Wait, What?! The Trials and Tribulations of an Elder Abuse Lawyer

A blog by Michael LaMay, Esq.

This article in this month’s “hot” online issue marks my somewhat dubious entry into the blogosphere.  The idea of this blog is to attempt to provide some current information, anecdotes, thoughts, opinions, etc., concerning elder abuse issues.  My practice increasingly involves elder financial abuse, as a litigator, court-appointed guardian ad litem and counsel for conservatees.  It is appalling to see what is happening every day to many elder, disabled clients and their families.

2011 MetLife Study of Elder Financial Abuse

…According to the June 2011 MetLife Study of Elder Financial Abuse, “The annual financial loss by victims of elder financial abuse is estimated to be at least $2.9 billion dollars, a 12% increase from the $2.6 billion estimated in 2008.” The Study concludes that, “Despite growing public awareness from a parade of high-profile financial abuse victims, it remains underreported, under-recognized, and under-prosecuted.” (Emphasis added. Download the full study here [pdf]). By the way,  recent high-profile victims include Mickey Rooney and Norman – Spirit in the Sky – Greenbaum.  While the Study is informative, it is just another “study” and it appears that the problem is much worse than statistics show and will only become worse with the onslaught of the elder population explosion…

 No Caregiver Regulation in California – Except in Napa County

…Speaking of studies, an interesting April, 2011 report by the California Senate Office of Oversight and Outcomes “Caregiver Roulette”, reveals that California is one of the small minority of states that does not regulate home caregivers. Currently, there is no statewide law requiring criminal background checks on caregivers. It is particularly disconcerting that the in-home care industry in California is not subject to the same oversight as day care centers or long-term care facilities such as nursing homes.

In litigating elder financial abuse cases against caregivers it’s often striking how many of these cases could have been prevented.  Caregivers run the gamut from caregivers on Craigslist (some of whom turn out have extensive criminal backgrounds) to professional caregivers vetted and supervised by a quality agency.  Starting with the estate planning stage, clients and their families can be advised of proactive measures that can be taken to prevent exploitation by unscrupulous caregivers, such as writing into estate planning documents provisions for geriatric care management/plans.  Agents under Power of Attorneys and conservators can be advised of red flags for potential abuse by caregivers and preventative or corrective measures that can be taken, including obtaining geriatric care assessment evaluations for impaired elders.

I never thought of Napa being a groundbreaking legislative county in California – except maybe as to wine – until now. Napa, as of July 1, 2011, became the first and only county in the state to require all in-home caregivers to be certified, including being screened for criminal background.  The Napa ordinance requires all caregivers, including individuals who don’t work for agencies, to get a permit.  The ordinance also includes relatives of the client who are providing care for compensation or consideration.  Applicants are required to submit paperwork to the Napa-Solano Area Agency on Aging, which contracts with a private background screener to do criminal and other checks. (Link: https://napacaregivers.org/caregiver_info_ordinance.php).

It would seem to be a “no-brainer” that Contra Costa County, like Napa, should not wait for the possibility of a statewide law and pursue a similar ordinance.  Certainly a statewide system would be best and at present the California Legislature is considering two regulation bills but, unlike Napa’s ordinance, they do not attempt to regulate independent workers who find care giving jobs on their own.  I am looking into helping to push for a Contra County ordinance and encourage other local lawyers and professionals to join in such efforts.  I will update my progress in future blogs…

Now That’s a Good Question

… At a recent meeting of the Estate Planning Council of Diablo Valley, an audience member (I think it may have been a financial planner) posed a very astute question along the lines of “how is it that someone who’s caught robbing a grocery store gets prosecuted, but people who steal money from elders often get away with it?”  Unfortunately at this time it’s more of a rhetorical question, but it really gets to the core of the problem with the current sad state of elder financial abuse.  Theft is theft and stealing from a vulnerable elder is almost as reprehensible as it gets.  Yet it seems to be open season for elder financial abuse predators, be they family members, friends, caregivers, financial institutions and advisors, scam artists, or – dare I say – attorneys.  It’s such an equal opportunity crime that even elders are sometimes abusing other elders!

Locally, as throughout the state, the courts, District Attorney, Adult Protective Services and other agencies have only limited resources and continue to suffer from cuts after cuts in their funding. Often the only recourse for victims or their families is a civil lawsuit, but even then elder financial abuse litigation is very expensive and often judgments are difficult if not impossible to collect. However, occasionally, the abusers are caught early enough to seize control over property and assets so that they can be recovered by the elder or their family – the most gratifying part of being an elder abuse lawyer…

Wait, What?!

… Just the other day after leaving a hearing on an elder financial abuse case, the alleged abuser yelled out to me while walking outside the courthouse “I know where you live!”  Well, the police, the court, etc. know where he lives and hopefully before too long he’ll either be behind bars or at least karma will catch up with him. I’m not Nostradamus, but strongly believe Karmageddon will someday come to predators of the elderly, disabled…

I plan to continue updating this blog on a regular basis, with a place for comments, questions, etc. The blog and/or a link to it will be on the Bray & Bray website .

Michael LaMay, an attorney with the Bray & Bray Law Offices in Martinez, specializes in elder abuse litigation, will & trust litigation, probate, conservatorships and estate planning, and serves on the Board of Directors of the Elder Law Section.

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