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HONOR THY MOTHER AND FATHER:
PREVENTING ELDER ABUSE THROUGH
EDUCATION AND LITIGATION
Sande L. Buhai* and James W. Gilliam, Jr.**
The elderly comprise one of the fastest growing groups in the
United States.1 Yet, problems involving abuse of the elderly have
long been ignored.2 Even when addressed, dealing with elder abuse
brings its own unique set of problems.3 Most importantly, the law
has the delicate task of balancing the protection of elderly persons
while still respecting their personal autonomy.4 That is, although we
desire to prevent elder abuse, we must be careful not to assume that
* Clinical Professor of Law, Loyola Law School. I would like to thank
the firm of Wilkes & McHugh and especially Stephen Garcia for their support
of the Elder Abuse Symposium. I would also like to thank the staff and editors
of the Loyola of Los Angeles Law Review for their hard work on this
Symposium. Finally, I would like to honor my parents, Marvin and Lorraine
Buhai, for their lifelong support.
** Candidate, J.D., Loyola Law School, May, 2003; B.S., Middle
Tennessee State University, 2000; Chief Symposium Editor, Loyola of Los
Angeles Law Review, 2002–2003; Extern, The Honorable Harry Pregerson,
United States Court of Appeals for the Ninth Circuit, Fall 2002. Special thanks
are owed to Dr. Maria Clayton, Middle Tennessee State University, for firstrecognizing my writing ability and for teaching me how to develop it further; I
will always be in her debt. I would also like to thank my loving partner,
Kelvin Lamont Walker, for his unending support of my academic endeavors.
Finally, I dedicate my participation in this Symposium to my mother who wastaken from my life far too soon, but is never far from my heart.
1. See Seymour Moskowitz, Golden Age in the Golden State:
Contemporary Legal Developments in Elder Abuse and Neglect, 36 LOY. L.A.
L. REV. 589 (2003).
2. See Martin Ramey, Comment, Putting the Cart Before the Horse: The
Need to Re-examine Damage Caps in California’s Elder Abuse Act, 39 SAN
DIEGO L. REV. 599, 602 (2002) (“[S]even out of every eight instances of[elder] abuse are never reported.”).
3. See Moskowitz, supra note 1, at 590–96.
4. See Kurt Eggert, Lashed to the Mast and Crying for HELP: How Self-
Limitation of Autonomy Can Protect Elders from Predatory Lending, 36 LOY.
L.A. L. REV. 693 (2003).
565
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the elderly are incompetent. Other problems involve dealing with
the severe impact of financial abuse5 and physical abuse.6 A senior’s
age, health, and limited finances make it difficult for him or her to
fully recover from these types of abuse.7 Finally, the most recent
General Accounting Office report shows significant problems in
almost one-third of all California nursing homes.8
To address these difficult issues and to examine how the legal
system can help resolve these problems, Loyola Law School held a
Symposium on April 26, 2002, entitled Honor Thy Mother and
Father: Symposium on the Legal Aspects of Elder Abuse.9 The
Symposium focused on two approaches—academic and litigation—
to solving the serious problem of elder abuse in our society. The first
half of the Symposium consisted of three academic presentations
discussing various aspects of elder abuse. In Part I of this Article,
we provide a basic roadmap of these articles by Professor Seymour
Moskowitz, Jeanne Finberg, and Professor Kurt Eggert.
The second half of the Symposium consisted of a panel
discussion highlighting the cutting-edge issues in the litigation of
elder abuse cases against skilled nursing facilities (i.e., nursing
homes). Part II of this Article will attempt to summarize and explain
some of those issues.
I. ROADMAP
In the comprehensive lead article, Golden Age in the Golden
State: Contemporary Legal Developments in Elder Abuse and
Neglect, Professor Seymour Moskowitz begins his discussion by
5. See Jeanne Finberg, Financial Abuse of the Elderly in California, 36
LOY. L.A. L. REV. 667 (2003).
6. See Moskowitz, supra note 1, at 603-04.
7. See id.
8. See id. at 594.
9. Indeed, the federal government’s recent creation of “Nursing HomeCompare” in November, 2002—a Web site designed to provide individualswith “detailed information about the past performance” of all Medicare and
Medicaid certified nursing homes in the United States—illustrates further thetimeliness and importance of our Symposium. Nursing Home Compare, at
http://www.medicare.gov/NHCompare/home.asp (last visited Dec. 29, 2002)
(providing information on such topics as the percentage of residents withphysical restraints, the percentage of residents with bed sores, deficiencies
found during annual inspections and complaint investigations, and staffinglevels).
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defining the main types of elder abuse and by illustrating its
prevalence throughout the nation and in California.10 In defining the
various types of elder abuse, Professor Moskowitz explains that
conduct is labeled as abusive depending on its duration, intensity,
and severity.11
He continues by considering the legal remedies available to the
elderly in tort law.12 Tort law provides relief for elder abuse through
some traditional means, including civil battery, negligence,
conversion, or fraud suits.13
Professor Moskowitz also discusses the civil litigation remedies
for nursing care abuse.14 In California, the Elder Abuse and
Dependent Adult Civil Protection Act (the EADACPA or “Elder
Abuse Act”) supplements tort remedies.15
Finally, Professor Moskowitz discusses the most promising
current legal developments and issues in elder abuse.16 Developing
responses to elder abuse in nursing homes include criminal
background checks of nursing home staff, video cameras in nursing
homes to deter mistreatment, and minimum staffing ratios for
nursing homes.17 In conclusion, Professor Moskowitz doubts the
ability of the law, in and of itself, to enact major social change in the
area of elder abuse, but he is optimistic that the combination of elder
abuse law, public awareness, additional research, and other
regulations could substantially reduce the incidence of elder abuse.18
In Financial Abuse of the Elderly in California, Jeanne Finberg
focuses particularly on the financial abuse of the elderly, as opposed
to physical abuse.19 In doing so, she surveys some of the most
common types of financial abuse. Ms. Finberg suggests that the best
ways to prevent the financial abuse of the elderly are to educate the
10. See Moskowitz, supra note 1, at 596–603.
11. See id at 597.
12. See id. at 604–31.
13. See id.
14. See id.
15. See CAL. WELF. & INST. CODE §§ 15600–15675 (West 2001).
16. See Moskowitz, supra note 1, at 637–64.
17. See id.
18. See id. at 665.
19. See Finberg, supra note 5.
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public and elders about long-term care and estate planning, and to
ensure that consumer laws are available for private enforcement.20
Finally, Professor Kurt Eggert contributed an article entitled,
Lashed to the Mast and Crying for HELP: How Self-Limitation of
Autonomy Can Protect Elders from Predatory Lending.21 Professor
Eggert’s article focuses on protecting elders from financial abuse,
while at the same time not sacrificing their autonomy by
overprotecting them. Professor Eggert focuses on predatory lending
in the context of the broader issue, balancing the autonomy of
persons who are elderly with protecting their rights and interests.
Professor Eggert argues that the autonomy of an elderly homeowner
is not determined solely by the freedom to enter into any loan he or
she may desire.22 In fact, avoiding the loss and humiliation
associated with predatory lending may actually increase autonomy.23
In a novel approach, Professor Eggert analogizes his predatory
lending solution to similar steps taken in the area of gambling.24
As these articles illustrate, elder abuse in our society is a serious
and growing problem—be it physical or financial. These three
articles address the problem in different ways: from a broad
perspective of the entire issue of elder abuse to a narrow focus on a
particular problem with a new and intriguing solution.
II. ELDER ABUSE LITIGATION
The following discussion illustrates some of the basic concerns25
that are pertinent to each particular side—be it the plaintiff or the
defense—in an elder abuse lawsuit, particularly in California.
Understanding how these types of lawsuits typically progress is
important, because as Professor Moskowitz points out, there are
many Americans who live in nursing homes.26 The following
discussion also highlights those areas of the law that are often in
question in elder abuse lawsuits, as discussed by the afternoon
20. See id. at 690–91.
21. See Eggert, supra note 4.
22. See id.
23. See id.
24. See id.
25. This Article only addresses select issues arising in elder abuse
litigation. There are certainly other issues, some raised by the panel, that are
not covered by this Article.
26. See Moskowitz, supra note 1, at 593–94.
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panelists,27 thereby providing the reader with an overview of some of
the most important issues to consider when preparing for an elder
abuse lawsuit. Finally, in considering bringing an elder abuse
lawsuit, it is interesting to note that the vast majority of verdicts in
elder abuse lawsuits are in favor of the defense.28
A. Background
California’s Elder Abuse Act29 was passed to protect the
particularly “vulnerable” elderly and those members of society who
rely on others for their daily care.30 The statute defines elder abuse,31
establishes a procedure for reporting such abuse,32 requires
fingerprinting of caregivers,33 and finally, provides for additional
remedies when elder abuse is proved by clear and convincing
evidence.34
The legislative intent included in the Act contains some of the
clearest language ever written by the California legislature,35
27. The panelists for the afternoon session consisted of the Honorable
Judge Carl West of the Los Angeles Superior Court, Mr. Stephen Garcia of thefirm of Wilkes & McHugh, and Mr. Rick Canvel of the firm of LaFollette,
Johnson, De Haas, Fesler & Ames.
28. See Moskowitz, supra note 1, at 630–31. However, those verdicts that
are in favor of plaintiffs are more likely to be publicized because of their highdollar amounts, thereby skewing the public perception about the typical resultof an elder abuse lawsuit. See, e.g., Estate of Woman Who Died of Untreated
Peritonitis Wins $5.2M Verdict, NURSING HOME LITIG. REP. 3:15, May 4,
2001, at 4 (discussing the $5.2 million verdict awarded “to the children of awoman who died after being released from a nursing home where she
developed an abdominal infection that went untreated”); Extendicare Settles
Florida Elder Abuse Case, NURSING HOME LITIG. REP. 3:9, Feb. 9, 2001, at 11
(reporting Extendicare’s ceasing of all nursing home operations in Florida after
settling a case that had resulted in a $20 million verdict); Trial Judge Affirms
$78 Million Verdict in Elder Abuse Case, NURSING HOME LITIG. REP. 3:23,
Aug. 24, 2001, at 3 (stating that an Arkansas judge “declined to overturn or
reduce a $78.43 million jury verdict awarded in a case against the nursinghome . . . ”).
29. CAL. WELF. & INST. CODE §§ 15600–15675 (West 2001).
30. See id. § 15600(d).
31. See id. § 15610.07.
32. See id. §§ 15630–15634.
33. See id. § 15660(1).
34. See id. § 15657.
35. See id. § 15600(a) (“[E]lders and dependent adults may be subjected toabuse, neglect, or abandonment and . . . this state has a responsibility to protect
these persons.”).
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explicitly recognizing its duty to protect elderly persons and
dependent adults.36 Further, the Act was designed to motivate
lawyers to take these types of cases.37 Previously, the unavailability
of non-economic damages such as pain and suffering once a patient
died38 made attorneys apprehensive about taking these cases, fearful
that the patient would die during the course of the litigation.39 The
Elder Abuse Act modifies this typical arrangement, thereby allowing
a decedent’s family to pursue pain and suffering damages up to
$250,000.40
Indeed, if it were not for the generous provisions of the Elder
Abuse Act, such as the availability of attorney’s fees41 and punitive
damages42 for successful suits, it would be considerably more
difficult to get many viable elder abuse cases litigated.43
To get the enhanced remedy of punitive damages under the Act,
the plaintiff must prove by clear and convincing evidence that the
defendant either fraudulently, maliciously, or oppressively
36. See id.
37. See id. § 15600(h) (“[F]ew civil cases are brought in connection with
this abuse due to . . . lack of incentives to prosecute these suits.”); see also id. §
15600(j) (“It is the further intent of the Legislature in adding [the attorney’s
fees provision] to enable interested persons to engage attorneys to take up thecause of abused elderly persons and dependent adults.”).
38. See CAL. CIV. PROC. CODE § 377.34 (West 1982); see also County of
Los Angeles v. Superior Court, 21 Cal. 4th 292, 295, 981 P.2d 68, 69–70, 87
Cal. Rptr. 2d 441, 443 (1999) (“When, as here, a plaintiff dies while a personalinjury action is pending . . . ‘the damages recoverable are limited to the loss or
damage that the decedent sustained or incurred before death, . . . and do not
include damages for pain, suffering, or disfigurement.’”).
39. This is particularly a problem because most of these cases are taken on
a contingency fee basis where the lawyers must pay litigation costs in advanceand cannot recover any fees if the patient dies.
40. See CAL. WELF. & INST. CODE § 15657(b) (West 2001). But see
Ramey, supra note 2, at 605 (critiquing the low amount of damages allowedand arguing that reform of the Elder Abuse Act is “long overdue”).
41. See CAL. WELF. & INST. CODE § 15657(a) (“The court shall award to
the plaintiff reasonable attorney’s fees and costs.”).
42. Compare id. § 15657 (allowing the imposition of punitive damages
upon meeting the required standard of proof), with CAL. CIV. PROC. CODE §
425.13 (West Supp. 2002) (precluding the imposition of punitive damages for
claims based on professional negligence).
43. Indeed, the California legislature recognized this when enacting thestatute, stating that “few civil cases are brought in connection with this abuse
due to problems of proof, court delays, and the lack of incentives to prosecute
these suits.” CAL. WELF. & INST. CODE § 15600(h) (West 2001).
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disregarded the patient’s care.44 This is also the standard typically
required under the California Civil Code for the imposition of
punitive damages.45 Therefore, because the standard is the same,
satisfying the punitive damages provision under the Act is not
usually an issue in elder abuse lawsuits .46
Plaintiff’s counsel specializing in elder abuse lawsuits focus on
proving the guilt of the corporate entity running the skilled nursing
facilities.47 It is important to stress the case as elder abuse, which is
defined as “a pattern of conscious disregard of a known peril” by the
corporation—the “ongoing criminal enterprise”—that owns the
skilled nursing facility.48 The plaintiff frames the issue as a
determination of whether the harmful course of conduct at issue
occurred because earlier violations and incidents, often caused by
chronic understaffing, were not rectified by the corporation.49
On the other hand, defense counsel approaches elder abuse
litigation from a different, narrower perspective. The defense frames
the issue as whether an injury occurred to this particular plaintiff on a
specific day, and whether it was caused by something that the facility
did on that day.50
Many of the most important underlying issues involved in elder
abuse lawsuits remain unresolved. Because there are no clear
44. See id. § 15657; Delaney v. Baker, 20 Cal. 4th 23, 31, 971 P.2d 986,990, 82 Cal. Rptr. 2d 610, 614 (1999).
45. See CAL. CIV. CODE § 3294 (West 1997).
46. Compare CAL. WELF. & INST. CODE § 15657 (allowing the impositionof punitive damages upon proving abuse by clear and convincing evidence)
with CAL. CIV. CODE § 3294 (allowing punitive damages for clear and
convincing evidence of oppression, fraud, or malice).
47. Indeed, “[i]t is the plaintiff’s attorney’s responsibility to identify
injuries and incidents that are the result of chronic institutional neglect.” Susan
N. Childers, Plaintiff’s Perspective: Pre-Suit Considerations in Nursing Home
Litigation, ARK. LAW., Summer 2001, at 13.
48. Stephen Garcia, Presentation at Honor Thy Mother and Father: A
Symposium on the Legal Aspects of Elder Abuse at Loyola Law School (Apr.
29, 2002) (transcript on file with Loyola of Los Angeles Law Review); see also
Moskowitz, supra note 1, at 626 (“In 1999–2000, fifty-five percent of the
nursing facilities in the United States were owned or operated by nationalchains” and “[s]ixty-seven percent of all facilities were for-profit . . . .”).
49. See Garcia, supra note 48.
50. See Rick Canvel, Presentation at Honor Thy Mother and Father: A
Symposium on the Legal Aspects of Elder Abuse at Loyola Law School (Apr.
29, 2002) (transcript on file with Loyola of Los Angeles Law Review).
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answers to these questions, this Article does not attempt to predict
how the courts will rule on such issues in future lawsuits. Rather, it
is the authors’ hope that attorneys on both sides of future elder abuse
lawsuits will use this Article to better prepare themselves by having
advance knowledge about some of the issues that are likely to arise
throughout the course of the lawsuit.51
B. Issues Arising in the Pleading of Elder Abuse Cases
This Section will discuss three issues that arise in the pleading
of elder abuse cases. The first is whether elder abuse is a separate
cause of action or merely an enhanced remedy for negligence. The
second question is whether elder abuse is simply a claim for
professional negligence. The third question focuses on the issue of
chronic understaffing, discussing whether it is grounds for an action
under elder abuse or professional negligence. Finally, this Section
concludes with a discussion of the importance of these issues.
1.
Statute of limitations: is elder abuse a separate cause of action or
simply an enhanced remedy?
If elder abuse is considered a separate cause of action, the statute
of limitations for the claim stretches from one year to three years.52
The argument supporting elder abuse as a separate cause of action
relies on Delaney v. Baker,53 a recent California Supreme Court case.
In Delaney, the surviving daughter of an eighty-eight-year-old
woman who died after being placed in the facility for a broken ankle
sued the nursing home.54 The woman had been “left lying in her
51. In fact, an attorney who practices in the area of elder abuse has
suggested that it will take the “members of the private bar” to make a
difference in the “epidemic of elder abuse in the State of California.” Kevin P.
Kane, Selecting a Nursing Home: Elder Abuse Detection and Prevention,
ORANGE COUNTY LAW., Aug. 2002, at 15, 23.
52. See CAL. CIV. PROC. CODE § 340(3) (West 1982) (stating that the statute
of limitations for wrongful death is one year); id. § 338 (stating that the statuteof limitations for statutorily created causes of action is three years).
53. 20 Cal. 4th 23, 32, 971 P.2d 986, 991, 82 Cal. Rptr. 2d 610, 615 (1999)
(accepting amici curiae’s position that “causes of actions within the scope of
section 15657 [Elder Abuse Act] are not ‘cause[s] of action . . . based on . . .
professional negligence’ within the meaning of section 15657.2 [professionalnegligence].”) (alterations in original).
54. See id. at 27, 971 P.2d at 988, 82 Cal. Rptr. 2d at 612.
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own urine and feces for extended periods of time.”55 The court
explicitly recognized that “rapid turnover of nursing staff, staffing
shortages, and the inadequate training of employees” resulted in the
neglect.56 The court held that this conduct gave rise to a claim for
elder abuse, aside from any claim for professional negligence.57
On the other hand, if claims for elder abuse are basic negligence
claims, the statute of limitations remains the usual one-year limit for
torts.58 In Community Care and Rehabilitation Center v. Superior
Court,59 the California Court of Appeal, post-Delaney, seems to have
held that the remedies available under the Elder Abuse Act are “an
additional remedy not available in other tort actions,”60 rather than a
separate cause of action. In Community Care, a surviving spouse
brought suit against a nursing home after his wife died in the facility
as a result of a hip replacement surgery.61 The court held that the
spouse could possibly recover punitive damages against the nursing
home under the Elder Abuse Act, “even in the context of
professional medical malfeasance,” but it did not use language that
indicated whether pursuing an elder abuse claim would be a separate
cause of action.62
Neither the Delaney nor the Community Care decisions directly
address the issue of the applicable statute of limitations for elder
abuse claims. Therefore, this issue remains unresolved.63 If, as the
authors contend, elder abuse and professional negligence are two
separate causes of action, then each would have its own respective
statute of limitations.
55. Id.
56. Id.
57. See id. at 32–33, 971 P.2d at 991–92, 82 Cal. Rptr. at 615–16.
58. See CAL. CIV. PROC. CODE § 340(3) (West 1982 & Supp. 2002);
Canvel, supra note 50.
59. 79 Cal. App. 4th 787, 94 Cal. Rptr. 2d 343 (Cal. Ct. App. 2000).
60. Id. at 792, 94 Cal. Rptr. 2d at 346 (emphasis added) (suggesting that
elder abuse is a tort rather than a statutorily-created cause of action).
61. See id.
62. Id. at 797, 94 Cal. Rptr. 2d at 350.
63. However, refer to the discussion below concerning whether a claim for
elder abuse is the same as a claim for professional negligence.
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2.
Pleading elder abuse or professional negligence: standard of care
and burden of proof
The second issue—whether to pursue a lawsuit as a professional
negligence case64 or an elder abuse case—can be difficult because
“some health care institutions, such as nursing homes, perform
custodial functions and provide professional medical care.”65
Indeed, this decision can have a dramatic impact on the course of the
litigation.
Perhaps the most important difference that arises when the case
is pled as a professional negligence case rather than elder abuse is the
standard of care that must be shown to constitute negligence. In a
professional negligence case, the standard of care required of the
defendant is to exercise “‘the knowledge, skill and care ordinarily
possessed and employed by members of the profession in good
standing.’”66 Further, this standard can only be established by expert
testimony.67 In an elder abuse case, the plaintiff must show
“reckless, oppressive, fraudulent, or malicious conduct”68 in the
provision or lack of provision of services, regardless of how others in
the community operate. The applicable standard of care is that of a
reasonable person in similar circumstances.69
64. See CAL. CIV. CODE § 3333.2 (West 1997). Section 3333.2 defines
professional negligence as:
[A] negligent act or omission to act by a health care provider in therendering of professional services, which act or omission is the
proximate cause of a personal injury or wrongful death, provided thatsuch services are within the scope of services for which the provider is
licensed and which are not within any restriction imposed by thelicensing agency or licensed hospital.
Id.
65. Delaney, 20 Cal. 4th at 34, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617
(emphasis added).
66. Id. at 31, 971 P.2d at 991, 82 Cal. Rptr. 2d at 615 (quoting Flowers v.
Torrance Mem’l Hosp. Med. Ctr., 8 Cal. 4th 992, 997–98, 884 P.2d 142, 145–
46, 35 Cal. Rptr. 2d 685, 688–89 (1994)).
67. See Howard v. Owens Corning, 72 Cal. App. 4th 621, 632, 85 Cal.
Rptr. 2d 386, 394 (Cal. Ct. App. 1999) (stating that the standard of care inprofessional negligence cases must be established by expert testimony).
68. Delaney, 20 Cal. 4th at 32, 971 P.2d at 991, 82 Cal. Rptr. 2d at 615.
69. See id. at 32 n.5, 971 P.2d at 991 n.5, 82 Cal. Rptr. 2d at 615 n.5.
Reckless means that a person is aware of and consciously disregards a
substantial and unjustifiable risk that his or her act will cause injury.
The risk shall be of such nature and degree that disregard thereof
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Additionally, the burden of proof is higher under the Elder
Abuse Act than in a professional negligence case. To recover under
the Elder Abuse Act, the plaintiffs must prove their case with “clear
and convincing evidence.”70 Because the professional negligence
statute does not specify a particular burden of proof, it is the more
lenient standard of “preponderance of the evidence,” as is the typical
standard in most civil lawsuits.71
Finally, if elder abuse is pled as a form of professional
negligence, the case may be subjected to the limitations provided by
the Medical Injury Compensation Reform Act (MICRA) statutes.72
MICRA was passed in response to the rapidly rising costs of medical
malpractice insurance in the 1970s out of a concern for some
hospitals’ and doctors’ chances for continued viability.73 Taken
together, these statutes operate to protect medical care providers by
limiting the scope and length of viability for an injured resident’s
claim.
The defense in Delaney argued that any act taken under the
scope of licensure is professional negligence. The defense stressed
that the acts or omissions that lead to claims of elder abuse fall
within the scope of the defendants’ licensure because they occurred
constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation.
Id. (quoting from the definition of “reckless” as defined for the jury in thecase).
70. CAL. WELF. & INST. CODE § 15657 (West 2001).
71. See Stoner v. Williams, 46 Cal. App. 4th 986, 1001, 54 Cal. Rptr. 2d243, 251 (Cal. Ct. App. 1996) (“In civil cases, liability generally must beproved by a preponderance of the evidence.”).
72. MICRA “refers to several statutes that restrict or place conditions upon
causes of action and remedies directed at ‘health care providers’ for
‘professional negligence.’” Delaney, 20 Cal. 4th at 28–29 n.2, 971 P.2d at 989
n.2, 82 Cal. Rptr. 2d at 613 n.2 (quoting CAL. CIV. PROC. CODE § 364). The
statutes include CAL. CIV. PROC. CODE § 364 (West 1982) (requiring a ninety-
day notice prior to bringing a lawsuit); CAL. CIV. PROC. CODE § 667.7 (West1987) (permitting periodic payment of any judgment against the provider);
CAL. CIV. PROC. CODE § 1295 (West 1982) (requiring a certain type of noticefor providers’ mandatory arbitration provisions); CAL. BUS. & PROF. CODE §
6146 (West 1990) (providing caps on attorney contingency fees); CAL. CIV.
CODE § 3333.1 (West 1997) (making admissible evidence of workers’
compensation or disability payments); and id. § 3333.2(b) (providing a
$250,000 cap on noneconomic damages).
73. See Delaney, 20 Cal. 4th at 33–34, 971 P.2d at 992, 82 Cal. Rptr. 2d at
616.
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in the skilled nursing facility.74 However, the Delaney court
recognized that adopting such an interpretation of the elder abuse
statute would create an “anomaly”75 in that custodians who are not
also health care providers would be subjected to the heightened
remedies of the Elder Abuse Act, while those who are licensed as
health care workers would only be subjected to claims based on
professional negligence.76
Additionally, Delaney clearly articulates that there is a
distinction between custodial care and professional medical care.
Thus, under Delaney, it appears that health care workers who neglect
residents to the level that satisfies the Elder Abuse Act can be sued
outside the purview of MICRA.77 The court appears to distinguish
professional negligence on behalf of health care providers, which
should be evaluated and litigated under the professional negligence
statutes, from those violations that occur within the custodial context,
which should be evaluated under the enhanced Elder Abuse Act
provisions.78 It also explicitly recognized that “the legislative history
suggests that nursing homes and other health care providers were
among the primary targets of the Elder Abuse Act.”79
Thus, each pleading decision brings its own advantages and
disadvantages. A cause of action under the Elder Abuse Act allows
for additional damages and attorneys’ fees, yet requires the plaintiff
to meet a higher standard of care and a higher burden of proof.
Conversely, a cause of action for professional negligence has a lower
standard of care and a lower burden of proof, but provides for fewer
remedies. To best protect the interests of the elderly injured person,
as the court in Delaney recognized, there may be times when the
same act can give rise to a claim for both causes of action.80 The
example the court in Delaney used involved a patient who suffered
74. See id. at 35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
75. See id.
76. See id. at 36–37, 971 P.2d at 994–95, 82 Cal. Rptr. 2d at 618–19.
77. See id. at 34, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
78. See id. at 35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617 (“[I]f the neglect
is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then the action falls
within the scope of section 15657 [the Elder Abuse Act] and as such cannot beconsidered simply ‘based on . . . professional negligence’ within the meaning
of section 15657.2 [the professional negligence statute].”).
79. Id. at 41, 971 P.2d at 997, 82 Cal. Rptr. 2d at 621.
80. See id. at 34–35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
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from malnutrition. The court stated that failing to provide “a plan of
furnishing sufficient nutrition to someone too infirm to attend to that
need herself” could be considered professional negligence and could
also constitute neglect, thereby possibly satisfying the standard for
elder abuse.81
3.
Does chronic understaffing constitute elder abuse or professional
negligence?
Many incidents of elder abuse are often the result of
understaffing at skilled nursing facilities.82 Therefore, determining
how the courts will treat chronic staffing problems is one of the most
important questions in this area of the law.
On the one hand, recurring staffing problems appear to
constitute elder abuse, not professional negligence.83 Understaffing
often leads to a failure to provide adequate care and to abuse, and it
is the corporate entity, whose corporate scheme is based on
maximizing profit, that causes the injury, not the low-paid workers
on the floor.84 Alternatively, defense counsel might prefer that
staffing problems be seen as professional negligence because there
are procedural advantages.85 However, the California Supreme
Court stated in Delaney that insufficient staff is not professional
negligence.86
81. See id. at 34, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
82. See Kane, supra note 51, at 17 (stating that elder abuse occurs innursing homes because they are “under-regulated and under-staffed, often
sacrificing care in order to maximize profit.”); Ramey, supra note 2, at 623
(“One of the most frequently given excuses for deficiencies and abuse is thelack of adequate staffing.”); Robert Pear, U.S. Recommending Strict New Rules
at Nursing Homes, N.Y. TIMES, July 23, 2000, at 1 (“Nursing homes with alow ratio of employees to patients are ‘significantly more likely to have
quality-of-care problems’ . . . .”).
83. See Garcia, supra note 48, at 14.
84. See Childers, supra note 47, at 13–14 (“[I]t is the corporate decision
makers who set the budget and force nursing homes to operate with inadequatestaff and supplies.”).
85. As discussed above, per MICRA, the damages in a professional
negligence case are limited to $250,000. See CAL. CIV. CODE § 3333.2(b)
(West 1997). Further, collateral sources can be used. See id. § 3333.1.
86. See Delaney, 20 Cal. 4th at 41–42, 971 P.2d at 998, 82 Cal. Rptr. 2d at
622.
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C. Issues of Proof in Elder Abuse Litigation
This Section will briefly discuss three particular issues that often
arise in elder abuse litigation:87 the clear and convincing standard of
proof, corporate ratification and liability, and the use of regulations
to set forth the standard of care.
1. Clear and convincing evidence standard
Satisfying the “clear and convincing” burden is extraordinarily
difficult.88 Indeed, it often comes down to what the judge decides
when considering the evidentiary motions. For example, if plaintiffs
are allowed to bring in former employees to talk about the egregious
conduct at the facility and the facility’s knowledge and disregard of
the problems, as well as to bring in corporate executives to show
they did not care about the problems at the facility, they are more
likely to prevail.
Defense counsel could attempt to counter the proof offered by
plaintiffs to prove “clear and convincing” evidence of neglect on
behalf of the facility by focusing on the local facility level, showing
the real people who work at these facilities, as well as the conditions
in which they work.89 Ultimately, the defense tries to show the
facility as caring on as pragmatic a level as possible.90
2. Corporate ratification
Plaintiffs must prove corporate ratification of the reckless
disregard for the patient’s care to bring suit against the corporation
for punitive damages.91 Plaintiffs do this by proving that the
corporation has a continuing history of complaints and injuries
87. This Article does not attempt an exhaustive discussion of these issues.
Instead, our purpose is simply to highlight these significant topics.
88. Garcia, supra note 48, at 14; see also Ramey, supra note 2, at 605
(arguing that the Elder Abuse Act should be re-examined because the “burdenof proof is raised so high as not to deter wrongful conduct but rather tocomplicate the bringing of meritorious elder abuse actions.”).
89. See Canvel, supra note 50, at 15.
90. See id.
91. Because plaintiffs argue that it is the corporation that is liable for the
death and injuries of the residents of its facilities, not the individual employees,
the acts of the corporation must be done with “reckless, oppressive, fraudulent,
or malicious conduct.” Delaney, 20 Cal. 4th at 31, 971 P.2d at 991, 82 Cal.
Rptr. 2d at 615.
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against it, often as the result of understaffing.92 Corporations may be
viewed as reckless when their nursing homes admit more residents
than they are equipped to accommodate. This is especially true when
they make these admission decisions knowing their budgets do not
allow them to staff at appropriate levels; yet, they recklessly
disregard these facts and continue to accept new patients as long as
there is an empty bed in the facility.93 Therefore, the conduct the
plaintiff wants the jury to focus on is the acts of the corporation.94
Thus, it is crucial for the plaintiffs to be able to introduce as much
evidence as possible about what the corporation knew about the
facility and its ability to care for its residents, especially any
evidence that proves the corporation knew of chronic staffing
problems.95 The plaintiffs frame the issue as determining whether
the harmful course of conduct occurred because of all the earlier
violations and incidents, often caused by chronic understaffing, that
were not rectified by the corporation.96
Many elder abuse lawsuits are not about the people working on
the floors; rather, they are about corporations that purposely take the
highest number of the sickest patients and then staff their facilities
with the lowest number of employees possible.97
92. See supra note 82.
93. See Garcia, supra note 48.
94. See Childers, supra note 47, at 13 (“In most cases filed against nursing
homes, the defendants are not the actual caregivers hired by the facility, butrather the corporations who have failed to provide necessary and availableresources in order to prevent injuries to the residents of the nursing homes they
own.”).
95. See supra text accompanying note 84.
96. See supra note 82. During the Symposium, plaintiffs’ counsel provideda straightforward approach one can use when trying to prove corporate intent,
suggesting a few specific questions with which to begin the examination of the
witness:
1. “You are a for-profit organization are you not?”
2. “You are publicly traded are you not?”
3. “So, you have a fiduciary responsibility to make as much money as
possible for your stakeholders, do you not?”
From there, the questions should continue to focus on the corporation as a
profit maker. Garcia, supra note 48.
97. See Garcia, supra note 48.
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3. Use of regulations
An interesting question that arises in elder abuse lawsuits is
whether the regulations passed pursuant to the Elder Abuse Act can
be used to set forth the standard of care required of the skilled
nursing facility.98 The California Court of Appeal, in Estate of
98. See CAL. CODE REGS. tit. 22, § 72315 (2002). These regulations state
that:
(a) No patient shall be admitted or accepted for care by a skillednursing facility except on the order of a physician.
(b) Each patient shall be treated as individual with dignity and respectand shall not be subjected to verbal or physical abuse of any kind.
(c) Each patient, upon admission, shall be given orientation to theskilled nursing facility and the facility’s services and staff.
(d) Each patient shall be provided care which shows evidence of goodpersonal hygiene, including care of the skin, shampooing and
grooming of hair, oral hygiene, shaving or beard trimming,
cleaning and cutting of fingernails and toenails. The patient shall
be free of offensive odors.
(e) Each patient shall be encouraged and/or assisted to achieve and
maintain the highest level of self-care and independence. Every
effort shall be made to keep patients active, and out of bed forreasonable periods of time, except when contraindicated byphysician’s orders.
(f) Each patient
shall be given care to prevent formation and
progression of decubiti, contractures and deformities. Such care
shall include:
(1)
Changing position of bedfast and chairfast patients with
preventive skin care in accordance with the needs of the
patient.
(2)
Encouraging, assisting and training in self-care and activities
of daily living.
(3)
Maintaining proper body alignment and joint movement toprevent contractures and deformities.
(4)
Using pressure-reducing devices where indicated.
(5)
Providing care to maintain clean, dry skin free from feces and
urine.
(6)
Changing of linens and other items in contact with the patient,
as necessary, to maintain a clean, dry skin free from feces and
urine.
(7) Carrying out of physician’s orders for treatment of decubitis
ulcers. The facility shall notify the physician, when adecubitis ulcer first occurs, as well as when treatment is not
effective, and shall document such notification as required in
Section 72311(b).
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Gregory v. Beverly Enterprises, Inc.,99 stated that regulations cannot
be used to create a standard of care,100 but they can be used in
formulating jury instructions to “describe the care required.”101 In
(g) Each patient
requiring help in eating shall be provided with
assistance when served, and shall be provided with training or
adaptive equipment in accordance with identified needs, based
upon patient assessment, to encourage independence in eating.
(h) Each patient shall be provided with good nutrition and withnecessary fluids for hydration.
(i) Measures
shall be implemented to prevent and reduce
incontinence for each patient and shall include:
(1)
Written assessment by a licensed nurse to determine the
patient’s ability to participate in a bowel and/or bladder
management program. This is to be initiated within two
weeks after admission of an incontinent patient.
(2)
An individualized plan, in addition to the patient care plan, foreach patient in a bowel and/or bladder management program.
(3) A weekly written evaluation
in the progress notes by a
licensed nurse of the patient’s performance in the bowel
and/or bladder management program.
(j) Fluid intake and
output shall be recorded for each patient as
follows:
(1) If ordered by the physician.
(2)
For each patient with an indwelling catheter:
(A)
Intake and output records shall be evaluated at least
weekly and each evaluation shall be included in the
licensed nurses’ progress notes.
(B)
After 30 days the patient shall be reevaluated by the
licensed nurse to determine further need for the
recording of intake and output.
(k) The weight and length of each patient shall be taken and recordedin the patient’s health record upon admission, and the weight shall
be taken and recorded once a month thereafter.
(l) Each patient shall be provided visual privacy during treatments
and personal care.
(m) Patient call signals shall be answered promptly.
99. 80 Cal. App. 4th 514, 95 Cal. Rptr. 2d 336 (Cal. Ct. App. 2000).
100. See id. at 522, 95 Cal. Rptr. 2d at 341 (stating that “‘an administrativeagency cannot independently impose a duty of care if that authority has notbeen delegated to the agency by the Legislature.’”).
101. Id. The court stated:
[T]he question before us is . . . whether the duly authorized regulations
can be used to describe the care required under an existing statutory
right of action for elder abuse. . . . We find no authority to suggest a
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fact, according to the court, it seems one can use most any source
available in drafting jury instructions.102
Counsel for plaintiffs will argue that the violation of a regulation
should be evidence of recklessness, or should at least establish
notice.103 Arguably, the regulations cannot be used to establish a
cause of action or to establish a finding of negligence per se.104
Indeed, even the judge expressed concern about the court’s
language in Estate of Gregory,105 stating that he could not see the
difference between “describing” the standard of care, which is
allowed,106 and “establishing” the standard of care, which is not.107
In attempting to determine how to use the regulations in elder
abuse cases, looking at the original purpose of the regulations may be
illustrative. As Judge West questioned, “Is the purpose of the
regulations to establish a standard of care or to improve the level of
care given?”108
D. The Use of Experts in Elder Abuse Litigation
California Evidence Code section 801 “codifies the existing
[general] rule that expert opinion is limited to those subjects that are
beyond the competence of persons of common experience, training,
party may not base instructions on relevant state or federal regulationsin the proper case.
Id. at 522–23, 95 Cal. Rptr. 2d at 341–42 (emphasis added).
102. See id. at 523, 95 Cal. Rptr. 2d at 342 (“Sources of law for jury
instructions include statutes, court opinions, treatises, hornbooks, legalencyclopedias, digests, and form books.”).
103. See Garcia, supra note 48.
104. See Estate of Gregory, 80 Cal. App. 4th at 523, 95 Cal. Rptr. 2d at 342(citing Housley v. Godinez, 4 Cal. App. 4th 737, 747, 6 Cal. Rptr. 2d 111, 117
(Cal. Ct. App. 1992) (finding that the regulation requiring drivers to wear a
seatbelt could be considered by the jury in determining whether the driver had
exercised due care, but not to establish presumptive negligence).
105. See The Honorable Carl West, Presentation at Honor Thy Mother and
Father: A Symposium on the Legal Aspects of Elder Abuse at Loyola LawSchool (Apr. 29, 2002) (transcript on file with Loyola of Los Angeles Law
Review).
106. See Estate of Gregory, 80 Cal. App. 4th at 522, 95 Cal. Rptr. 2d at 341–
42; see also supra text accompanying note 101.
107. See Estate of Gregory, 80 Cal. App. 4th at 522, 95 Cal. Rptr. 2d at 341;
see also supra text accompanying note 100.
108. West, supra note 105.
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and education.”109 For example, experts are required in the
professional negligence context to prove the standard of care
required for the health care provider involved in the lawsuit.110
Therefore, because experts are only used to explain difficult or
confusing concepts to the trier of fact, they may not be appropriate in
an elder abuse lawsuit. However, as one recent RAND study found,
in California Superior Court trials in the late 1980s, experts testified
in eighty-six percent of all cases.111
One argument for using expert testimony in elder abuse cases is
that an expert may be needed to explain the meaning of
“recklessness”.112 “‘Recklessness’ refers to a subjective state of
culpability greater than simple negligence, which has been described
as a ‘deliberate disregard’ of the ‘high degree of probability’ that an
injury will occur.”113 However, Judge West explained that it may
not be necessary to use an expert to explain the standard of care in a
simple negligence case or in an elder abuse case not involving claims
of professional negligence of a health care/medical provider.114 As
he expressed, there may be statutes that lay out standards which
would be understandable to the lay juror.115
Other possible uses for an expert may include making the
connection between the injury and the acts or omissions that
allegedly led to the injury,116 which is often a lack of adequate
numbers of staff.117 An expert may be needed to testify as to
whether the staffing at the facility meets the required level based on
the number of residents in the facility.118 An expert witness also may
109. CAL. EVID. CODE § 801 (West 2002) (Law Revision Commission
Comment). This discussion about the use of experts could be applicable toother statutes as well. The corresponding Federal Rule of Evidence regarding
experts is Rule 701. See FED. R. EVID. 701.
110. See Howard v. Owens Corning, 72 Cal. App. 4th 621, 632, 85 Cal.
Rptr. 2d 386, 394 (stating that the standard of care in professional negligencecases must be established by expert testimony).
111. See Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1118–
19.
112. CAL. WELF. & INST. CODE § 15657 (West 2001).
113. Delaney v. Baker, 20 Cal. 4th 23, 31, 971 P.2d 986, 991, 82 Cal. Rptr.
2d 610, 615 (1999) (citations omitted).
114. See West, supra note 105.
115. See id.
116. See Childers, supra note 47.
117. See supra note 82.
118. See Garcia, supra note 48.
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be necessary to explain the medical issues, the appropriate standard
of care, the effects of the understaffing, and the history of the
facility.119
Depending on the actual facts of the case, the use of expert
witness testimony can be critical. Thus, the trend of using experts as
extensively as possible is likely to continue.
E. Evidentiary Issues & Elder Abuse Litigation
There are several unresolved evidentiary issues that often arise
in elder abuse litigation, including whether evidence of chronic
understaffing should be admissible, whether California Evidence
Code section 1157 applies in elder abuse cases, whether plans of
correction are admissible, and whether evidence of prior incidents is
admissible.120 This Section briefly discusses each of these issues.
1. Should evidence of chronic understaffing be admissible?
Because evidence of understaffing is so damaging, plaintiffs
would like all such evidence about the facility’s prior problems with
staffing to be admitted, as well as information about the
corporation’s knowledge about its problems with staffing at their
other facilities.121 As Mr. Garcia so succinctly expressed, “If the
facilities are not adequately staffed to care for their residents, why do
they continue to admit them?”122 To prove the corporate ratification
required for corporate guilt,123 the plaintiffs must be able to show
what the corporation knew and disregarded before the particular
incident at the center of the current litigation occurred.124
Conversely, defense counsel would prefer that less evidence
about understaffing be admitted. To the defense, the most important
question in relation to understaffing is “did the understaffing
contribute to the neglect or abuse that is alleged in this particular
case?”125 Further, the defense argues that only the particular
119. See Canvel, supra note 50.
120. However, this Article does not attempt to exhaustively cover all theevidentiary issues that may arise in an elder abuse lawsuit.
121. See Garcia, supra note 48.
122. Id.
123. See supra Part II.C.2.
124. See Garcia, supra note 48.
125. Canvel, supra note 50.
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facility’s problems with staffing should be admitted, and that such
evidence must be understood in context with the challenges of the
economy and the job market.
2.
Does California Evidence Code section 1157 apply in elder abuse
cases?
California Evidence Code section 1157 establishes an absolute
privilege for documentation related to peer review and quality of care
discussions for certain types of medical facilities.126 Additionally,
“no person in attendance at a meeting of any of those committees
shall be required to testify as to what transpired at that meeting.”127
It is mandatory that every skilled nursing facility have a quality
assurance committee, which must review the quality of care given at
that particular facility.128 However, because skilled nursing facilities
are not explicitly listed in the statute as being protected by this
provision, questions remain as to whether the documents and people
in attendance at skilled nursing facility committee meetings will be
protected. Indeed, if protected under the statute, these committees
can discuss anything they want rather freely with no fear of those
discussions being discoverable. Consequently, the courts must
decide whether these facilities will be protected under California
Evidence Code section 1157.
The interpretation of this provision is so crucial because,
otherwise, as so clearly stated by counsel for the plaintiffs, this
evidence is the “smoking gun” that can often win the plaintiff’s
case.129 As plaintiff’s counsel also stated, these incident review
discussions are “where they hide how they kill, abuse, and maim”
people.130
126. See CAL. EVID. CODE § 1157 (West 2002). This privilege covers
committees of “medical, medical-dental, podiatric, registered dietician,
psychological, marriage and family therapist, licensed clinical social worker,
or veterinary staffs in hospitals.” Id. § 1157(a). Note that it does not
specifically include skilled nursing facilities.
127. Id. § 1157(b).
128. See 42 C.F.R. § 483.75(o) (2001); see also Elizabeth K. Schneider,
Long-Term Care Regulatory Reform: HCFA, the IOM and Opportunity Lost, 4
QUINNIPIAC HEALTH L.J. 107, 137 (2000) (discussing the requirements for
quality assurance committees, as well as some of their procedures).
129. Garcia, supra note 48.
130. Id.
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586 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 36:565
On the one hand, the statute is extraordinarily particular as to
whom it does and does not protect.131 On the other hand, it includes
several categories of services that are typically inherent in the
operations of skilled nursing facilities, including dieticians and
therapists.132 Thus, it is unclear as to whether skilled nursing
facilities will be covered by section 1157. Again, each case may
come out differently in front of different judges, at least until the
California Court of Appeal or the California Supreme Court speaks
on the issue.133
As Judge West pointed out, even if the statute does not protect
the skilled nursing facilities, thereby opening their peer review and
quality assurance committee discussions up to discovery, the
information still may not be admissible under California Evidence
Code section 1151.134
3. Is evidence of prior incidents admissible?
One of the first questions that must be answered in deciding
whether to admit evidence of prior incidents is whether California
Evidence Code section 403135 must be met to get evidence of prior
incidents admitted. Under section 403, the judge must determine
whether there are sufficient foundational facts to support the
admission of evidence regarding the prior incidents before admitting
such evidence. The defense may urge the court to limit the amount
131. See CAL. EVID. CODE § 1157(a) (West 2001).
132. See id.
133. At the time of publication of this Article, a very broad Lexis search of
California case law for the terms “elder abuse” and “evidence w/5 1157”
returned zero cases.
134. See West, supra note 105. Under California Evidence Code Section
1151, subsequent remedial measures taken after the event at issue occurred thatmay have kept the event from happening may not be used to prove negligenceor culpable conduct with respect to the particular plaintiff involved in thelitigation. CAL. EVID. CODE § 1151. The corresponding Federal Rule of
Evidence regarding subsequent remedial measures is Rule 407. See FED. R.
EVID. 407.
135. See CAL. EVID. CODE § 403. Further, section 402 of the Evidence Code
allows a judge to make findings of foundational and preliminary facts out of
the presence of the jury. See id. § 402. Defense counsel’s concern is that the
jury will hear testimony regarding prior incidents of injuries that may not haveactually occurred.
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of such evidence that is admitted to a reasonable number of incidents
over a reasonable period of time.136
Plaintiffs, on the other hand, must be able to admit such
evidence to prove malice,137 to prove the corporate ratification
required under California Civil Code section 3294,138 and to show a
conscious disregard for known peril. For plaintiffs, there may be no
other way to prove these issues other than by using prior incidents to
establish that the corporation knew of the peril and the consequences
beforehand.139
Judges may be inclined to limit the admission of such evidence
to similar incidents.140 For example, if the litigation involves an
individual who has fallen out of a wheelchair, and that person was
supposed to be restrained but was not, then only other incidents
where other unrestrained individuals had fallen out of a wheelchair
should be admitted, not every incident of anyone ever falling out of a
wheelchair.141 This would also preclude admission of evidence of
other types of accidents that do not involve wheelchairs.
Ultimately, this is one of the most important issues to the case,
and the judge must make the final decision, as dictated by California
Evidence Code section 402.142
III. CONCLUSION
As this Symposium indicates, elder abuse is a problem in drastic
need of legal and social redress. The articles summarized in Part I
suggest a broader approach to the overall problem of elder abuse,
including education, social change, and legislation. Conversely, Part
II of this Article specifically discussed litigation as an approach to
protecting the elderly in our society, particularly in nursing homes.
Taken together, this Symposium attempts to focus our discussions on
136. See Canvel, supra note 50.
137. See Delaney, 20 Cal. 4th at 35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617(stating that showing malicious neglect constitutes an action within the scope
of the Elder Abuse Act).
138. See supra Part II.C.2 for a complete discussion of corporate ratification.
139. See Garcia, supra note 48.
140. See West, supra note 105.
141. See id.
142. See CAL. EVID. CODE § 402; see also supra text accompanying note
135.
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the legal aspects of elder abuse and to move our society towards
honoring our mothers and fathers.
Showing posts with label Types of Abuse. Show all posts
Showing posts with label Types of Abuse. Show all posts
Wednesday, November 19, 2008
Sunday, November 16, 2008
University of Illinois Extension - ELDER ABUSE & NEGLECT - definitions, cases, abuser characteristics
Definitions
Physical Abuse
Using physical force that results in physical pain or injury.
Sexual Abuse
Nonconsensual sexual contact with an older person.
Emotional Abuse
Verbal assaults, humiliation, threats, harassment, intimidation, or other abusive behavior.
Neglect
Failure to make provisions for personal care (food, shelter, medical care, social contact), or forceful confinement or restraint of the older adult (either intentionally or unintentionally).
Financial Exploitation
The misuse or withholding or an older adult's resources by another, to the older adult's disadvantage.
The Victim
The typical victim of elder abuse is a widowed, white female in her mid-70s or older, and living on a limited income. The older person usually lives with the perpetrator, who is often a spouse or adult child. Elder victims often do not report being abused. Fearing retaliation by the abuser, being ashamed of the situation, or worrying about having to leave one's home are some of the reasons older adults do not report abuse.The Abuser
The typical abuser is most often the adult child or spouse of the victim, although older family members and nonrelatives may be perpetrators. The abuser may depend on the older person for housing, financial assistance, or emotional support. Research indicates that caregiver stress, alcohol or substance abuse, and emotional and/or financial problems are factors in many instances of abuseCase 1
Is This Elder Abuse?
Alice, 75, a widow, lived in a small apartment with her son, Frank, 54. Frank had been in and out of drug and alcohol treatment centers for years, but was doing well for the last six months since he moved back in with his mother. Alice knew here son had nowhere else to go so she took him in under two conditions: he had to find a job and he could not drink.
Frank found a job and things seemed to be going well until he stopped coming home right after work. Alice knew he was stopping at the corner bar because she could smell the alcohol on his breath. The third time this happened, Alice confronted her son. Frank immediately became belligerent, verbally abusing her and forcing her to go to her room. The next night Alice confronted him again threatening to throw him out if he continued to drink. Frank became enraged and started running toward his mother with his fist raised over his head. Fearing for her life, Alice fled to the safety of her neighbor's house.
Case 2
Is This Elder Abuse?
Carol, 24, divorced, lived on the second floor of an apartment with her two young children. Living below her on the first floor was Beatrice, 86, a nice old lady who didn't leave here apartment very often because of her arthritic knees and poor eyesight. Carol and her children visited Beatrice frequently and often helped with her laundry in exchange for occasional babysitting. Beatrice loved their company.
Every Saturday, Carol offered to do the grocery shopping for Beatrice. Because she could not do it herself, Beatrice was happy to accept Carol's help. Carol thought it was okay to keep $20 of the change each week because she was taking the time and trouble to help Beatrice; although, she was never offered any money. Carol thought Beatrice would never realize the money was missing because of her poor eyesight.
A RealityWarning Signs of Elder Abuse and Neglect
Just as there are many types of abuse, there are also numerous signs or symptoms that abuse may be taking place. The following signs do not always indicate an abusive situation, but can be important clues to possible abuse or neglect.Symptoms of an Abused Older Person
- Unusual or unexplained injuries (cuts, bruises, burns)
- Unkempt appearance
- Pressure or bed sores
- Confinement against will (tied to furniture or locked in room)
- Dehydration or malnutrition without a medical cause
- Fear
- Withdrawal
- Depression
- Anxiety
- Visits to many doctors or hospitals
- Strange and inconsistent explanations for injuries
- Helplessness
- Hesitation to talk openly
- Verbally assaulting, threatening or insulting the older person
- Concerned only with the older person's financial situation and not his or her health or well-being
- Problems with alcohol or drug abuse
- Not allowing the older person to speak for him- or herself
- Blaming the older person
- Attitudes of indifference or anger toward the older person
- Socially isolating the older person from others
According to the National Center on Elder Abuse (NCEA), "Elder abuse in domestic settings is a widespread problem, possibly affecting hundreds of thousands of elderly people across the country. However, because it is still largely hidden under the shroud of family secrecy, this type of abuse is grossly underreported." In fact, many experts agree that the reported numbers represent only the "tip of the iceberg." It is estimated that only 1 out of 14 domestic elder abuse cases is reported to the authorities.
In Illinois, it is estimated that four to five percent of the older population (approximately 80,000 persons) is abused. Only 5,000 cases or so are reported each year. Currently, six out of ten reported cases are substantiated after investigation.
Types of elder abuse may include physical, sexual, or emotional abuse; neglect, or financial exploitation. It is possible that more than one type of abuse may be suspected in any given case. Financial exploitation and emotional abuse are the types most commonly reported in Illinois.
The Elder Abuse and Neglect Program in Illinois
The Illinois Elder Abuse and Neglect Act became law in 1988 and called for the state to address the problem of domestic elder abuse. As a result, the Elder Abuse and Neglect Program was implemented under the direction of the Illinois Department on Aging (IDOA). This statewide program was established to respond to reports of alleged elder abuse, neglect and exploitation and to work with the older victims in resolving abusive situations. Services are available to those age 60 and older who live in the community. The State Long Term Care Ombudsman Program responds to many types of complaints from nursing home residents, including reports of abuse and neglect. The agency responsible for investigating allegations of abuse or neglect in long term care facilities, however, is the Illinois Department of Public Health.After a report is made, trained case workers assess the situation and provide information and assistance to help the older person and family resolve their problems. Many different programs and services, include but are not limited to, respite care for the caregiver, adult day care, housing assistance, and nutrition resources.
As of January 1, 1999, professionals are required, for the first time, to report suspected abuse, neglect and exploitation of persons over 60 who, because of dysfunction, are unable to report themselves. The mandatory reporting requirement applies only to an older person who is unable to seek assistance for himself or herself in order not to compromise the older person's right to self-determination. Voluntary reporting continues to be encouraged for suspected mistreatment of older citizens who have the ability to self report.
Mandated reporters include a range of professionals in the medical, social service, law enforcement and eldercare fields. Reporters of elder abuse are provided by law with immunity from criminal or civil liability and professional disciplinary action.
If elder abuse is suspected, calls can be made to the IDOA hotline at 800-252-8966, 8:30 to 5:00 Monday through Friday (voice and T.D.D.), or to 800-279-0400 evenings, weekends, and holidays.
Elder abuse coming out of the closet
Elder abuse coming out of the closet
VINCE TALOTTA/TORONTO STAR
Lisa Manuel is the leader of the elder abuse team at Family Service Toronto.(Nov. 12, 2008)
THE SERIES
She has visited dozens of nursing homes and interviewed hundreds of health-care workers, policy-makers and seniors to present this weeklong portrait.
Main page | Series schedule
November 12, 2008
JUDY STEEDSPECIAL TO THE STAR
"On the topic of elder abuse, society is back where we were with woman abuse in the 1970s," says Lisa Manuel, whose Family Service Toronto team provides counselling to seniors and their caregivers.
"Elder abuse is such a hidden problem, such a sensitive issue," but more seniors are ready to bring it out of the closet, she says.
Earlier this fall, the Family Service Toronto opened Pat's Place, a bachelor apartment to act as a safe haven for abused elders.
But Ontario "hasn't developed the capacity to work with older abused people," Manuel says. "Family Service Toronto is the only agency that has a safe haven for seniors. We've got the expertise and we collaborate with the Advocacy Centre for the Elderly (legal aid clinic). They will call us and make referrals to assist their clients."
A woman may have been abused by her husband; when he dies, his adult children may continue perpetrating the abuse. "Maybe they were abused too, and blame the mother. The mother feels guilty. We're often dealing with generational trauma."
Admitting to being a victim is hard. "People are ashamed they've `let' it happen. They think they're to blame."
Experts estimate that at least 10 per cent of seniors are abused. "What we're seeing is that, year over year, more elders are identifying that, `this isn't right,' and they're reaching out for help."
Primarily, Manuel's team deals with abuse perpetrated by adult children on their parents. The abuse can be physical, psychological, emotional, medical, financial or plain neglect.
"Sometimes abused older women will say, `I gave birth to him, I did something wrong, I'm to blame, it's my fault, I'm the parent, I have to sacrifice myself.' The abusive adult child will think, in terms of financial abuse, `You're going to die anyway, I need the money now, I'm going to take it.'"
Once the money is gone, it's gone, Manuel says. "We have to catch the adult child selling the house out from under the older parent in order to get anything back."
Abuse of older adults was first identified by doctors in England in the 1970s, when an old woman was brought to a hospital with signs of physical abuse. Awareness spread of "granny bashing," and now, in the U.S., professionals are required to report signs of abuse – but not in Ontario. "Why is that?" Manuel asked. "There is an automatic requirement to report the abuse of children in Ontario, but not the abuse of older adults?"
The answer: Ageism is like racism and sexism; when it's all-pervasive, it results in a particular category of people being treated differently.
"It's insidious. Older people get a different reaction from society. If a 72-year-old is being abused, the system will question, `Is she reliable? Is she capable of making decisions?' Ageism undermines older people."
In some cases, adult children who have lost their jobs move back home with parents, expecting them to die, but when the parents live on, they may be abused.
"Victims are mostly mothers, but some fathers get abused," Manuel says.
Why doesn't the abused older parent do something?
Manuel understands the dynamics all too well: She also runs the violence against women team, and she sees similar issues in elder abuse: "The victim is usually dependent on the abuser, and can't imagine being free of the situation in which they're trapped." Just as an abused woman can't imagine being liberated from an abusive husband, "it's hard for a parent to sever a relationship with an adult child. It's difficult for them to think about what to do while embedded in the situation."
Hence the creation of Pat's Place, which opened in September, to give elderly victims a place to get emotional and physical distance from the problem, to get some sleep, some food, and to experience what it's like to be outside the abusive relationship. They can stay for up to 60 days, rent-free.
Pat's Place is modelled on a similar project in Edmonton, where the city provides seven apartment units for abused elders in a larger building.
In a year, Manuel's elder abuse team – up to six people – deals with 100 cases. They cover all of Toronto. The socio-economic status of victimized elders is "hugely variable. It happens in all walks of life. Some are on full pensions and lose all their money; cheques will be diverted to the point that the elder can lose their home. We've had to phone pension offices to report fraud, pension cheques being signed fraudulently."
If the elder abuse team has reason to believe an older adult is at risk of immediate harm, they can report the case to Ontario's Office of the Public Guardian and Trustee. "If we believe the older adult is not able to take care of themselves, an investigation will be launched."
If seniors want to continue the relationship with an abusive or domineering child, they do. "We see that as their decision."
If you need help, call 416-595-9618.
Elder Abuse - Financial Exploitation by a Conservator
Elder Abuse - Financial Exploitation by a Conservator
Dru Sampson
J.D. Kansas, May 1996
May 1996
Related neln.org Resources
Introduction
"[O]ne startling conclusion about the whole process of incompetency was drawn from the realization that in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before. The study could identify no particular benefit which flowed to the incompetent that he could not have received without a finding of incompetency." G. Alexander & T. Lewin, The Aged and the Need for Surrogate Management, 136 (1972) - Syracuse University Press, Syracuse, N.Y.
Quoting Elias Cohen, a Philadelphia attorney and gerontologist, Denise M. Tolpolnicki wrote: "Outside of execution, guardianship is the most radical remedy we have." The Gulag of Guardianship, Money Magazine, Mar. 1989, at 140.
This annotated bibliography highlights a relatively common form of abuse against our state's elder citizens: financial exploitation by a conservator. The materials included are limited to those that define or explain this multi-faceted problem. It is impossible to explore solutions to this problem without understanding the underlying causes, etc. The bibliographic entries include Kansas statutes and cases or introduce concepts which are needed to understand this growing concern. Many of the secondary materials provide a general overview of guardianship/ conservatorship and or elder abuse. Those that mention Kansas law specifically within the work itself are noted. Works that focus on the law of other jurisdictions in this area are purposefully omitted. Numerous articles that have been written on the
alternatives to guardianship/conservatorship but are likewise not included in this bibliography.
The bibliography is divided into eight sections: Definitions, Scope of the Problem, State Response, Other Possible Solutions, Statutes, Cases, Legislative materials, Administrative and executive materials, and Secondary materials. Each section includes those items found through researching the Kansas statutes, American Law Reports, Corpus Juris Secundum, Kansas Digest 2d and University of Kansas and University of Wisconsin Schools of Law and University of Kansas Watson libraries under the headings of:
Conservator;
Elder Law, including elder abuse;
Guardian and Ward;
Mental Health;
Aged; and
Elderly.
Additional materials have come through Molly Wood, a Kansas lawyer whose practice deals primarily with elder law issues. She heads the University of Kansas School of Law Elderlaw Clinic.
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Definitions
The following definitions are consistent with the general understanding of the law in Kansas and identify their sources, followed by page or section (¤) number. Full citations appear in the bibliography entries of this annotated bibliography.
Conservatee
a disabled person, with respect to the estate (property, income, and benefits) that is managed by another. Kansas Guide, 11.
a person who has a conservator. Kan. Stat. Ann. ¤ 59-3002(k).
Conservator
● "fit and proper" or "suitable" individual(s) or corporation(s) appointed by the court to manage such properties, income, and benefits "on behalf of" a disabled person. Kansas Guide, 11.
Conservatorship
● substitute decision making for matters concerning the incapacitated person's property (assets).
Nutshell, 229.
Disabled person
● "any adult person whose ability to receive and evaluate information effectively or to communicate decisions, or both, is impaired to such an extent that the person lacks the capacity to manage such person's financial resources or, except for reason of indigency, to meet essential requirements for such person's physical health or safety, or both." Kan. Stat. Ann. ¤ 59-3002(a).
The term "disabled" was purposefully selected in the 1983 law to replace what had been termed "incapacitated." Kansas Guide ¤ 1.3.
Exploitation
● financial abuse of individuals by the repeated improper or illegal use of their assets. Nutshell,
398.
taking unfair advantage of an adult's . . . financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker. . . . Kan. Stat. Ann. ¤ 39-1430 (d).
Fiduciary abuse
● a situation in which any person who is the caretaker of, or who stands in a position of trust to, an adult, takes, secretes, or appropriates their money or property, to any use or purpose not in the due and lawful execution of such person's trust. Kan. Stat. Ann. ¤ 39-1430 (e).
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Scope of the Problem
This bibliography will target problem areas in Kansas and Kansas' recognition and response to what is perceived among legal scholars, ethicists, health law advocates, social scientists and the press as a growing area of concern nationwide and worldwide--financial exploitation of the elderly conservatee by the court-appointed conservator. The increasing longevity of our population and increasing number of non-family households teamed with the increasing desire of the elderly to maintain independence in determining their own plans for care if incapacitated emphasize the need to address this concern in a timely fashion. The assumption that a senior citizen is being properly attended to by her/his immediate family is no longer valid, if it ever was.
In a seminar in September of 1994, Molly Wood emphasized that financial exploitation can be thwarted by several different means: the use of joint tenancy with right of survivorship when dealing with real
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property; jointly-held or payable on death accounts when dealing with personal property; limited or full powers of attorney; institutional attorneys-in-fact; limited conservatorships; trusts. All of these legal tools have advantages and disadvantages. All impinge upon an elderly person's independence. And yet none of them can guarantee the involved adult that his/her assets will be safe. None can guarantee that the elder will not be exploited, even by his/her own conservator.
Potential for conservator exploitation exists at three significant stages:
at the incompetence determination stage;
● overreaching of conservator authority at the appointment stage; and/or
during the life of the conservator's appointment.
While the intent of Kansas law is to provide the "least restrictive" assistance for its disabled adults, the opposite is far too often the reality. Far too many elders are not represented at their competency hearings; to satisfy convenience rather than necessity, conservators are granted greater powers than are required; and once disabled persons become conservatees, their former rights are rarely reviewed and almost never restored. While conservatees remain nominally under the court's jurisdiction, statutorily required annual accountings often go unfiled, leaving the conservatee open prey for conservator exploitation. As so aptly put by Alexander and Lewin, "in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before."
Guardianship/Conservatorship Procedures
Kansas separates the concepts of guardian (of the person) and conservator (of a ward's assets and/or property). Because of the language used in the various jurisdictions, some titles listed in the bibliographic entries refer to guardianship but in almost all cases are applicable to conservatorship as well.
In Kansas, as in most jurisdictions, great discretion is given to the district court throughout the guardianship/conservatorship process. Procedures often vary from county to county as to what is required by a conservator. Those electing to serve in that capacity should contact the Clerk of the Court in the county where the conservatee resides for the procedure in that county.
An attorney is usually required to prepare the initial petition and it would serve the lay conservator well to consult with a lawyer to see that all the required steps have been completed.
The steps involved include: the filing of a petition, orders issued by the court setting the time and place of hearing, sending notice to all interested parties, and a hearing before a judge or jury. Upon finding by clear and convincing evidence that the proposed conservatee is a disabled adult in need of a conservator, the judge will determine whether a limited or full conservatorship is needed, set forth such findings of fact in the court's order and issue the appropriate letters after the conservator files a written oath to faithfully discharge all the duties that are assigned by the court. A bond may be required for the
conservator. Within thirty (30) days, unless longer time is granted by the court, the conservator must prepare an initial inventory. Kansas Guide, 14-16, citing Kan. Stat. Ann. ¤¤ 59-1702 and 59-1201.
Unless expressly waived by the court, the guardian must annually report the status of his/her ward on the prescribed form. Throughout the life of the guardianship/conservatorship, the appointed conservator must file a verified annual accounting of the conservatee's estate with the court. If the conservator has been appointed under the authority of the Department of Social and Rehabilitation Services, an annual accounting must also be filed with the Secretary of SRS. Kan. Stat. Ann. ¤ 59-3029.
A conservatorship is not terminated until a final accounting is approved by the court, Kan. Stat. Ann. ¤ 59-3031; therefore, a conservator should again check with an attorney to see that all of the required steps have been completed. If a bond was required, the bond company will not release the conservator until the court orders that the conservatorship is terminated and the conservator and his/her surety are released.
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State Response
Guardianship/Conservatorship Legislation
In response to the growing concern for disabled adults (and minors - although they are not the subject of this annotated bibliography), the Kansas Legislature revised its guardian/conservatorship laws during the 1983 Legislative Session. They became effective July 1, 1983.
Significant was the change in focus of the law from having "charge of" to acting "in behalf of" the ward and "promoting and protecting the care . . . and welfare of the ward." In addition, the new legislation replaced "incapacitated" with "disabled," showing concern for those Kansans who have need of guardian/ conservatorships, but also enabling the courts to meet the individual, personal needs of the wards/ conservatees, while safeguarding their "civil and human rights."
In many cases, the conservator and guardian of a ward/conservatee is one and the same person; however, the court may appoint separate individuals to serve in the two capacities, may appoint a conservator but not require a guardian, or vice versa.
If a Kansas court has proper jurisdiction and venue, it may appoint a conservator for an adult who has filed a petition for voluntary appointment of a conservator under Kan. Stat. Ann ¤ 59-3007, or a disabled person who lacks the capacity to manage such person's financial resources. Kan. Stat. Ann ¤ 59-3006(b)
(1) and (2).
At all times, a conservator is subject to the control and direction of the court. Kan. Stat. Ann. ¤ 59-3019.
Kansas statutes currently:
1. allow a corporation to serve as a conservator. Kan. Stat. Ann. ¤ 59-3037.
While a corporation serving as a guardian must be a "private, non-profit corporation, certified by the Secretary of Social and Rehabilitation Services," Kan. Stat. Ann. ¤¤ 59-3002(d) and (f), 593013, a court may allow a bank or trust company to serve as a conservator. Kan. Stat. Ann. ¤¤ 91606, 59-1701(5).
2 set out the rights and duties and powers of a conservator, all requiring the conservator to act "on behalf of" and to manage the estate "for the benefit of" the conservatee. Kan. Stat. Ann. ¤ 593019 - 3026, 59-1702.
3 require an annual, verified accounting, Kan. Stat. Ann. ¤ 59-3029(b).
4 allow for the removal of a conservator, Kan. Stat. Ann. ¤ 59-3014(e), when s/he is incapable of performing the duties or fails or refuses to perform the duties imposed. Kan. Stat. Ann. 59-1711, or when upon review, the court determines that the conservator is not serving the needs of the conservatee. Kan. Stat. Ann. ¤¤ 59-3035(a)(1) and (5) and (c).
Kansas Guardianship Program
While initiated in 1979 as a division of the Kansas Advocacy and Protective Services, Inc. (KAPS), the Kansas Guardianship Program was established as a separate entity in 1995 by the Kansas Legislature through the Kansas Guardianship Program Act. Its purpose is to recruit volunteers to serve as court appointed guardians or conservators, or both, for adults who are found by the court to be in need of this level of protection. Kan. Stat. Ann. ¤ 74-9602.
The program's express goal is to provide . . . qualified, caring, willing and trained persons . . . throughout the state . . . for those eligible [court determined] disabled persons in need of . . . protection and advocacy, and for non-adjudicated persons who elect to have a voluntary conservator and who do not have family members capable of or willing to assume such responsibilities. Kan. Stat. Ann. ¤ 749602.
The main office of the Kansas Guardianship Program is located at:
Kansas Guardianship Program
3248 Kimball Avenue Manhattan, Kansas 66503-0353 Its telephone number is: 913/587-8555, or 1-800-672-0086 for a toll-free message only.
Other offices are located at: 6700 Squibb Road, Ste. 104, Mission, KS 66202 Phone: (913) 236-5207
The Kansas Guardianship Program is a public instrumentality and is governed by a seven-member, voluntary board of directors, consisting of the chief justice of the supreme court or designee, and six residents of the State of Kansas appointed by the Governor, at least one of whom is serving as a volunteer in the program.
Since its beginnings seventeen years ago, what is now the Kansas Guardianship Program, has had approximately 1800 ward/conservatees statewide and over 750 volunteer guardian/conservators. According to Laura Dickinson, a recruiter/facilitator for the program, it is the only volunteer guardianship program in the country and serves as a model for numerous states that are trying to establish like programs.
A volunteer in the program who is appointed by the court as a guardian/conservator then contracts with the program to provide a high level of advocacy and protection for his/her ward/conservatee or volunteer conservatee. This includes monthly reports of activities that have been undertaken on behalf of the ward/ conservatee, regular visits to the him/her, and services on his/her behalf which are reimbursable up to $20/month.
The Kansas Guardianship Program also serves as a resource for all Kansans serving in the capacity of a guardian or conservator. Even if not affiliated with the Kansas Guardianship Program as one of its volunteers, any guardian/conservator can contact the program with questions they may have.
Kansas Protective Statutes
Kansas statutes were enacted in 1989 to require, upon reasonable cause to believe, the reporting of any abuse, neglect and/or exploitation, including "fiduciary abuse," of certain adults to the Department of Social and Rehabilitation Services. Kan. Stat. Ann ¤ 39-1430(e). Those required to report include licensed psychologists, chief administrative officers of medical health care facilities, licensed social workers, licensed professional nurses, licensed practical nurses, licensed dentists, law enforcement officers, and chief administrative officers of licensed home health agencies. Kan. Stat. Ann. ¤ 39-1431. Those who are required to report but fail to do so are guilty of a class B misdemeanor. Kan. Stat. Ann. ¤ 39-1432(e). "Any other person having reasonable cause to suspect or believe that an adult is being or has been abused, neglected or exploited . . . may report." (Emphasis added.) Kan. Stat. Ann ¤ 39-1431 (c). Both classes of reporter receive immunity from liability for the reporting. Kan. Stat. Ann ¤ 39-1432.
The involved adult may refuse any protective services attempted. Kan. Stat. Ann. ¤ 39-1438. The statute
does not lay out specific remedies under the act but indicates that any actions taken under the act shall be the least restrictive actions which will accomplish protection and accommodation for the involved individual. Kan. Stat. Ann. ¤ 39-1442.
This statute falls short of providing penalties for the abuser and, ironically, does not make the exploitation, abuse or neglect a crime. . . only the failure to report it.
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Other Possible Solutions
Suggestions implemented in other states for the prevention of financial exploitation by a conservator include:
1 devising a system of court appointed visitors; and/or
2 making the exploitation of elders a crime with criminal penalties for the abuser/exploiter; and/or
3 the development of guardian/conservator training for those serving in that capacity.
Kansas has not enacted any of these.
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Statutes
Federal Statutes
42 U.S.C. 3058 et seq., Older Americans Act, Title VII Subp. 3, Programs for Prevention of Elder Abuse, Neglect, and Exploitation.
42 U.S.C. 3058(g) requires long-term care ombudsman programs. In Kansas, Kan. Stat. Ann. ¤ 75-5916 et seq. provides for the Office of a long-term care ombudsman.
State Statutes
Kan. Stat. Ann. ¤ 9-1606 (1991 & Supp. 1995). Authority of consolidated bank or trust company to act as fiduciary.
Kan. Stat. Ann. ¤ 17-5004 (1995). Standards for investments by fiduciaries; prudent investor rule; conservators; trustees following written directions regarding trust property.
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The prudent person standard is utilized to test whether a fiduciary properly invested his/her protectee's finances. See Kansas Attorney General Opinion 89-123.
Kan. Stat. Ann. ¤ 39-1430 et seq. (1993 & Supp. 1995). Reporting abuse, neglect or exploitation of certain adults.
This statute includes fiduciary (conservator) abuse and exploitation in its definitions and requires the reporting of such to the Department of Social and Rehabilitation Services by certain classes of professionals who have the opportunity to come into contact with the protected group. The law encourages all individuals to report any suspected exploitation.
Kan. Stat. Ann. ¤ 59-1201 (1994 & Supp. 1995). Inventory and valuation.
When a conservatorship appointment is made, an inventory of conservatee's real estate and tangible personal property in Kansas and all intangible property wherever located is required within thirty (30) days unless longer time is granted by the court. This includes the full and fair market value as of the date of appointment.
Kan. Stat. Ann. ¤ 59-1701 et seq. (1994 & Supp. 1995). Provisions applicable to all estates. Corporate fiduciaries.
Includes the duties granted corporate fiduciaries, liability for conversion and notice requirements, and numerous situations which a fiduciary might encounter.
Kan. Stat. Ann. ¤ 59-1711 (1994 & Supp. 1995). Removal and penalties.
The general authority to remove a fiduciary is provided by this statute. A fiduciary (conservator in this case) may be removed whenever he or she:
is or becomes incapacitated; or
● otherwise incapable of performing duties imposed; or
fails or refuses to perform such duties as the court orders.
The conservator's compensation may be reduced or forfeited in the court's discretion.
Kan. Stat. Ann. ¤ 59-3001 et seq. (1994 & Supp. 1995). Guardians or Conservators.
The statutes in this article provide the law in Kansas regarding guardian/conservatorships.
Kan. Stat. Ann. ¤ 59-3014 (1994 & Supp. 1995). Appointment of guardian or conservator; priority of nominee; qualifications; limited guardianship or conservatorship; appointment of successor guardian or
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conservator.
Subsection (1)(e) speaks of the court's authority to remove a conservator.
Kan. Stat. Ann. ¤ 59-3028 (1994 & Supp. 1995). Termination of guardianship or conservatorship, when.
Note there is no provision for the termination of a conservatorship in the event of abuse ( financial
exploitation) of the conservatee by the conservator under this statute.
Kan. Stat. Ann. ¤ 59-3029 (1994 & Supp. 1995). Annual and final reports and accounts.
Removal at the discretion of the court is explicit in the statute but it does not address when a conservator
may be removed, etc. It is clear that a conservator is not released from liability upon removal, but only upon the presenting, settling, and allowance of the final accounting.
Kan. Stat. Ann. ¤ 59-3032 (1994 & Supp. 1995). Costs of proceedings, payment.
Fees for professional services, including appointed counsel, may be taxed to the ward's estate or to the
county of residence of the conservatee, if the conservatee is under the jurisdiction of SRS, or to the
petitioner.
Kan. Stat. Ann. ¤ 59-3035 (1994 & Supp. 1995). Periodic review of conservatorship or guardianship;
procedure; orders.
This statute addresses the periodic review of a conservatorship by the court and provides that the court
has the authority to issue appropriate orders including the removal of a conservator whenever it finds:
the conservator fails to meet the conservatee's needs, or
the conservator ceases to function in a manner consistent with the letters of conservatorship, or
the conservator should be replaced.
The court can conduct more frequent reviews at its discretion.
Kan. Stat. Ann. ¤¤ 75-5916 - 22 (1989 & Supp. 1995). Office of long-term care ombudsman.
Establishes the office whose duties include the development of programs to inform residents of long-term care facilities and those responsible for them of their rights and responsibilities. The office investigates and resolves complaints, referring complaints of abuse, neglect and exploitation of a resident to the Secretary of Health and Environment.
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Cases
Federal Cases
Addington v. Texas, 441 U.S. 418 (1979).
The court held that at least a "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily. 418. The individual's liberty interests are of such weight and gravity when balanced against the state's interest of parens patriae that to require less would not meet the demands of due process. 428. Commitment for any purpose constitutes a significant deprivation of liberty that requires due process. 425. States are free to use a higher standard. 433. Cited in Kansas conservatorship cases.
Kansas Cases
Achenbach v. Baker, 151 Kan. 827, 101 P.2d 937 (1940).
Later courts used the following as precedent to support the removal of a guardian (conservator):
The court examined the record in an action wherein a trustee of a testamentary trust was removed for cause and found that the lower court's holding that the trustee's removal was for the best interest of the beneficiaries was supported by substantial, competent testimony and will not be disturbed. Syl. ¦3.
Pedroja v. Pedroja, 152 Kan. 82, 102 P.2d 1012 (1940).
Used to support the removal of a guardian/conservatee: the court held that where there exists and probably will continue to exist friction between the trustee and his two sisters, and in that in the interest of harmony and efficient management of the trust, that the plaintiff trustee should be removed as trustee, and a new trustee appointed. 86.
Wolf v. Weissbeck, 157 Kan. 308, 139 P.2d 398 (1943).
The court emphasized that the paramount duty of both the guardian and the probate court was to protect the estate of the incompetent. 311.
Cornelison v. Walters, 178 Kan. 607, 290 P.2d 1016 (1955).
Where an order giving the guardian (now conservator) permission to cash a ward's (now conservatee's) bond and close his estate was made without any notice whatever being given, such order was void and subject to collateral attack. 612.
In re Estate of Osborn, 179 Kan. 365, 295 P.2d 615 (1956).
The court's authority for the removal and replacement of a guardian/conservator was applied to guardianship of an incompetent adult. The probate court and, on appeal, the district court had the power to remove the guardian of a person and estate (conservator) of an incompetent (ward/conservatee) for good and sufficient cause. 371. The best interest of the ward/conservatee constitutes such good and sufficient cause for the removal of such fiduciary. Id.
In addition, the court found that a conservator's fiduciary responsibility remains in effect until that conservator is released. An appeal from a probate court order removing a guardian/conservator does not revoke, but merely suspends, the operation of such orders until the appeal is determined. Syl. ¦1.
Rathbun v. Hill, 187 Kan. 130, 354 P.2d 338 (1960).
The court reemphasized the "general rule that executors, administrators, guardians, trustees, and functionaries of that general character may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibility is as much a principle of ethics and practical honesty as it is of law." 143.
In re Ingham's Estate, 212 Kan. 218, 510 P.2d 597 (1973).
The court found that the statutes provide that the purpose of a conservatorship is to control, manage, and preserve the assets of a conservatee's estate during that conservatee's lifetime. 223.
Union Nat. Bank of Wichita v. Mayberry, 216 Kan. 757, 533 P.2d 1303 (1975).
Taking its cue from a similar California case, the court held that where a conservatorship is voluntary and the conservatee has the testamentary capacity, a conservator has the duty to take charge of the conservatee's estate and manage or conserve it for the support of the conservatee; but the conservator's duty is only to manage the conservatee's estate during his lifetime. It is not the conservator's function, nor that of the probate court supervising the conservatorship, to directly control testamentary disposition after the conservatee's death. 761. But see Marcotte, infra p. 16, for a distinction.
Citizens State Bank & Trust v. Nolte, 226 Kan. 443, 601 P.2d 1110 (1979).
Where a conservatorship is voluntary, the conservator is a fiduciary appointed to conserve the estate for the benefit of the conservatee. It is not his function, nor that of the probate court supervising the conservatorship, to control disposition of the conservatee's property after death. 449.
A conservatee under a voluntary conservatorship cannot contract or deed away his real or personal property inter vivos without the prior approval of the conservator and, where required by statute, the
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approval of the district court. 450.
The court justifies its ruling in such a way to protect our elders stating: Incapacity is a matter of degree. As all of us grow older, we gradually lose our faculties, both physical and mental. . . . If a voluntary conservatee . . . were to be given an unbridled power to contract or deed away his property inter vivos, the voluntary conservatorship would seldom be used. 450-51. Instead loved ones, in an effort to protect the conservatee, would utilize the compulsory conservatorship and "the old folks would in most instances be required to spend their golden years branded as 'incapacitated' or 'incompetent.' " Id. at 451.
The court also points out that it would be "an impossible situation" for the conservator if such power to contract was given a voluntary conservatee because the conservator, "although given duties and responsibilities, would really have no control over the estate of the conservatee." Id.
The court suggested that such a conservatee has three options:
terminate the conservatorship by filing a verified application that indicates the conservatorship is no longer desired; or
execute the appropriate power of attorney rather than continue with the voluntary
conservatorship; or
use a will to make a testamentary disposition of the property.
Id.
A third party, who innocently contracts with a voluntary conservatee, may be protected from injustice on rescission by the court's application of the equitable principle of restoration of the status quo. Id. at 452.
In re Miller, 228 Kan. 606, 620 P.2d 800 (1980).
Subject matter jurisdiction is granted based on the ward/conservatee's presence in the state, even though a foreign jurisdiction has previously exercised jurisdiction by appointing a guardian or conservator or both, and continues to exercise such jurisdiction. 610, citing Restatement (2d) of Conflict of Laws ¤ 79 (1971).
An attorney who personally petitions for the appointment of a guardian or conservator for a proposed ward or conservatee will not be allowed attorney's fees because such professional services are not technically "ordered by the court" as required by Kan. Stat. Ann. ¤ 59-3032. 611.
And, when the assets of the conservatee are in the foreign jurisdiction, attorney's fees must be petitioned from the court with original jurisdiction. Kansas courts do not have the jurisdiction to allow such a claim. Id.
Hatfield v. Hatfield, 231 Kan. 427, 646 P.2d 481 (1982).
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Accepting of benefits of a judgment constitutes an acceptance of the judgment and forecloses a former wife of a conservatee's right to appeal. 430.
Trusteeship of Sandstrom, 236 Kan. 805, 696 P.2d 958 (1995).
While statutes provide that the provisions of law relating to the estates of incapacitated persons and the conservators thereof . . . shall govern the administration and management of a convict's estate, 809, that convict is not deprived of the capacity to contract and convey property if it diminishes the conservatorship estate like a voluntary conservatee is. Id.
In re Conservatorship of Marcotte, 243 Kan. 190, 756 P.2d 1091 (1988), appeal after remand, No. 65,771, 294 Kan. ix (July 12,1991), 815 P.2d 119 (1991).
Administrator of decedent conservatee's estate sued the former co-conservators to recover alleged converted funds. The conservatorship was voluntary.
Here, the court distinguishes from Mayberry, supra p. 14, saying that the decision there was based on testamentary versus inter vivos gifts, not whether the property was real or personal.
The court found that the penalty provisions of Kan. Stat. Ann. ¤ 59-1704, which holds that a person who converts the property of a conservatee to his/her own use is liable for double the value of the property, are mandatory, regardless of whether the conservator acted in putative good faith. 194.
Payments made by co-conservators which were not made for the benefit of the conservatee or did not represent necessary expenses of the conservatorship constituted "waste" for which the co-conservators were held liable to the conservatee's estate, together with interest earned from the date of the payments.
198.
The court ruled that co-conservators were individually liable for the value of any gifts and expenses, plus interest, made from the conservatee's estate without the court's approval, which resulted in personal gain to the co-conservators and their families. Syl. ¦6.
Brice-Nash v. Brice-Nash, 5 Kan. App. 2d 332, 615 P.2d 836 (1980).
An adjudicated "incapacitated" ward/conservatee does not have the capacity to file for a divorce. 338.
Fielder v. Howell, 6 Kan. App. 2d. 565, 631 P.2d 249 (1981).
A guardian/conservator who is also a joint tenant with right of survivorship with his ward/conservatee has a conflict of interest which demands scrupulous fairness and impartiality in administering the estate.
Syl. ¦1.
A case by case approach must be taken to determine whether the beneficiary of the trust is actually harmed when a conservator is alleged to have a conflict of interest and may have breached his/her fiduciary duty. 567. (See also Briley, infra p.19.)
In re Lake, 7 Kan. App. 2d 586, 644 P.2d 1368 (1982).
This case sets out the factors to be considered for removal of a guardian. A mentally disabled adult ward had been under a guardian and conservatorship to the ward's sister for seven years when the ward's husband, once divorced from the ward but now remarried to her, appealed the denial of a motion to change the ward's guardian/conservator. The husband was not incapacitated. Independent testimony indicated that the conservator threatened to institutionalize the ward if she complained about her treatment. It further indicated that the conservator was using the ward's financial resources for her own personal use and was neglecting her conservator responsibilities by not visiting the ward and not providing for the ward's medical care.
The appeals court reversed the trial court's decision denying the husband's motion stating it abused it's discretion "in failing to consider the actions of the guardian to [the ward's husband] and the evidence of distrust by the ward" to her conservator.
This case establishes that it is within the court's discretion to remove a guardian. 588.
The "best interests" of the ward is the standard that is applied. 588-89.
Factors that must be considered include:
Overall relationship of the guardian and the ward;
Desires of the ward in light of the severity of his particular incapacitating condition;
Adequacy of the guardian's past financial records and decisions; and,
Availability of a fit and proper person willing to be substituted as guardian and conservator. Syl. ¦3.
In re Conservatorship of L.M.S., 12 Kan. App. 2d 725, 755 P.2d 22 (1988).
Any transaction where there is a substantial conflict of interest is voidable unless approved by the court after hearing upon notice to all interested persons. 727.
The court does not have discretion to decide who will receive notice of its proceedings and yet issue orders that bind even interested persons who receive no notice. 726.
Whether conservator's expenses are reasonable is left to the court's discretion and is reversible only
when the court abuses that discretion. 729.
Matter of Estate of Briley, 16 Kan. App. 2d 546, 825 P.2d 1181 (1992).
As its fiduciary, a conservator has the general duty to exercise the same diligence and prudence that would ordinarily be employed by reasonable people toward the management of that conservatee's estate.
548.
Those duties include taking any reasonable steps to manage and protect the conservatee's assets from dissipation by joint depositors or others with access to the property. Id.
The conservator may withdraw from the joint account only to provide what is necessary for the conservatee's maintenance. A conservator does not succeed to the full discretionary personal rights of the conservatee in jointly-held accounts. 549.
A conservator is not the alter ego of the conservatee; therefore, a decision to terminate joint accounts or change a beneficiary is a personal, elective right of the conservatee, as is a decision regarding distribution of the conservatee's property after the conservatee's death. Id.
A conservator should protect jointly-held funds by obtaining a court order, thus requiring the court's approval for all withdrawals by any party to the account. 550.
In re Fogle, 17 Kan. App. 2d 357, 837 P.2d 842 (1992).
Converting a limited guardian/conservatorship to a guardian/conservatorship with full powers requires notice to the proposed ward/conservatee. 362. The notice provisions are mandatory and failure to comply with them deprived the court of jurisdiction over the proposed ward/conservatee. 361. But see Heck, infra p. 21. (Once a petition for conservatorship has been filed in the county where the proposed conservatee resides, the court has jurisdiction over the matter.
Campbell v. Black, 17 Kan. App. 2d 799, 844 P.2d 759 (1993).
Where a conservatorship is voluntary because of physical, rather than mental, infirmities, the conservator is a fiduciary appointed to conserve the estate for the benefit of the conservatee. 805-06.
A conservator is not prohibited from withdrawing funds from the conservatee's account even if he is a joint account holder, but the conservator should obtain approval from the court for all withdrawals from the account by any party. 805.
Being a joint account holder does not alter his fiduciary obligations. The conservator and conservatee are not in the same relationship as mere joint account holders. The conservator owes a fiduciary
obligation to the conservatee to act for her benefit and protection. 806.
In re Conservatorship of Holman, 18 Kan. App. 2d 173, 849 P.2d 140 (1993).
The court's acceptance of conservator's final accounting is an appealable order once notice is given to all interested persons. 176.
Matter of Conservatorship of McRoy, 19 Kan. App. 2d 31, 861 P.2d 1378 (1993).
The facts in this case are unique in that the conservator was both the natural mother of the minor conservatees and a lawyer; however, the court makes it perfectly clear that its decision should not be construed in any way as restricting the power of the district court in regulating the activities of all conservators. 34.
Where there has been a breach of duties, the district court has the power to remove a conservator. Here, a breach of duty included a failure to supply the required accountings, but the court included "otherwise comply with the supervisory orders of the court." 34-5.
Procedural safeguards such as adequate notice to the conservator is required before removal. 34-5.
Where there has been a breach of duty, the court has the power to reduce or mandate the forfeiture of the conservator's compensation. Id.
The district court not only has the right but has an affirmative duty and obligation to carefully scrutinize the activities of the conservator and to make corrective orders when necessary. 35.
A district court has clear authority to use its contempt powers to compel compliance with its orders, but must scrupulously follow the procedures for indirect contempt and must keep a record which is reviewable. 35.
If sufficient facts appear in the record, a showing that the conservator's failure to account was willful is not required. 36.
Matter of Guardianship and Conservatorship of Heck, Nos. 72,440 and 72,723 (Kan. App. Mar. 15, 1996), 913 P.2d 213 (1996).
Once the petition was filed in the proposed conservatee's county of residence, subject matter jurisdiction over conservatorship estate existed. Syl. ¦2.
In enacting Kan. Stat. Ann. ¤ 59-3001 et seq., the legislature did not intend to prohibit a conservator from taking any action on behalf of a conservatee prior to the posting of a bond and the receipt of letters
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of guardianship. Syl. ¦6.
Back to Index
Legislative Materials
House Select Committee on Aging, Elder Abuse: A National Disgrace, (Comm. Pub. No. 99-502) Washington, D.C., U.S. Government Printing Office. (1985).
House Select Committee on Aging, The Tragedy of Elder Abuse: The Problem and the Response, (Comm. Pub. No. 99-580) Washington, D.C., U.S. Government Printing Office. (1986).
House Select Committee on Aging, Problems of the Elderly: Central States Coalition on Aging, (Comm. Pub. No. 99-609) Washington, D.C., U.S. Government Printing Office. (1987).
Of special interest in this hearing report before the Subcommittee on Health and Long-Term Care is the statement of Joyce Romero, then Secretary of the Kansas Department on Aging, which speaks to the goal of safeguarding the elderly against abuse, neglect and exploitation. 41.
House Select Committee on Aging, Subcommittee on Health and Long-Term Care, Elder Abuse: A Decade of Shame and Inaction, (Comm. Pub. No. 101-752, Chairman's Report) Washington, D.C., U.
S. Government Printing Office. (1990).
House Select Committee on Aging, Subcommittee on Health and Long-Term Care, Elder Abuse: A Decade of Shame and Inaction, (Comm. Pub. No. 101-768) Washington, D.C., U.S. Government Printing Office. (1990).
House Select Committee on Aging, Subcommittee of Human Services, Meeting the Needs of the Frail Elderly, (Comm. Pub. No. 101-755) Washington, D.C., U.S. Government Printing Office. (1990).
House Select Committee on Aging, Subcommittee of Health and Long-Term Care, Elder Abuse: Curbing a National Epidemic, (Comm. Pub. No. 102-798) Washington, D.C., U.S. Government Printing Office. (1991).
House Select Committee on Aging, Subcommittee of Human Services, Elderly Abuse: What Can Be Done?, (Comm. Pub. No. 102-808) Washington, D.C., U.S. Government Printing Office. (1991).
House Select Committee on Aging, Improving the Lives of Senior Citizens: Progress Being Made on Congressional and Local Levels, (Comm. Pub. No. 102-831, Briefing by Hon. Harold Ford.) Washington, D.C., U.S. Government Printing Office. (1991).
Of special interest are the remarks about elder exploitation by Karen P. Dennis, Executive Director of the Memphis Area Legal Services, Inc.. 41.
Back to Index
Administrative and Executive Materials
Commission on National Probate Court Standards, National College of Probate Judges & National Center for State Courts, National Probate Courts Standards (1993).
In response to the many criticisms of the guardianship process, the National College of Probate Judges adopted the Standards. They are divided into three sections: Probate Court Performance, Administrative Policies and Procedures, and Probate Practices and Proceedings, which include nineteen standards on conservatorships.
Back to Index
Secondary Materials
Model Codes, Restatements
Model Rules of Professional Conduct Rule 1.14
If the attorney for a client/guardian becomes aware that he/she is not acting in the best interests of the ward, "the lawyer may have an obligation to prevent or rectify the guardian's misconduct." No guidance is given concerning how to accomplish this but the reader is referred to Rule 1.2(d), which states that they lawyer may not counsel or assist a client in criminal or fraudulent conduct.
ABA Comm. on Ethics and Professional Responsibility, Opinion Cl-805 (9/3/82).
An attorney aware of a client/guardian's misconduct should make a reasonable attempt to have the client/ guardian correct the problem. If the client fails to respond to the attorney's advice, the attorney should disclose the situation to the court regardless of the confidentiality concerns.
Kansas Bar Association's Annotations of Ethics Opinions, 1979-1995, Opinion # 82-44. Disclosure of Client Fraud.
A lawyer shall not knowingly reveal a client's confidence or secret unless permitted under DR 4-101(c), which addresses the intention to commit a crime and the lawyer's ability to prevent that crime. The Code does not impose a duty to investigate or disclose past crimes. A lawyer would have no duty to report a
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client's past crime of fraud. This seems to be in conflict with the above American Bar Association opinion.
Books, pamphlets
George J. Alexander & Travis H.D. Lewin, THE AGED AND THE NEED FOR SURROGATE MANAGEMENT, self published (1972). [183 pages].
A law review type article with extensive bibliography, beginning on page 165, which draws extensively on the authors' New York and California experiences. The authors call for a Model Statute. 135. Kansas statutes are charted. 33, 39, 47, 51, 55, 85, and 91.
American Bar Association Commission on Legal Problems of the Elderly and Young Lawyers Division's Committee on the Delivery of Legal Services to the Elderly, GUARDIANSHIP OF THE ELDERLY: A PRIMER FOR ATTORNEYS, ABA, 1800 M Street, N.W., Washington, D.C. (1990). [49 pages plus Appendices A-F].
A concise, step by step guide for attorneys who are beginning work in this area or those who haven't worked in the area for a while.
American Bar Association Commission on Legal Problems of the Elderly and Young Lawyers Division's Committee on the Delivery of Legal Services to the Elderly, THE LAW AND AGING RESOURCE GUIDE, ABA, 1800 M Street, N.W., Washington, D.C. (1981). [334 pages].
This guide is intended to be of assistance to legal counsel and elderly in contacting relevant resources within their state. Kansas is listed in alphabetical order but the listings are often outdated. The work provides a place to start if looking for such resources but is no longer reliable.
Sia Arnanson, Ellen Rosenzweig, Andrew Koski, THE LEGAL RIGHTS OF THE ELDERLY, Practicing Law Institute, New York, N.Y. (1995). [319 pages].
Written for the lay audience in an easy-to-read question and answer format, the guide offers a description of a wide range of assistance programs available to the elderly. It is a good resource which provides the information necessary to apply for and receive the benefits for which this targeted group is entitled. The concern of conservator exploitation might require research and discovery through numerous Kansas state agencies. Addresses of these agencies are listed on pages 235 (Kansas Department of Aging), 241 (Area 6 Office of the AARP), 244 (Kansas Insurance Department), 254 (Long-term Care Ombudsman Program,) 260 (Kansas Income Support and Medical Services Office, 269 Medicare Carriers), 279 Medicare Peer Review Organizations, 286 Durable Medical Equipment Regional Carriers), and 290 (Veterans' Affairs Offices). Guardianship is discussed briefly at 226.
Robert N. Brown, AN AMERICAN CIVIL LIBERTIES UNION HANDBOOK, THE RIGHTS OF
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OLDER PERSONS: THE BASIC GUIDE TO AN OLDER PERSON'S RIGHTS, ACLU, Avon Books, Mail Order Dept., 250 West 55th Street, New York, N.Y. 10019 (1979). [434 pages].
As would be expected, the focus of this book is on the legal rights lost or affected when a guardian/ conservator is appointed for an elderly person, as well as the due process rights they retain throughout the various stages of this civil action process. 277-326.
Robert N. Brown, AN AMERICAN CIVIL LIBERTIES UNION HANDBOOK, THE RIGHTS OF OLDER PERSONS: THE BASIC GUIDE TO AN OLDER PERSON'S RIGHTS, ACLU, Southern Illinois University Press, Carbondale and Edwardsville, Ill. (1989). [413 pages].
The second edition of this book is "completely revised and up-to date." Taking its cue from the first edition, the authors reflect the ten years of law since its publication. Conservator is defined on page 334. Approaches to avoid guardianship/ conservatorship are discussed beginning on page 349. Adult protective services is added. 360-4. Notes following the chapters and Appendices are helpful and include Kansas references.
Edmund F. Dejowski, JD, Ph.D., PROTECTING JUDGMENT-IMPAIRED ADULTS: ISSUES, INTERVENTIONS AND POLICIES, The Hayworth Press, Inc., New York, N.Y. (1990). [175 pages].
An excellent collection of writings by authors from various disciplines on topics leading to the appointment of guardians or conservators. Approaches to and instruments for identifying mental capacity, court responsibility for guardian abuse of elders, recommended alternatives for guardianships, possible abuse by guardian/conservators that are ignored by both guardians ad litem as well as court personnel, and material abuse are explored. Of special interest is the article by Kansas authors Lloyd Hull, Gary E. Holmes and Ronald H. Karst on Managing Guardianships of the Elderly: Protection and Advocacy as Public Policy, found on page 145. Each article contains its own references, which provide additional reading for those interested.
Thomas T. Dunn, A LAWYER'S ADVICE TO RETIREES, Doubleday & Co., Inc., Garden City, N.Y. (1981). [241 pages].
The author outlines what anyone needs to "beware of" from their professional and family "advisers" as they mature. Likely situations are set out in Exhibits and Rules. The author's overriding recommendation is to "retain your financial independence as long as practicable." xiii. "Guardian angels" are discussed in chapters 2 and 3. I found this work confusing.
Lawrence A. Frolik & Alison P. Barnes, ELDERLAW, SELECTED STATUTES AND REGULATIONS, The Michie Co., Charlottesville, Va. (1992 Ed.). [408 pages].
Contains the optional short form Model Statute for Guardianship and Conservatorship, which among other things provides more protection for the proposed ward/conservatee and ward/conservatee by
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establishing an oversight commission in Section 5. 372.
Lawrence A. Frolik & Melissa C. Brown, ADVISING THE ELDERLY OR DISABLED CLIENT, Rosenfeld Launer Publications, 910/920 Sylvan Avenue, Englewood Cliffs, N.J. 07632-9923 (1992 & Supp. 1993). [900 + pages with a 300-page supplement].
Chapter 17 deals with guardianship/conservatorship from its historic basis as well as its procedural matters, duties, and limitations. The author characterizes the Kansas statutory approach of dividing conservatorships from guardianships as a means to tailor a ward's (conservator's) particular needs, 1717, providing a needed service in cases where a more restrictive guardianship of the person would "unduly interfere with the ward's personal autonomy." Good glossary. Indexed. Kansas statutes NOT included. Available for $135.
Lawrence A. Frolik & Richard L. Kaplan, ELDER LAW IN A NUTSHELL West Publishing Co. (1995). [429 pages].
As the name implies, a succinct but highly informative resource for general information in the elder law area. Chapter 9 focuses on guardianship and conservatorship. Chapter 16 covers elder abuse and includes "exploitation", the term used to describe financial abuse. It is especially helpful in discussing reasons why such abuse occurs.
Sally B. Hurme, STEPS TO ENHANCE GUARDIANSHIP MONITORING, American Bar Association, 1800 M Street, N.W., Washington, D.C. 20036 (1991). [89 pages + tables & charts].
This report was prepared by the Guardianship Monitoring Project, American Bar Association, Commission on the Mentally Disabled, 1800 M Street, N.W. Washington, D.C. 20036 (202)331-2240. Publication made possible by a grant from the State Justice Institute to the ABA's Fund for Justice and Education in 1991. Comprehensive report establishing the need for and a step-by-step approach to regular monitoring of guardianships.
Of special interest to Kansas lawyers is the report from the 28th Judicial District (Saline and Ottawa counties, Kansas) where the judge interviewed suggested that his lack of review of the guardianships in this rural area stemmed from his comfort in relying on "the community to bring to his attention any problems that might be happening to a ward." 89. Charts comparing the various state statutes at page
102. A definition of incapacity according to Kansas Statute is at 95.
Judicial Council of California, HANDBOOK FOR CONSERVATORS, Judicial Council of California, 303 Second St. South Tower, San Francisco, CA 94107-1366 (1992).
This work was recommended by Stuart D. Zimring to the "multiple recipients of list ELDERLAW" with the following comment: "The book is literally required reading for all conservators here. I think it is an excellent work; written in as plain English as one can get given the subject. It has forms, sample
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accountings, etc." While this author has not had the opportunity to review the work, Mr. Zimring's remarks are certainly glowing.
Zimring suggests that, within California, copies can be obtained for $20.00 from any Superior Court Clerk's office. Outside California, it can be ordered by writing: Handbook for Conservators, Judicial Council of California, Administrative Office of the Courts, Attn.: Ron Points, 303 Second St. South Tower, San Francisco, CA 94107-1366 (415) 396-9100. Please make checks for $23.00 to: State of California.
There is a companion videotape (less than 1 hour in length) prepared by the Alameda Bar Association that Mr. Zimring also recommends as "quite effective" and adds that he believes "that in northern California attending a screening of the video is mandatory before Letters will be issued." Order by calling (510) 893-7160. The tape costs $59.95.
Kansas Department on Aging, LEGAL ASSISTANCE FOR THE ELDERLY: A HANDBOOK FOR ATTORNEYS, KDOA, Docking State Office Bldg., 122-S, 915 S.W. Harrison, Topeka, Kan. 666121500 (Sept. 1990). [56 pages with Appendix].
The manual is designed to assist the private attorney in representing elderly clients. Guardianship and conservatorship is discussed in section E beginning on page 34. No mention is made of elder exploitation or of removal of a conservator for cause.
Kansas Department on Aging, LEGAL GUIDE FOR SENIOR CITIZENS, KDOA, Docking State Office Bldg., 122-S, 915 S.W. Harrison, Topeka, Kan. 66612-1500 (3d Ed. 1990) [60 pages].
Underwritten by KPL, this large print, indexed, work is geared toward senior citizens with a question and answer format. In the section entitled Your Rights, the issues of elder exploitation and conservatorships are addressed.
Pat M. Keith & Robbyn R. Wacker, OLDER WARDS AND THEIR GUARDIANS, Praeger Publishers, (1994). [230 pages].
An excellent 230-page resource exploring virtually every aspect of the guardianship process. The authors' empirical research, although not from Kansas, should have meaning to Kansans due to its proximity (Iowa, Missouri and Colorado). Chapters deal with literature review, assessing incapacity, characteristics of wards and their guardians, what it means to be a guardian, role strain, guardianship legislation, a comparison of guardian reform statutes in the three states, and recommended practices and outcomes for older prospective wards. The resource is indexed and includes a ten-page reference section for further reading.
Joan M. Krauskopf, Robert N. Brown, Karen L. Tokarz, Allan D. Bogutz, ELDERLAW: ADVOCACY FOR THE AGING, West Publishing, St. Paul Minn. (1993). [1137 pages, 2 volumes].
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This extensive work on virtually every issue affecting the elderly is indexed with tables. In chapter 9, the authors define conservatorship, ¤9.5, and provide a sample instructions to conservators that discusses conservator duties and responsibilities, ¤9.13. Discovery, ¤9.23, and preventing abuse and protecting the ward are also examined, ¤9.27. This is an excellent resource for lawyers working in the elder law area.
Jim Lackey, A GUIDE TO KANSAS LAWS ON GUARDIANSHIP AND CONSERVATORSHIP, Kansas Advocacy and Protective Services, Inc. (1995). [17 pages].
This succinct guide answers virtually every question about conservatorships in Kansas and is an indispensable guide for Kansas practitioners as well as the conservators they represent. Specifically identifies the functions and services of a conservator at ¤15 on page 11 and step-by-step procedures in ¤16 from pages 12 through 14. ¤18 discusses the termination of a conservator beginning at page 14. This is a handy, quick reference with an outline at the beginning to assist the reader in finding the appropriate sections. It is available through all KAPS offices.
Legal Counsel for the Elderly, DECISION-MAKING, INCAPACITY, AND THE ELDERLY, A PROTECTIVE SERVICES PRACTICE MANUAL, Legal Counsel for the Elderly , 601 E Street, N.W., Washington, D.C. 20049 or P.O. Box 96474, Washington, D.C. 20090-6474 (1987). [186 pages].
Chapters 6 deals with Guardianship and Conservatorships. Table 6 outlines the various guardianship statutes. There is an excellent discussion of Adult Protective Services in Chapter 7 with an insightful Chart outlining possible indicators of abuse, including financial abuse. A Table of Kansas Cases is on page 140 and Table of Kansas Authorities on page 170. The work is sponsored by AARP.
Legal Counsel for the Elderly, THE ELDERLY LAW MANUAL, Legal Counsel for the Elderly , 601 E Street, N.W., Washington, D.C. 20049 or P.O. Box 96474, Washington, D.C. 20090-6474 (1982 & Supp. 1983). [932 pages + 106 page supplement].
Sponsored by the National Retired Teachers Association and AARP, this two-volume work limits its scope to benefits programs for the elderly. It does NOT deal with guardianship/conservatorship.
Robert V. Mackey, GUARDIANSHIP AND THE PROTECTION OF INFANTS, Oceana Publications, Inc., Dobbs Ferry, N.Y. (1957). [94 pages].
This is the second edition of the earlier work on this topic, GUARDIANSHIP LAW, entry below. In light of the numerous reforms in this area of law, look to other sources for more current information.
Robert V. Mackey, GUARDIANSHIP LAW, Oceana Publications, Inc., Dobbs Ferry, N.Y. (1948). [67 pages].
This work is concise but outdated. I would not rely on the information presented.
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Harry S. Margolis, ELDERLAW FORMS MANUAL, Little, Brown and Co., Boston, Mass. (1996). [One volume, loose-leaf].
Meant to supplement the following entry, this three-ring binder provides sample forms for guardianship in Chapter 7. Anyone using these forms should check the Kansas statutes for accuracy in this jurisdiction.
Harry S. Margolis, General Ed., THE ELDERLAW PORTFOLIO SERIES, Little, Brown and Co., Boston, Mass. (1996). [1193 pages to date].
Designed in a 3-ring binder format, each section is independent of the others and released as completed. Reader should refer to Portfolio 7 for a complete discussion of guardian/ conservatorship. Also of interest is the author's treatment of guardianship/conservatorship over the former client. 1-20. A sample guardianship and conservatorship handout is presented at 1-43. Annex A1-6, 1-67, is an excellent summary of often confusing terms. Appendix 1-1 offers a listing of important resources for the elder lawyer. Although Kansas has yet to adopt it, the Uniform Guardianship and Protective Proceedings Act is reprinted at 7-54 and might be of interest. The page numbering system is confusing but the content is excellent. Available for $79.95. Forms in book are available on disc for $29.00. Both may be ordered by calling (800) 223-1940.
Linda Josephson Millman, LEGAL ISSUES AND OLDER ADULTS, ABC-CLIO, Inc., 130 Cremona Drive, P.O. Box 1911, Santa Barbara, Cal. 93116-1911 (1992). [273 pages].
A part of a series of works called Choices and Challenges, this book contains a section on personal autonomy for the older adult. The guardian/conservatorship process, discussed in general on pages 2326, is easy to read (large print) and easy to understand. The book is indexed and contains a 120-page resource section on a variety of elder law issues.
National Senior Citizens Law Center, CURRENT ISSUES IN SENIOR LAW: A MANUAL FOR ATTORNEYS AND PARALEGAL ADVOCATES, NSCLC, 1815 H STREET, N.W., SUITE 700, WASHINGTON, D.C. 20006 (1994).
Two sections within this composite of writings on elder law issues are relevant. A. Frank Johns, Vicki Gottlich and Marlis Carson deal with problems of jurisdiction in guardianship/ conservatorship cases in their article, "Guardianship Jurisdiction Revisited: A Proposal for a Uniform Act." 89. Such problems occur in instances when the proposed ward/conservatee has ties to more than one state. The authors propose that a uniform guardianship jurisdiction act, much like the Uniform Child Custody Jurisdiction Act, be adopted to protect incapacitated adults (not just elders) from jurisdictional conflict of laws and over-reaching by the courts.
In "The Role of Counsel in Adult Guardianship Proceedings," 183, Vicki Gottlich explores the role of
the attorney--"zealous advocate?" or guardian ad litem?--who represents the proposed ward/conservatee in guardianship/conservatorship actions. The author compares numerous statutes (not Kansas) and concludes that many state statutes need to be revised to include durable powers of attorney (as alternatives to guardianship/conservatorship) and a guarantee that the proposed ward/conservatee is both present at the initial hearing and represented by counsel.
National Senior Citizens Law Center, REPRESENTING OLDER PERSONS: AN ADVOCATES MANUAL, NSCLC, 1815 H Street, N.W., Suite 700, Washington, D.C. 20006 (1990 Ed.). [142 pages].
Vicki Gottlich focuses on the problems inherent in our system in Guardianships and their Alternatives: Legal Services and the Role of the Advocate. She addresses the current trends and developments in the area as well the role of the attorney in the process.
Note: the 1985 edition covers virtually the same topic beginning on page 77. The author of that article is Neal Dudovitz.
James T. O'Reilly, THE LAWYER'S GUIDE TO ELDER INJURY AND ACCIDENT COMPENSATION, American Bar Association, 750 North Lake Shore Drive, Chicago, Ill. 60611 (1995). [284 pages].
An unlikely source, this work provides interesting insight into elder abuse and exploitation in Chapter
13.
John J. Regan, THE AGING CLIENT AND THE LAW, Columbia University Press, New York, N.Y. (1990). [143 pages].
Chapter 9 deals with intervention for the frail elderly and discusses the various points where exploitation can arise. A checklist for evaluating an elderly client's capabilities is at 126.
John J. Regan, J.S.D., YOUR LEGAL RIGHTS IN LATER LIFE, Scott, Foresman and Co., Glenview, Ill. (1989). [321 pages].
Author merely mentions that the court can remove a guardian/conservator who fails to perform his or her duties properly. 239. Resource is written in an understandable question and answer format.
Nancy Schmidt Roush, KANSAS ESTATE ADMINISTRATION HANDBOOK, 6th Edition, Kansas Bar Association, P.O. Box 1037, Topeka, Kan. 66601 (1993). [One volume, loose-leaf].
A must for Kansas practitioners, this supplemented handbook includes forms to use for submitting the annual report for a guardian and the verified accounting of a conservator.
Winsor C. Schmidt, Jr., GUARDIANSHIP: THE COURT OF LAST RESORT, Carolina Academic
Press, Durham, N.C. (1995). [270 pages].
As the title implies, this work takes a fairly cynical look at guardianships for the elderly (conservatorships are included by implication). He indicates that while Kansas and several other states require that alleged incompetents receive legal representation, in fact only 75-90% actually are represented. The incidence of limited guardianship in four states (Cal., Ind., Kan. and Mich.) is 3% or less. 237. The author suggests that Kansas statutes do not have any provision for public guardianship. 64
65. Chapters of particular interest to Kansas lawyers are Chapter 9, Recommended Judicial Practices in Guardianship: Proceedings for the Elderly, and Chapter 8, Accountability of Lawyers in Serving Vulnerable, Elderly Clients.
Winsor C. Schmidt, PUBLIC GUARDIANSHIP AND THE ELDERLY, Ballinger Publishing Company, Cambridge, Mass. (1981). [ 268 pages].
This indexed work compares and analyzes current (as of 1981) state public guardianship statutes.
Irving J. Sloan, RIGHTS & REMEDIES FOR SENIOR CITIZENS, LAW FOR THE LAY PERSON, Oceana Publications, Inc., Dobbs Ferry, N.Y. (1992). [160 pages].
Including a definition of exploitation on page 93, this work explores the causes of exploitation, adult protective services laws, the role of the public agency and the least restrictive alternative. The author concludes that advocates for the protection of the elderly whose lives are in danger due to exploitation must use current laws as they exist to accomplish their objective. Appendices list resources lay people can turn to for assistance, including: Congressional committees, regional and state offices of aging, national legal organizations, agencies and organizations, and lawyer referral services.
Peter J. Strauss, Robert Wolf and Dana Shilling, AGING AND THE LAW, 1991 SUPPLEMENT, Commerce Clearing House, Inc., 4025 West Peterson Avenue Chicago, Ill. 60646 (1990 and supp. 1992). [892 pages + 318 page supplement].
Chapter 17 provides excellent discussion of the various protective services in the Uniform Probate Code and provisions in state statutes. Kansas is listed at 361. Guardianship and Conservatorship laws are compared with special notice of what the author feels is positive about each jurisdiction's statutes. Kansas is mentioned at 399. Readers interested in case law from other states should turn to page 415. Guardianship/conservatorship as it relates to divorce is covered. Removal of guardians/conservators is addressed specifically at 424.
Supplement Chapter 5, 115-132, deals with adult protective services and cites recently revised statutes and recent cases that wrestle with the balancing of autonomy of and protection for the individual within the guardian/conservatorship process. No citations from Kansas are listed. Available for $100.00 by calling (800) 248-3248.
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Hasseltine Byrd Taylor, LAW OF GUARDIAN AND WARD, University of Chicago Press, Chicago, Ill. (1935). [194 pages].
Written over sixty years ago, this treatise provides a good look back at the guardian/conservatorship process. The work is indexed.
Johnathan A. Weiss, Ed., LAW OF THE ELDERLY, Practicing Law Institute, 810 Seventh Ave., New York, N.Y. 10019 (1977). [383 pages].
Chapter 10, Protective Services for the Elderly: The Limits of Parens Patriae, written by Peter M. Horstman, explores in depth the guardianship process, its pitfalls and its consequences for the elderly ward. Available for $25.00. Order # D3-0141.
William R. Wishard, LL.B., RIGHTS OF THE ELDERLY & RETIRED: A PEOPLES' HANDBOOK, Cragmont Publications, P.O. Box 27496, San Francisco, Cal. 94127 (1978). [237 pages].
The author discusses conservatorship as a means of safeguarding the elderly person and his/her estate "without the stigma of incompetency." This characterization is misleading for residents of Kansas because a finding of incompetence is required before a conservator may be appointed by a Kansas court.
J. G. Woerner, A TREATISE ON THE AMERICAN LAW OF GUARDIANSHIP OF MINORS AND PERSONS OF UNSOUND MIND, Little, Brown & Company, Boston, Mass. (1897). [581 pages].
Part II of the treatise deals with guardianship over persons of unsound mind (as compared with minors) meaning all who are mentally incapable to protect themselves. Gives good historical background to early Kansas law citing general statutes of 1889. This work is not relevant to current concerns. The work is indexed.
Journals
Of Special Note: The Elder Law Journal, published by the University of Illinois College of Law, University of Illinois at Urbana-Champaign, 504 East Pennsylvania Avenue, Champaign, IL 61820, began publishing in 1993. Is available for $25.00 per volume year (spring and fall).
Alison P. Barnes, Beyond Guardianship Reform: A Revaluation of Autonomy and Beneficence for a System of Principled Decision-making in Long Term Care, 41 Emory Law Journal 633 (1992).
An extensive evaluation of guardianships. The author advocates a unified system of proxy decision-making, the use of limited guardianships, strict adherence to due process requirements, and oversight.
A. Paul Blunt, Financial Exploitation of the Incapacitated: Investigation and Remedies, 5 Journal of
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Elder Abuse and Neglect 19 (1993).
Citing financial exploitation as one of the most permanently devastating and overlooked forms of elder abuse, the author believes that the observation of symptoms and patterns of behavior in the elderly will assist practitioners in the identification of the many forms exploitation may take. Investigative techniques using documents can assure that cases can be brought to the attention of the appropriate authorities and judicial and non-judicial remedies can be explored.
Lawrence A. Frolik, Abusive Guardians and the Need for Judicial Supervision, 130 Trusts & Estates 41 (July 1991).
While this article focuses on the physical abuse and neglect of the elderly, the solutions recommended-written and/or videotaped materials and qualified personnel to assist the guardian, guardian "hotlines," better judicial supervision including more thorough review of periodic reports, and court visitors--could be equally effective in preventing financial exploitation.
Vicki Gottlich, Zealous Advocacy for the Defendant in Adult Guardianship, 29 Clearinghouse Review 879 (Jan. 1996).
This article was not reviewed because the publication was at the binders and not available until 5/21/96.
Paula L. Hannaford & Thomas L. Hafemeister, The National Probate Court Standards: The Role of the Courts in Guardianship and Conservatorship Proceedings, 2 Elder Law 147 (Fall 1994).
The authors provide an in depth look at the Standards which were published in 1994 with the following purposes in mind: ensuring that the elderly receive the services that they need, protecting them from unwarranted restrictions on their freedom and autonomy, and responsibly maximizing and conserving the resources of the judiciary. 149.
Penelope A. Hommel, Lauren Barritt Lisi, Model Standards for Guardianship: Ensuring Quality Surrogate Decision Making Services, 23 Clearinghouse Review 433 (Summer 1989).
This article focuses not on the need for guardians but on the need for standards for guardians once they are appointed. With the increase in agency and professional service providers--both public and private, nonprofit and for-profit--receiving compensation, studies show an increase in exploitation. The authors advocate the adoption of the model standards released by the Subcommittee on Housing and Consumer Interests, House Select Commission on Aging, 100th Congress, 2d Session, Surrogate Decisionmaking for Adults: Model Standards to Ensure Quality Guardianship and Representative Payeeship Services, A Report Presented by the Chairman (Comm. Print 100-705) (1988). The Standards are presented and discussed in depth.
Peter M. Horstman, Protective Services for the Elderly: The Limits of Parens Patriae, 40 Missouri
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Law Review 215 (1975).
Included in LAW OF THE ELDERLY, Practicing Law Institute, supra p. 35, this article explores in depth the guardianship process, its pitfalls and its consequences for the elderly ward.
Sally B. Hurme, Limited Guardianship: Its Implementation Is Long Overdue, 28 Clearinghouse Review 660 (Oct. 1994).
A proponent of limited guardianships, the author reviews the history of tailored orders, summarizes recent legislative efforts and supportive appellate decisions in the various jurisdictions, and points out that its implementation is lagging far behind.
Kansas is classified as a "moderate tailoring" state in Table A at 664, yet according to a 1994 survey, only utilizes its power to tailor in 1% of the guardianships that come before a Manhattan, Kansas court.
666. The author explores possible barriers to the implementation of tailored orders and cites judicial reluctance as a primary cause. 667. A good explanation of how limited orders work as well as proposed steps for advocates conclude the article.
The work is very interesting reading for those who support the "least restrictive" means to protect an elderly person.
A. Frank Johns, Vicki Gottlich and Marlis Carson, Guardianship Jurisdiction Revisited: A Proposal for a Uniform Act, 26 Clearinghouse Review 647 (Oct. 1992).
Included in National Senior Citizens Law Center, CURRENT ISSUES IN SENIOR LAW: A MANUAL FOR ATTORNEYS AND PARALEGAL ADVOCATES, supra p. 31, dealing with problems of jurisdiction in guardianship/conservatorship cases where the proposed ward/conservatee has ties to more than one state. The authors propose that a uniform guardianship jurisdiction act, much like the Uniform Child Custody Jurisdiction Act, be adopted to protect incapacitated adults (not just elders) from jurisdictional conflict of laws and over-reaching by the courts. Lists Kansas as the only state to follow the Restatement (Second) Conflict of Laws in its treatment of guardianship jurisdiction, which gives the courts power to exercise jurisdiction when the incapacitated adult is "domiciled" or simply "present" in the state. 648.
Margaret K. Krasik, The Lights of Science and Experience: Historical Perspectives on Legal Attitudes toward the Role of Medical Expertise in Guardianship of the Elderly, 33 American Journal of Legal History 201 (July 1989).
This article provides a thorough review of the history of guardianship.
Clifton B. Kruse, Jr., Contracts to Devise or Gift Property in Exchange for Lifetime Home Care-Latent and Insidious Abuse of Older Persons, 12 Probate Law Journal 1 (1994).
The article explores an all too common problem where an elder trades or gives away assets in exchange for the promise from a caretaker that he/she will not be institutionalized or "will always be taken care of."
Lauren B. Lisi and Anne M. Burns, Mediation in Guardianship Cases: A Promising Alliance, 26 Clearinghouse Review 644 (Oct. 1993).
The authors discuss the Guardianship Mediation Project sponsored by the Center for Social Gerontology and funded by the National Institute for Dispute Resolution. There are many advantages to mediation in the adult guardianship process. Mediation can offer a way for parties to explore solutions that will meet the needs of the older or disabled adult with minimal limitations on autonomy. 645.
Susan Miler and Sally B. Hurme, Guardianship Monitoring: An Advocate's Role, 25 Clearinghouse Review 654 (Oct. 1991).
The problem of lack of supervision of guardianships/conservatorships is explored. The authors conclude that more monitoring is necessary. Proposed solutions include the use of volunteers to serve in the capacity of court visitor, court auditor or record researchers. A pilot project utilizing each of the above have shown positive results. An unscrupulous attorney or conservator familiar with the backlog in a particular court may take advantage of slow or superficial monitoring to charge unduly large fees or make transactions that are not permissible without court review. 657. The authors encourage advocates for the elderly to join forces to improve guardianship procedures. 661.
Annina M. Mitchell, Involuntary Guardianship for Incompetents: A Strategy for Legal Services Advocates, 12 Clearinghouse Review 451 (Dec. 1978).
The focus of this article is on mental incompetency, regardless of age. The author points to the same pitfalls in the guardianship process that are encountered by the elderly and notes that if the guardianship/ conservatorship was due to a condition created by advanced years, it is unlikely that the ward/ conservatee would ever be able to persuade a court that the reason for the guardian/conservatorship had disappeared. 455 at n. 42. She cautions against the use one's status as the key element for determining incompetence. 456. Written before many of the protective statutes were enacted, the article gives many vivid examples of abuse of the elderly.
Ken Ransford, Financial Abuse of Elderly Adults, 23 The Colorado Lawyer 1077 (1994).
While stressing Colorado's reporting statute, the article has merit for Kansans who deal with "at-risk" adults, defined as "any individual at least eighteen years of age who is susceptible to mistreatment and lacks sufficient understanding to make responsible decisions regarding his or her affairs." Colorado has a toll-free number to report elder abuse, an interesting approach.
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Of special interest is a list of common fact patterns that may indicate financial abuse of an elderly adult, 1077-8, and steps an attorney can take to protect an elderly client from such abuse.
Winsor C. Schmidt, Quantitative Information about the Quality of the Guardianship System: Toward the Next Generation of Guardianship Research, 10 Probate Law Journal 61 (1990).
The author summarized twelve studies of the guardianship process from around the country and concluded that older people under guardianship do not seem particularly homogeneous. 79.
Michael R. Schuster & Bruce B. Vignery, Surrogate Decisionmaking under the Omnibus Budget Reconciliation Act of 1987: A Flawed Remedy?, 24 Clearinghouse Review 572 (Oct. 1990).
Setting out a fictitious scenario, the author raises questions about surrogate decisionmaking which arise under OBRA-87. He cautions that guardianship/conservatorship should be utilized only as a last resort.
573.
Roger B. Sherman, Guardianship: Time for Reassessment, 49 Fordham Law Review 350 (1980).
This article outlines the procedural safeguards that should exist at a guardianship hearing, argues that the guardian should be permitted to perform only those functions that the proposed ward is clearly incapable of performing, and that the guardian should develop a treatment plan to assist the ward in overcoming the deficiency which necessitated the appointment. 351-2. Very interesting reading.
Peter J. Strauss, Before Guardianship: Abuse of Patient Rights Behind Closed Doors, 41 Emory Law Journal 761 (1992).
A practicing lawyer in the area of guardianships for twelve years, Strauss points to what he calls a "flaw in the guardianship process." The attorney who is appointed by the court to protect the ward, generally turns out to be an officer of the court whose role is to determine the best interests of the ward. This forces the attorney into a conflict of interest position.
Phillip B. Tor & Bruce D. Sales, A Social Science Perspective on the Law of Guardianship: Directions for Improving the Process and Practice, 18 Law & Psychology Review 1 (1994).
This article was not reviewed because the publication was at the binders and not available until 6/4/96.
Lu-in Wang, Anne M. Burns, Penelope A. Hommel, Trends in Guardianship Reform: Roles and Responsibilities of Legal Advocates, 24 Clearinghouse Review 561 (Oct. 1990).
While the elderly often face a comprehensive loss of rights, due process protections have often been inadequate. 561. Citing the trend in legislative reform as moving from paternalism to individual autonomy, the authors identify the change in definition of incapacity which focuses on functional
capacities and incapacities and the preference for limited guardianships. Id. While the new guardianship laws are a start, advocates must continue to advance the rights and interests of their proposed wards/ conservatees. 567.
Erica Wood, Lori A. Steigel, Charles P. Sabatino, Stephanie Edelstein, Overview of 1992 State Law Changes in Guardianship, Durable Powers of Attorney, Health-care Decisions, and Home Equity Mortgages, 26 Clearinghouse Review 1277 (Jan. 1993).
Reviews pertinent law changes in the identified areas. Kansas is not mentioned.
George H. Zimny, Barbara J. Gilchrist, George T. Grossberg, Sung Chung, Annual Reports by Guardians and Conservators to Probate Courts, 3 Journal of Elder Abuse & Neglect 61 (1991).
Since the powers granted to guardians/conservators by the courts may be used to abuse rather than to protect wards/conservatees, the guardianship statute in Missouri and some other states (including Kansas) requires annual reports by guardians and a review of the report by the court. To study the reporting/reviewing process, public court records were examined. It was found that while all 318 financial reports due were filed, only 52 of the 318 personal status reports due were filed. In addition, the financial reports were thoroughly reviewed by the courts or their representatives but the status reports were not. Special attention to status reports is necessary to strengthen the protective function of guardianship.
Student Written Law Reviews
Comment, Garry J. McCubbin, Conservatorship: Mentally Competent Voluntary Conservatee Forfeits Power to Contract, 19 Washburn Law Journal 572 (1980).
The author discusses rights retained by a voluntary conservatee in light of Nolte and Mayberry, and concludes that a voluntary conservatee does not retain the power to contract. He cautions third parties regarding their dealings with conservatees, unless their conservators and, where required, the courts approve the transactions. 579.
Note, Mandatory Reporting of Elder Abuse: A Cheap but Ineffective Solution to the Problem, 14 Fordham Urban Law Journal, 723 (1986).
Providing a critical review of the mandatory reporting statutes in most jurisdictions, the author speaks out against New York's adopting such a statute. The author concludes that these statutes do more harm than good for the elderly, increasing age discrimination in society, limiting the elder's freedom to control his or her own life, and providing an ineffective response to the problem which precludes the adoption of more effective measures. 734.
Bibliographies
Brian Raphael, Wendy Nobunaga, and Lisi Moske, Gerontology and the Law: A Selected Bibliography 1991-94 Update, 69 Southern California Law Review 287 (Nov. 1995).
An update of a bibliography previously published in 1980, this 153-page bibliography is an extensive list of books, reports and articles of potential interest to those who work in the field(s) of gerontology and the law. Sections on guardianships and elder abuse are included.
Edward Stanek, The Elderly in Modern Society, Their Legal Status & Human Rights: A Select Bibliography, Public Administration Series Bibliography # P 2610 (Mar. 1989).
This 15-page bibliography was available at the time of publishing for $3.75 through: Vance Bibliographies P.O. Box 229, Monticello, Ill. 61856.
Newsletters
American Association of Retired Persons (AARP), ELDERLAW EXPRESS, Legal Counsel for the Elderly, Inc., Washington, D.C.
This regular publication features articles of interest to those who represent our elder population in their legal matters. Its Legal Program Coordinator is Ayn Hartman Crawley and its Publication Coordinator is Sally B. Hurme. The "Express" is available through the AARP, 601 E Street, N.W., Washington, D.C. 20049. Telephone: 202/434-2151.
American Bar Association, Mental & Physical Disability Law Reporter, 1800 M Street N.W., Washington, D.C. 20036-5886.
Published bi-monthly, the magazine covers a range of mental and physical disability issues, contains updates of state statutes and developments in regulations, and discusses recent case law. Available for $185.00 by calling (202) 331-2240.
Harry S. Margolis, Ed., The Elderlaw Report, Little, Brown and Co., 34 Beacon Street, Boston, Mass. 02108.
Published eleven times per year, the newsletter contains practice tips, book reviews, and articles on a wide range of elder law topics. Available for $99.00 per year by calling (617) 859-5573.
Newspaper and magazine articles
Fred Bayles & Scott McCartney, Guardianship of the Elderly: An Ailing System 1, Associated Press
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Special Report, Sept. 1987.
When 2,200 guardian files nationwide were reviewed it was found that in 44%, the proposed ward had NO representation, in 49% of the cases the proposed ward was NOT at the hearing, and in 25% of the cases NO hearing was held.
Denise M. Tolpolnicki, The Gulag of Guardianship, Money Magazine, Mar. 1989 140.
This article provides an excellent discussion of the problem of financial exploitation of the elderly, complete with examples, successful programs for assisting the elderly with money management without guardianship/conservatorship, standards for guardian/conservators, suggested safeguards once a guardianship/conservatorship has been appointed, and an overview of the law in the 50 states.
Videos
Legal Counsel for the Elderly, Inc., What Do I Do Now? Tips for Guardians
While this author was not able to review this video, publicity describes the product as an 8-minute VHS video for new guardians. The video is NOT a list of do's or don'ts. It is a true-to-life vignette designed to encourage new guardians to ask questions and seek support services to better care for their wards. Video comes with 200 Client Guides for use with groups. Available for $15.00 from Legal Counsel for the Elderly, Inc. P.O. Box 96474, Washington, D.C. 20090-6474.
Other Sources
5 Bancroft's Probate Practice (2d Ed. and 1973 Supp.), Bancroft-Whitney, San Francisco, Cal. (1950). [Indexed].
¤ 1439, 413. Removal of Guardian--In General.
¤ 1440, 415. Temporary Removal, Suspension or Injunction.
¤ 1441, 416. Grounds.
¤¤ 1444-50, 427-438. Liabilities of Guardians.
Kansas law is not covered by this six volume work, and the discussions are not particularly relevant in light of the numerous changes in statutes.
Samuel E. Bartlett, 2 Bartlett Kansas Probate Law and Practice, Vernon Law Book Co., Kansas City, MO (Rev. Ed. 1953).
Chapter 43 Guardianship.
Chapter 55 Guardianship Proceedings.
Once the "Bible" of Kansas law in this area, the work is mainly of historical interest. It does
contain pertinent Kansas cases prior to 1953.
Conferences
American Bar Association, National Conference of the Judiciary on Guardianship Proceedings for the Elderly (1986).
Practicing Law Institute, Elder Law Institute: Representing the Elderly Client of Modest Means, Cochairs Barbara J. Collins and William A. Dombi (June 1995).
Section IV, submitted by Michael R. Schuster, is a reprint of Protective Services Training Module, produced by Legal Counsel for the Elderly, 601 E Street, N.W., Washington, D.C. 20049, (202) 4342120. This comprehensive work was made possible by a grant from the Administration on Aging, Department of Health and Human Service in 1992. It contains numerous Advocacy Tips and suggests that when dealing with the elderly, one should look to the "least restrictive alternative" to meet the "actual needs of the ward." The article strongly advocates the use of limited guardian/conservatorships.
Associations and Agencies
American Bar Association Commission on Legal Problems for the Elderly
1800 M Street, N.W.
Washington, D.C. 20036.
Parent organization of NAELA, below, the Commission deals with issues affecting the elderly.
Kansas Department on Aging
Docking State Office Building, 150 915 S.W. Harrison Topeka, Kansas 66612 Phone: (913) 296-4986 Toll free: 1-800-432-3535 TDD: 1-800-766-3777
National Academy of Elder Law Attorneys
655 N. Alvernon Way, Suite 108 Tucson, Arizona 85711 Phone: (602) 881-4005 $175.00 annual dues. Services include a directory of elder law attorneys nationwide, newsletter, regional seminars, adoption of public policy resolutions, surveys and information of interest to membership.
National Guardianship Association
1604 N. Country Club Road Tucson, Arizona 85716-3195
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(520) 881-6561
(520) 325-7925 (FAX)
(Annual dues for attorneys are $125.00 per year. Membership includes attorneys, professional guardians,
and interested persons.
Internet and Email Sites
http://www.ELDERLAW@LISTSERV.ARIZONA.EDU (open only to members of the National Academy of Elder Law Attorneys)
neln.org Index Page: Elder Abuse and Neglect
neln.org Index Page: Nursing Homes and the Rights of Residents
neln.org Bibliography: Elder Abuse in the Institutional Setting (Christine L. McDaniel, 05/97)
neln.org Bibliography: Elder Abuse Prosecution and Prevention (A Layperson's Perspective) (Mark Kiefer, 12/00)
Index Introduction | Definitions | Scope of the Problem | State Response | Other Possible Solutions | Statutes | Cases | Legislative Materials | Administrative and Executive Materials | Secondary Materialshttp://www.neln.org/bibs/sampson.html (37 of 37)11/7/2007 9:11:27 PM
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