In last week’s blog, we presented examples of legal difficulties that can occur as a result of the aging process in the hope this it becomes apparent that any attempt to deal with problems, after they occur, is difficult and generally unsatisfactory. The keys are awareness, prevention and planning to avoid the kinds of circumstances where elder financial abuse occurs. In this follow up article, we offer suggestions for prevention following by an overview of the legal rights of adults over the age of 60. . If you know an older adult, share this blog post with him or her. Do what you can to help neighbors, friends and relatives become aware.
Avoid Becoming Isolated
A common element in all of the cases we see is that the older person became isolated. Being disconnected from neighbors, friends and family members is often by choice, and may be unavoidable. As people grow old their natural inclination is for independence. Many avoid discussing their futures, hoping all will turn out okay. No one wants to place his or her affairs under the control of others, even well- meaning family members or trusted advisors. But without some significant prior planning, this can be a formula for disaster, particularly with the rise in elder financial abuse in the U.S. No matter how self-sufficient one feels, it should be realized that isolation can lead to depression, loss of interest, or irrational fears and behavior. Loss of energy, declining health, debilitating illness, injury or dementia can put anyone in a vulnerable position, regardless of financial condition. The best protection is through staying connected to relatives and friend and being involved in an active social life. Loved ones, friends and neighbors should not older adults to become isolated and alone, and easy prey for elder abuse.
Be Prepared and Proactive
Wills, powers of attorney and advanced directives should be put in place before the need arises. Family members, counselors and legal advisors should be made aware of one’s wishes concerning care, treatment and the disposition of personal assets before there is reason to question someone’s judgment or competence.
Become Informed and Seek Help from Available Resources
There are numerous agencies nationwide that were put in place to deal with elder abuse, neglect and fraud. Use the internet. There are plenty of websites established by government and private agencies for the care and protection of the older adult. For example, The U.S. Administration on Aging has a website which provides information concerning how older Americans can protect themselves from consumer fraud and scams directed toward older adults. Its Eldercare Locator website provides hotlines where suspected elder abuse may be reported, with directions and easy access to places where help may be found in the local community.
Texas Adult Protective Services (APS) has as its mission, “to protect older adults and persons with disabilities from abuse, neglect and exploitation by investigating and providing or arranging for services, if needed, to stop or prevent further harm.” Its website provides abuse hotlines where suspected mistreatment of any kind can be reported. Acting on tips and complaints, APS reportedly completed 87,744 investigations in homes and care facilities in Texas during 2011. The Texas Department of Family and Protective Services, of which APS is a part, provides resource rooms which provide basic necessities and emergency supplies to older persons who are victims of abuse or neglect. It also provides educational programs and resources to broaden public awareness of the problems facing older Americans, new solutions being proposed and links to other helpful resources and agencies.
In case of emergency or life threatening situations help can be obtained from emergency responders by dialing 911. Local law enforcement agencies also investigate and prosecute cases of elder abuse, particularly when sexual abuse or assault is involved.
Texas has a Long Term Care Ombudsman Program which investigates complaints concerning nursing homes, care facilities and professional home care providers. This program operates through the Texas Department of Aging and Disability Services and has its own website. Abuse of a patient in a nursing home or care facility or committed by a home health provider may also be reported to the Texas Department of State Health Services. The list of potential sources of help goes on and on.
Prevent Elder Financial Abuse – Know Your Rights
Presented here is a brief overview of the extensive regulatory scheme for dealing with elder abuse and other problems of aging in Texas. This is not a comprehensive discussion, merely a summary. Fortunately, information and assistance is readily available through numerous state agencies that can be found on the internet or in the phone books.
Texas State Law
Texas citizens 60 or older are provided special protections by law. In the Texas Human Resources Code, there is a statute which protects an elderly individual’s right to make his own choices with respect to his personal affairs, care, benefits and services; the right to be free from abuse, neglect and exploitation; and if protective measures are required, has the right to designate a guardian or representative to insure the right to quality stewardship of his affairs.
The list of specific rights provided by this legislation is extensive, and includes the right to complain about one’s care and treatment without incurring discrimination or punitive responses; the right to privacy while attending to personal needs or receiving visitors; the right to manage one’s own personal financial affairs or to authorize another to do so; and the right to refuse medical treatment. The statute also provides certain protections against transfer or discharge of an elderly patient.
Elder Rights in Licensed Assisted Living Facilities
Another section of this same Texas Human Resources Code provides a comprehensive regulatory scheme covering licensed assisted living facilities in Texas, to assure that they provide the highest level of care. Included are the following rights: resident independence and self-determination, humane treatment, conservative intervention, access to care, continuity of care, coordination of services, safe surroundings, professionalism of service providers, participation in useful studies and quality of life.
This regulatory scheme provides for both a Resident’s Bill of Rights and a Provider’s Bill of Rights. Much like the protections provided by the aforementioned section, the provisions of this Resident’s Bill of Rights provide for protection of the rights of a resident in an assisted living facility to manage his own financial affairs, to send and receive unopened mail, to reasonable access to a telephone, to privacy, to unrestricted communication, to present grievances, to temporarily or permanently leave the facility, to a safe and decent living environment, to considerate and respectful care, and in general, not to be deprived of any constitutional or civil rights.
Allegations of Abuse and Exploitation are Investigated
Another section of the Human Resources Code provides for the investigation of allegations of abuse, neglect or exploitation of elderly persons by the state Department of Protective and Regulatory Services, and for the provision of protective services to those elderly victims, where appropriate. Protective services means services furnished by the department or by a protective services agency to an elderly or disabled person who has been determined to be in a state of abuse, neglect or exploitation, or to a relative or caretaker of an elderly or disabled person, if the department determines the services are necessary to prevent the elderly or disabled person from returning to a state of abuse, neglect or exploitation. Exploitation is defined to mean the illegal or improper act or process of a caretaker, family member or other individual who has an ongoing relationship with an elderly or disabled person that involves using, or attempting to use, the resources of the elderly or disabled person such as the person’s social security number or other identifying information, for monetary or personal benefit, profit or gain without informed consent.
Guidelines for Reporting Mistreatment
Another section of the Human Resources Code requires any person having cause to believe that an elderly person is in a state of abuse, neglect or exploitation should make a report to the Department of Protective and Regulatory Services, and in some cases, to the state agency as well. This duty applies even if such knowledge is obtained through confidential communications. It is a crime to knowingly fail to report elder abuse, neglect or exploitation. In certain cases, failure to report becomes a state jail felony. However, the code provides immunity from civil or criminal liability to any person filing a report, testifying or participating in any judicial proceeding arising from a report, unless the person acted in bad faith or with a malicious purpose.
Summary
It is important to recognize that the abuse of older adults is on the rise. The keys to deterrence are awareness, prevention and planning to avoid the kinds of circumstances where elder financial abuse occurs. In this article, we offered suggestions for prevention including the avoidance of becoming isolated, being prepared instead of ignoring the future, becoming informed, seeking help from the numerous agencies and organizations ready to help, and knowing one’s rights. If you know an older adult, share this blog post with him or her. Do what you can to help neighbors, friends and relatives become aware.