Elder Dignity, Autonomy and the Need for Protection from Abuse

Whether we are dealing with the difficult issues of how to convince dad to give up the car keys, mom’s need for placement in a facility, or fear of money being improperly acquired by a scammer, dignity of the elder must not be disregarded in the name of protection.

The question posed is how to maximize the preservation of dignity in the face of true need for protection of the elder? This article addresses the issue as it relates to financial abuse of elders, but the principles are equally applicable in other situations.

Example of the Conflict

In many cases of financial abuse of an elder, the dignity of the elder is in indirect conflict with the apparent need for protection. This problem sometimes arises from the fact that a report to Adult Protective Services (APS) has been made in the name of protection. The investigators who are strangers to the elder and the family are then required to investigate and quickly judge the elder’s relationships with friends and family and make a decision whether protection is needed. Complete information is not available as a thorough investigation takes time. In other instances, the conflict results from a family member initiating court proceedings alleging financial abuse by filing a conservatorship proceeding, application for temporary restraining orders, or simply suing for the return of the elder’s money or assets. The conflict also arises when a family member hires an attorney to demand the return of money or assets to the elder. Protection from financial abuse is the goal, but often ignored is the elder’s dignity.

Using a situation for illustration, the facts presented are that an action in the name of protection of the elder has been initiated. There are allegations of elder financial abuse. Mary is 85 years old. She appears somewhat forgetful but has the legal capacity to make her own decisions. However, Mary’s capacity is diminished due to dementia affecting her memory. Mary and her daughter, Sue, want an attorney to draft a new Trust, Durable Power of Attorney for Financial Management, and Advanced Healthcare Directive.

After losing her minimum wage job, Sue moved from Texas to California to live with Mary claiming to help provide care and assistance. Mary and Sue then agreed that Sue should be paid $5000 a month to help Mary. Mary now wants 75% of the assets in her trust to be distributed to Sue and 25% to a Texas charity. Bob, Mary’s son, will not receive a distribution, despite the fact that Mary provided years ago that each child would receive equal shares. All documents are changed to make Sue the fiduciary (i.e. trustee and attorney in fact), giving her complete control of the management of Mary’s assets. At first glance, it looks like Sue is profiting from the situation and elder financial abuse may have occurred.

Mary is claimed in the action to be incapable of handling her finances, that the decisions are not a result of her free will, and that she is vulnerable and in need of protection. This hurts and upsets Mary. Although the motivation to take action in this instance appears proper, were there better alternatives that would have preserved Mary’s dignity?

Mary is embarrassed that anyone would question her ability to make good decisions. It upsets her that the motivations of her daughter are thought by others to be based on money, not love and compassion. As a result, Mary becomes stressed and depression sets in. Family crisis, from her viewpoint, is inevitable. She will now need to justify why she made the changes to her estate planning documents or paid Sue to care for her. Mary is forced to discuss her private finances and intimate family relationships with strangers so that Sue will not face civil or criminal liability for financial elder abuse. Over time, health problems result from the stress, anxiety, and depression.

Assume additional facts which would have been discovered if Mary had simply been treated with the respect and dignity, such as a call to Mary before any action in the name of protection was initiated. The call would have revealed that the Texas charity is the church where Mary and her deceased husband of 50 years were married. Bob is very wealthy and Mary prefers to use her assets as a legacy to help those in need. Based upon the geriatric needs assessment, a paid caregiver would be paid double or triple that which Sue is receiving. Mary is happy to be with her daughter and stay in her own home, rather than being placed in a care facility.

Why did we jump to the conclusion that Mary was incapable of making these decisions and was a victim of financial abuse? The answer is found in the fact that Mary’s dignity and right to self-determination were not even considered. Only due to her age and physical infirmities did we quickly jump to the conclusion that Mary was not able to act in her own best interests. If Mary was 45 years old, would we have made the same assumptions? Likely not.

Elder Dignity

Dignity is recognized as a fundamental right worldwide. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in 1948. The UDHR provided that all human beings are born free and equal in dignity. The passing of our own Civil Rights Act of 1964 was in part based upon a dignity principle, that of “anti-humiliation”; that all citizens should be free from humiliation.  More recently, the principle that all people should be free from humiliation was drawn upon by the U.S. Supreme Court in the defense of gay marriage [i].

Unfortunately, with the aging of our society, discarding the dignity and respect for our elders as a result of cultural change has become evident. The mere act of aging should not strip a person of their human dignity, right to self-determination, and autonomy. Elders should not be relegated to second-class citizens due to the natural deterioration of their physical and mental capabilities. At first blush, to claim that an elder’s dignity should be maintained may appear to state the obvious and one may assume the goal is easily met.

However, as evidenced by the foregoing case example, conflicting with the principle of human dignity are the problems inherent in implementing the declaration of the California legislature that elders are a vulnerable class in need of protection.

California’s Elder Protection Statutes

The California legislature identified issues facing our elderly population, preserving dignity, and providing protection due to vulnerability. In enacting the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), the Legislature recognized that elders (age 65 or older) may be subjected to abuse, neglect, or abandonment and that we have a responsibility to protect these persons [ii]. The Legislature declared that elders are subject to increased risks of abuse, neglect, and abandonment [iii]. Since a significant number of our elders have mental and verbal limitations they are vulnerable to abuse and incapable of asking for help and protection [iv]. Those most at risk suffer physical impairments and other poor health that place them in a dependent and vulnerable position[v]. The Legislature further declared that infirm elderly persons are a disadvantaged class [vi]. Surprisingly, the Legislature went beyond these declarations and enacted legislation to encourage the public to hire attorneys “…to take up the cause of the abused elderly…” [vii]

At the same time, the Legislature acknowledged the dignity and autonomy of the elder and used such right as a basis for providing statutory protection of elders from abuse. The Legislature declared “In cases of severe elder and dependent adult abuse or neglect, endangered adults are frequently deprived of their personal autonomy and dignity by their abusers, thus preventing them from acting on their own needs or desires to free themselves from serious, and even life-threatening, abuse or neglect [viii].

What is Elder Financial Abuse?

“Financial abuse” of an elder or dependent adult occurs when a person or entity takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both [ix].  Such abuse also occurs when a person secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence[x]. The vulnerability of the victim is one factor in determining the presence of undue influence over an elder. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability [xi].

What are Dignity and Respect?

American Heritage® Dictionary defines dignity as “The quality or state of being worthy of esteem or respect.” Others claim that dignity is our inherent value and worth as human beings; everyone is born with it [xii] Respect is honoring the worth or dignity in a person or process. When we respect others, we take their preferences and ideas seriously. We thoughtfully weigh our own insights and experiences against theirs. Respect is merited particularly by those who are our elders, because knowledge, insight, and wisdom often are hard won through a lifetime of discipline and learning.

The Solution, Respect, and Empathy while Protecting the Elder

The National Pensioners Dignity Code (Dignity Code) which was enacted in the United Kingdom in 2012 provides guidance for action in dealing with the difficult problems that confront elders and their families. Practices which are unacceptable include:

• Being disrespectful or abusive, ignoring people, or assuming they cannot do things for themselves
• Treating elders as objects or speaking about them in their presence as if they were not there
• Not respecting the privacy of an elder
• Changing the older person’s environment or residence without their permission
• Intervening or performing care without consent
• Using unnecessary medication or restraints
• Failing to take care of an older person’s appearance
• Not allowing older people to speak for themselves

The Dignity Code mandates that we:

• Allow elders to make up their own minds and respect their wishes, as expressed in their estate planning documents
• Respect the elder’s habits, values, cultural background and needs
• Respect the homes, living space and privacy of the elder

The foregoing is consistent with California law which, for example, requires that the least restrictive actions for protection are taken in residence placement and determination, medical treatment, and care of the elder. Unless it would result in serious harm to the elder, action should be consistent with wishes of the elder. The intent of the elder controls the interpretation of estate planning documents.

California law recognizes and respects the dignity of the elder as a decision maker and presumes the elder is capable of making a decision, even if we may disagree with the decision of think it unwise [xiii].  Improvidence in a single financial transaction alone is insufficient evidence that an elder in unable to manage their financial affairs [xiv]. In the context of elder financial abuse, the elder should be first presumed to do what they please with their money and other assets. Only in the clearest of cases should we require intervention. If intervention is necessary, we need to act so as to preserve the dignity of the elder and be cautious to not supplant the elder’s wishes with our own values and opinions even if protection from financial abuse may be needed.

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