing home.
ABUSERS PAY ATTORNEY FEES
EADACPA compels the wrongdoer both to compensate the victim for the harm inflicted and, as a totally separate issue, to pay for the cost of litigation. This includes attorneys’ fees, the costs of expert witnesses such as doctors and accountants, and reasonable fees for a conservator’s services devoted to the lawsuit.
As a result, abusers have an incentive to resolve disputes promptly, avoiding continuous litigation. The victim’s lawyer also has an incentive to try to settle the case promptly, because EADACPA denies attorney’s fees to the elder’s lawyer for unnecessarily dragged out litigation.
DAMAGES AWARDED EVEN IF VICTIM DIES
Under EADACPA, perpetrators are no longer better off the frailer the victim and the harsher the abuse or neglect. Damage awards for pain and suffering up to $250,000 will now be recoverable, even if the judgment is rendered after the victim’s death, if the victim’s heirs prove by clear and convincing evidence that the abuse was intentional or reckless. If a victim of abuse dies before a lawsuit ends, the suit may be maintained by the executor or administrator, if there is one, and, if not, by those entitled to the dead person’s estate.
ACT IS A MODEL FOR OTHER STATES
As the author of the legislation, it is my hope that the Elder Abuse and Dependent Adult Civil Protection Act will be copied in other states, eventually serving as a quality control device over the furnishing of services and goods to vulnerable elders. If abusers know they must pay for the harm they inflict, they may be deterred from wrongdoing.
One way to insure that all states pass the Act would be to have the federal government require enactment of EADACPA in order for states to qualify for federal matching funds under the Medicaid program. This requirement would help to ensure that Medicaid funds are not being spent on an unacceptably low quality of care in skilled nursing facilities – a level of care that might lead to neglect or abuse of elderly patients. Knowing that EADACPA was on the books, nursing homes would be less likely to compromise on patient care.
EADACPA could also be an important quality control measure in the future for adult day care. Many senior organizations have indicated that they would like a federal reimbursement program for social model day care respite centers that can help to alleviate the tremendous stress on family caregivers. There are not enough nonprofit adult day care centers, and the few “for profit” centers that do exist often cost more than most people can afford. But there has been a concern that it might be inadvisable to create financial incentives for the creation of a for-profit day care respite center industry, because the industry might suffer from the same quality of care problems that have plagued the nursing home industry. If passed in all states, EADACPA would put that problem to rest.
SECOND LAW REFINES TEST FOR SENILITY
Swindles and physical abuse are not the only forms of abuse visited on the elderly. The inappropriate determination that an elder is incompetent, leading to the appointment of a guardian, is a loss of civil liberties from which a physically frail person might not recover. This is less likely to occur in California due to the passage of Senate Bill 730, which sets out meaningful and verifiable tests for determining competence. “The Due Process in Competence Determinations Act” (DPCDA), signed by the Govenor of California on October 14, 1995, is the product of years of work by the California Medical Association and the California State Bar Association, Estate Planning Trust and Probate Section.
The significance of the DPCDA, however, goes beyond the fight against inappropriate guardianships or improper determinations of incompetence. In establishing a methodology for laymen and professionals alike to determine competence, DPCDA will be a critical tool in prosecutions and lawsuits against financial and physical abusers of mentally impaired elders and dependent adults.
The DPCDA fights against inappropriate deprivation of elders’ civil liberties in hasty decisions for guardianship by proclaiming that no longer shall “the mere diagnosis of a mental or physical disorder [e.g., “senility”] … be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.” Instead, under the DPCDA, courts will be obliged to base both a determination of incapacity (sometimes called “incompetence”) and an appointment of a guardian on evidence of objectively ascertainable or measurable [and] specific mental function impairments.
To deter courts from focusing on mere idiosyncrasies, the DPCDA says that mental function impairments or deficits may be considered only if they significantly impair the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.
Thus, for example, the mere fact that an elder has occasional forgetfulness does not make the elder incompetent to give or refuse consent to medical treatment. if the elder demonstrates that he or she is in fact able to understand and appreciate medical information and is able to respond rationally to it, the elder is competent to consent to that treatment despite occasional memory lapses.
The Act provides a general definition of the minim standards for competence. Under the Act, “except where otherwise provided by law, a person is not competent to make a decision unless the person has the ability to: communicate the decision, and understand and appreciate, to the extent relevant:
* the rights, duties and responsibilities created by or affected by the decision,
* the probable consequences for the decisionmaker and the persons affected by the decision, and
* the significant risks, benefits and reasonable alternatives involved in the decision.
As an example of linking competence to the specific act or decision in question, the Act provides a definition of the capacity to give informed consent to medical treatment. The Act says that a person has that capacity if he or she is able to:
* Respond knowingly and intelligently to queries about that medical treatment;
* Participate in that treatment decision by means of a rational thought process; and
* Understand and appreciate all of the following items of minimum basic medical treatment:
* The nature and seriousness of the illness, disorder or defect that the person has;
* The nature of the medical treatment that is being recommended by the person’s health care providers;
* The probable degree and duration of any benefits and risks of the medical intervention that is being recommended and the consequences of lack of treatment; and
* The nature, risks and benefits of any reasonable alternatives.
The DPCDA sets out a list of mental functions that can impact on legal capacity. Any determination of incapacity must be based on a deficit in one or more of these functions that is so severe that it renders the person unable to understand the decision he’s called upon to make.
Alertness and attention, including level of arousal or consciousness; orientation to time, place, person, and situation; and ability to attend and concentrate.
Information processing, including short- and long-term memory; ability to understand or communicate with others verbally or otherwise; recognition of objects and familiar persons; ability to understand and appreciate quantities; ability to reason, using abstract concepts; and ability to plan, organize and carry out actions in one’s own rational self-interest; and ability to reason logically.
Thought processes. Deficits in these functions may be demonstrated by the presence of the following: Severely disorganized thinking, hallucinations, delusions; and uncontrollable repetitive or intrusive thoughts.
Ability to modulate mood and affect. “Deficits in this ability may be demonstrated by the presence of a pervasive and persistent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, which is inappropriate in degree to the individual’s circumstances.”
Under the DPCDA, it will no longer be possible for guardianships or conservatorships to be inappropriately established simply on the basis of a bland medical opinion that an elder behaving in an uncommon way is “incompetent in my medical opinion.” Instead, commented California Medical Association attorney Alice Mead, “The [DPCDA] requires judges (and therefore physicians) to base a determination of a person’s mental incapacity on evidence of specific functional impairments, rather than a general and conclusive diagnosis. Although it might require a bit more effort on a testifying or examining physician’s part, providing such evidence to a court will no doubt greatly increase the quality and accuracy of such adjudications.”
LEGAL STANDARDS FOR COMPETENCE
In elder abuse and neglect cases, criminal suits have rarely been practical despite the best efforts of police and prosecutors because of the difficulty of proving beyond a reasonable doubt both:
* The evil act (e.g., the taking of property without the elder’s competent consent; or battery or neglect of the elder’s nutrition, etc.,) and
* Knowledge on the part of the defendant/culprit that the elder was not competent to consent to the act in question.
The law’s standards for determining who is competent have been either so vague or buried in obscure case law that even experts cannot agree in many cases. If a court later determines that the senior lacked capacity for the legal purpose in question (e.g., a gift of a home to a con artist), it is very difficult for the prosecutor to show beyond a reasonable doubt that the abuser knew or should have known that.
The “moment of lucidity” defense frequently raises its head creating a reasonable doubt. In other words, the defendant claims that the incompetent victim had a “moment of lucidity” when the victim was competent to make a gift. It is very difficult to prove that this allegation is false. If the jury has a reasonable doubt about the abuser’s guilt, the abuser must be allowed to go free.
Civil lawsuits against abusers for damages or for injunctions or court orders, (e.g., to raise staffing levels in a nursing home, or to stay away from a victim) are difficult even under EADACPA. EADACPA requires that the person suing the abuser prove by clear and convincing evidence that the victim was no competent to consent to the abuse, and that the abuser knew that or should have known it. As might be expected, abusers raise the same defenses in lawsuits that they raise in criminal prosecutions. A defendant will claim, “He was competent to give me his house (in gratitude for two or three weeks of work).” Or the defendant may say, “How was I supposed to know that he was incompetent? Neither the judge nor any of the lawyers knew the tests for incompetence defined in the case law without doing a lot of legal research, and even the psychiatrists disagreed among themselves!”
A fundamental purpose of the DPCDA is to make it harder for a con artist to claim that he or she had no way of knowing that the victim was not competent to make a gift or to consent to the taking of his or her property. (“She was competent to make up her own mind! I didn’t ask her to sign her new will and trust leaving everything to me. I had nothing to do with it. Anyway, she was perfectly competent to resist any influence from me!”) Also, under the DPCDA, it will be more difficult for people guilty of physical neglect to contend convincingly that the incompetent victim “simply refused any food or drink I gave her. She refused to let me clean her bedsores or turn her over. What was I to do?” The DPCDA, conceived and drafted in large part by the author of this article, gives both the prosecutor and the civil tort plaintiff tools to combat this type of misuse of the legal system.
The DPCDA also makes it harder for an abuser to claim that he or she was not on notice that major obvious impairments in the listed mental functions might have rendered the victim incompetent to consent to the abuse. A mental function checklist often used in California guardianship proceedings appears on page 71, and may be used as a reference when considering a person’s competence.
In summary, by directing the attention of laymen, psychiatrists, lawyers and judges to the list of measurable mental functions discussed above, which everyone can observe and notice, the DPCDA makes it much easier for courts and juries to know whether a person is able to understand the critical information relevant to the type of competence in question, and harder for an abuser to say “I had no idea that the victim was incompetent to consent to the gift.”
RELATED ARTICLE: Renter Ends Up With Part of Woman Estate
In Southern California, a middle-aged bachelor rented a room from an elderly woman who was suffering from early dementia. Because she was lonely and confused, she readily accepted him as a friend and welcomed his assistance in helping with paying bills and handling her affairs, Soon he obtained a durable power of attorney from her, converted her savings and checking accounts to joint accounts with his name on them, and got a new will drafted in his favor.
After he assured her out-of-state relatives that he would take care of her, he began to “forget” to give her medication, and of course he couldn’t force her to eat if she didn’t want to. She quickly developed severe malnutrition and other ailments and nearly died from them. If she had, her will would have left everything to him.
When the family tried to get a nonprofit organization appointed as conservator, the abuser waged an unsuccessful but costly war to get himself appointed as conservator instead. He later fought an expensive and drawn out battle with the organization that became the conservator when it tried to get control over the woman’s assets and to provide her with good medical and custodial care. When she died, he filed a will contest against her real heirs and settled for a significant share of her estate.
An attorney with his own firm in Los Angeles, Marc Hankin began championing the rights of the vulnerable elderly after his late father was diagnosed with Alzheimer’s disease in 1977. Hankin drafted “The California Spousal Protection Against High Cost of Long-Term Care” bill, which became a state law and served as a model for a similar federal law passed in 1990. He is also the author of the “Elder Abuse and Dependent Adult Civil Protection Act,” and principal author of the “Due Process in Competence Determinations Act,” which are the subjects of this article.
COPYRIGHT 1996 U.S. Government Printing Office
COPYRIGHT 2008 Gale, Cengage Learning