|Oregon State Bar Bulletin APRIL 2009|
|Signs and Symptoms of Possible Elder Abuse|
Statewide Adult Protective Services Data for Persons Aged 65 and Older
and Adults with Physical Disabilities
Eighty-six-year-old Ruth Nordmeyer lives in an assisted-living facility. But she was almost evicted after her son used $100,000 of her money to finance his high-end Portland fitness club.
Sixty-year-old Linda Ober was disabled. So when aides at her
Portland nursing facility dropped her — fracturing both of her legs — and
lied to cover it up, she had to spend six days in excruciating pain until another
employee thought to send her to a hospital for x-rays. She died the
What happened to Nordmeyer and Ober was harrowing, but at least their abusers were investigated and prosecuted. That may not happen in the future, as the number of elderly Oregonians soars, the economy plummets and the interagency, multidisciplinary teams that have investigated and prosecuted cases like these struggle to keep up.
According to the Oregon Office of Economic Analysis, the state’s 65-and-older population is expected to double between 2000 and 2008.
At the same time, says AARP Oregon director Jerry Cohen, "Because of the economy, we’re going to see a big increase in families being desperate to hire anyone as caregivers. And, with the type of (government agency) budget cuts being discussed, there’s a grave concern that there will be fewer ‘watchers.’"
But it isn’t just the fox outside the henhouse that needs watching.
"When families are under stress, they’re more prone to do things they wouldn’t do otherwise," says Cohen. "I.e., ‘My kid’s in college, I’ve just lost my job, and it’s not that I intend to rip my parent off, but I can rationalize doing things I’d otherwise never consider doing.’"
"When you combine the demographics with the economy," he concludes, "it’s not a pretty picture."
How the System Works
While lawyers aren’t mandatory reporters of elder abuse under Oregon law, they’re heavily involved in protecting older Oregonians in a number of other ways.
Elder-abuse lawyers regularly navigate sometimes-difficult family dynamics to obtain restraining orders, guardianships and conservatorships.
Litigators increasingly are suing abusers in civil court, using a combination of common-law negligence theories or, when applicable, a civil statute (ORS 124.100 et seq.) that provides for an alluring range of remedies but tightly restricts who can be sued.
Civil and criminal practitioners both took part in a statewide conference on "Teamwork in Tight Times: Working Together to Intervene in and Prosecute Financial Fraud" that was held in March.
And deputy district attorneys are an integral part of the multidisciplinary, interagency teams that advocate on behalf of victims like Ober and Nordmeyer.
Such teams are built around Oregon’s elder-abuse reporting statute (ORS 124.050 et seq.), which allows suspected abuse of persons aged 65 or older to be reported to a law enforcement agency or to the state Department of Human Services or its local adult protective services (APS) offices.
Allegations of abuse of adults with physical disabilities also are reported to the same government offices.
In the past, police officers who received such reports — frustrated by messy personal and financial relationships between alleged offenders and their victims — sometimes told complainants that "this is a civil matter" when the conduct was in fact criminal. And adult protective services workers, unfamiliar with criminal statutes, sometimes failed to pass appropriate complaints on to law enforcement instead of dealing with them administratively.
Now, "If we’re not sure if it’s criminal, or if it’s in the grey zone, we have a monthly meeting with local law enforcement," says Multnomah County’s Adult Protective Services Program Manager Mohammad Bader, "which includes the DA’s office, the Portland Police Bureau (PPB), the sheriff’s office, county counsel, the public guardian and other law enforcement jurisdictions as appropriate."
Regardless of whether a complaint is investigated criminally, Bader’s office provides social services to the reported victim. This may include arranging for mental-health treatment, in-home care and/or medical care; monitoring his or her well-being through repeated home visits and pursuing a guardianship and/or conservatorship if he or she is incapacitated and in danger.
"We still protect the victim’s interest," says Bader, "stop the (figurative) bleeding and put the perpetrator on notice that someone is watching."
"APS does an incredible job," says PPB Sgt. Margaret Bahnson, who has been in charge of the bureau’s Vulnerable Adults and Elder Crimes Unit since 2007.
While Adult Protective Services investigators have become more knowledgeable in recent years about what constitutes criminal conduct, Bahnson says that her unit also has become more crime-oriented.
"Previously we went out on calls with APS," says Bahnson. "It was more social services than law enforcement. Now, with resources as short as they are, we’re focusing on what we are expert in: criminal law."
Once Bahnson’s unit determines that an elder-abuse complaint does in fact involve criminal conduct, it goes to Annamarie "Annie" Shoen in the Multnomah County District Attorney’s Office.
"I do any case that comes into the DA’s office where the victim is over 60 (lower than the elder-abuse reporting statute cutoff age of 65) and was targeted as elderly," says Shoen, who prosecuted the Ober and Nordmeyer cases, both of which resulted in convictions.
Shoen recommends that anyone who suspects elder abuse "call the police — 911 if it’s going on right then — and APS."
"The police officer will take a report," she says. "It’s generally referred to the DA’s office right away or, if in Portland, it goes to [Bahnson’s] unit. I do get direct calls from citizens or other attorneys who believe they have a case that could be criminal. But if they call the police and APS and it’s a case, chances are it will end up on my desk."
The pile of cases on Shoen’s desk keeps getting higher.
While complaints of abuse of persons aged 65 and older and adults with physical disabilities stayed relatively flat statewide between 2006 and 2007 (see sidebar), the number of such cases that Bader’s office referred to Shoen’s office for prosecution increased from 16 to 26. (2008 statistics are not yet available.)
Bader says the underlying number of complaints investigated by Multnomah County APS also "clearly shows a tremendous increase."
For example, between July 1, 2005, and June 30, 2006 (Bader’s office uses the federal fiscal year for data collection), Multnomah County APS investigated 685 complaints of financial exploitation. One year later, that number had jumped to 967, a 41 percent increase.
"My guess is it (the increase) has to do with multiple factors," says Bader.
Like the AARP’s Cohen, Bader believes one reason is the economy.
"The elderly comprise 13 percent of the general population but have 50 percent of the wealth," Bader says. "The bad economy shifted crime from robbing a bank to robbing unsuspecting elderly or disabled people who rely on family and caregivers. It’s also generated lots of scams and too-good-to-be-true situations."
Bader says the elderly are especially vulnerable because "abusers
may assume that frail victims will not survive long enough to follow through
on legal interventions or will not make convincing witnesses." (Although,
as Oregon Department of Justice
Medicaid Fraud Control Unit Director Ellyn Sternfield wryly points out, homicide cases routinely are prosecuted without
But Bader says the economy and the vulnerability of older persons are not the only reasons the number of allegations investigated by his office is increasing.
"There is more awareness about elder abuse due to community outreach, education and more media coverage," he says.
For example, both the Ober and Nordmeyer cases received extensive coverage in The Oregonian. And when a Multnomah County jury last year returned a $904,200 award against a care facility that handcuffed an allegedly disruptive dementia resident, The West Linn Tidings captioned its article about the incident "A verdict that is putting care facilities on notice."
Medicaid Fraud Control Unit director Sternfield, whose program also investigates and prosecutes cases of elder abuse that meet certain criteria, says that it — like Bader’s — is receiving more referrals.
"We’re seeing more financial exploitation, which may be partly due to the economy," says Sternfield. "But I don’t know if there’s more abuse or more reporting of it. There used to be a lot of shame in reporting it."
Emotional factors still may influence the amount of elder abuse that gets reported. New police recruits at the statewide academy are taught that elderly victims may be afraid to talk about what happened to them because they fear being perceived as unable to care for themselves; that their perpetrators may retaliate against them or conversely, that their perpetrators will get in trouble.
The PPB’s Bahnson has no doubt that elder abuse continues to be under-reported.
"In 2008, there were (only) 325 elder-abuse cases reported citywide (in Portland)," says Bahnson, "and a lot of those cases involved people who didn’t want anyone to be arrested, or someone else reported the abuse and they didn’t remember it, etc. Certainly there were more than 325 instances of elder abuse in Portland in 2008."
Financial Abuse Cases Up
When Shoen, Bader and Bahnson get together at Portland’s monthly interdisciplinary elder-abuse meeting, the topic these days — as the AARP’s Cohen predicted — is likely to be financial abuse.
"Most of my cases are financial abuse," says Shoen, who prosecuted Ruth Nordmeyer’s son, Raymond "Tank" Nordmeyer, for his theft of her money to run his fitness club. "That’s my impression; it may be because they take a lot of time to investigate and prosecute. These (cases) are just so devastating. To take away someone’s life savings is so tragic: hundreds of thousands of dollars."
Bahnson says the PPB gets so many allegations of elder financial exploitation that the bureau has limited its investigations to felonies "with some hint of a suspect."
"We don’t investigate if it was a general scam, i.e., ‘Send money to some anonymous person in Florida,’" says Bahnson. "But we have done things like a couple of guys in a neighborhood targeting elders for yard work, taking their money and not doing the work."
Multnomah County APS’ Bader says the 41 percent increase in financial exploitation investigations conducted by his office between federal fiscal years 2005-06 and 2006-07 "clearly follows a national trend of (increased) financial abuse and fraud."
The elderly are especially vulnerable to financial exploitation, he says, because their "helpers" may exercise significant influence over them; have access to their homes and assets, and know they receive Social Security or other checks at certain times of the month.
In addition, he says, "Some older people are unsophisticated about financial matters. And advances in technology have made managing finances more complicated."
Shoen agrees. "We think our parents can take care of themselves," she says. "But I check my bank account on line at least every other day, and a lot of elderly people don’t know how to do that, or even that they can. Banks are definitely the first line of defense."
In fact, Bahnson says an elderly person’s lack of access to his banking information may be a tip-off that he’s being exploited financially.
"I generally tell the community to keep an eye out for an older neighbor: i.e., any change in behavior; becoming more isolated; one family member who’s always there, isolating them, pretty soon even speaking for the elder, telling him not to talk," says Bahnson. "It’s often a caregiver. The elder may say, ‘My son doesn’t let me see my checkbook. I haven’t seen my bank statements in a long time.’"
Shoen says that in her experience, the defendants in elder financial-abuse cases "are a mix of family members and caregivers."
"It’s hard to say whether someone could have stepped in and stopped it," she observes. "A lot of these victims had loving, caring families; it’s not like they weren’t paying attention."
Bahnson says the PPB advises investigating officers to look for signs that an elderly person may have been unduly influenced by a relative, caregiver or other person with regard to his finances.
"‘Look at behavior and demeanor; i.e., the caregiver won’t let the elder speak or speaks for the elder,’" Bahnson says she tells officers. "‘Listen to what the elder says and write a report!’ Yes, the caregiver may have a power of attorney, but the elder’s money may be going to the caregiver’s mortgage, her food, her Botox. We’re trying to dispel the myth that these cases are necessarily civil."
The Medicaid Fraud Control Unit’s Sternfield, whose unit has limited jurisdiction over fiduciary abuse, says she doesn’t hear about police telling complainants "this is a civil matter" as much as she did when she joined the unit in 1995.
However, Sternfield says she does see officers still failing to take advantage of elder-friendly statutes.
"For example, theft of a narcotic drug from an elderly patient may be written up as a misdemeanor theft when it could have been Criminal Mistreatment in the First Degree," says Sternfield, referring to ORS 163.205. Among other things, that statute makes it a felony for a caregiver to take an elderly person’s money or property, regardless of the dollar value involved.
Another thing Sternfield says she sees are requests from district attorneys and local law enforcement for help with the forensic-accounting aspects of elder financial-abuse cases.
"We still do a lot of training through the Oregon District Attorneys Association," says Sternfield, whose unit includes four investigators, three trial attorneys and two auditors. "A lot of (local) DAs are very capable; they just need forensic accounting (assistance)."
Gerald Rainey, a former credit-union financial officer who spoke on forensic accounting at March’s statewide "Teamwork for Tough Times" conference, acknowledges that it "can be overwhelming for someone with little understanding of finances or balance sheets."
But in fact, says Rainey, "Forensic accounting is nothing more than a CPA or bookkeeper working from an evidentiary perspective."
"It’s no different except they’re not looking for accuracy; they’re looking for evidence," says Rainey, who now owns a Springfield business that manages guardianships, conservatorships and trusts. "They’re looking for connections (between suspicious transactions) and aberrations."
Rainey advises anyone seeking to untangle what he calls "financial spaghetti" to enlist free assistance from employees of credit unions and banks and students at colleges with accounting or similar programs.
"Look at one account at a time," he says. "It just creates these rabbit trails (leading to other accounts)."
Physical Abuse Relatively Rare
Annie Shoen will remember Linda Ober — the Portland nursing-facility resident who was dropped by aides — for at least two reasons.
One, it was Shoen’s first trial after she began prosecuting elder-abuse cases for the Multnomah County District Attorney’s Office in August.
Two, the victim died.
"I don’t see that a lot," says Shoen, "partly because of our office’s structure, where homicides are tried by another unit. A more-typical case of physical abuse is usually an Assault in the Fourth Degree (involving a negligently caused, relatively-minor injury) in which the defendant is a caregiver or family member. I’ve had one Assault in the First Degree (involving an intentional, serious injury) and two attempted murders that involved family members as defendants."
In fact, not only are incidents like Linda Ober’s death relatively rare, but — unlike financial exploitation — actual physical abuse of persons aged 65 or older and physically disabled adults is relatively uncommon.
Of the 12,000-plus completed investigations and assessments done by Adult Protective Services statewide in 2006 and 2007, "physical abuse" constituted less than 10 percent.
What is far more common is neglect and self-neglect leading to physical harm, both of which are encompassed by Oregon’s elder-abuse reporting statute. Together, they constituted almost one-half of the complaints investigated by adult protective services statewide in 2007.
"Self-neglect is a national issue for people who live independently," says Multnomah County APS’ Bader, whose unit’s neglect and self-neglect statistics for federal fiscal year 2006-07 were almost identical to those for the state as a whole.
"Self-neglecting clients demonstrate symptoms similar to those who suffer from abuse," Bader says. "Multidisciplinary teams and coordination with health care and legal systems become crucial as there is a delicate balance between someone’s ability to be self-determining and the community’s need to keep people safe."
Bleaker Times Ahead
Regardless of whether an elderly and/or physically disabled person suffers from his own or someone else’s conduct, the potential for more abuse and neglect cases in the future is grim.
In 2006 and 2007, complaints involving a non-licensed care setting, such as an elderly and/or physically disabled person’s own home, made up almost 70 percent of the total complaints investigated by adult protective services statewide.
Of these, almost 100 percent involved victims who were receiving no formal care services or who had privately paid services funded by themselves or their families. Almost 40 percent involved victims who were financially or physically abused or neglected by their own family members, while another one-third allegedly were abused by relative or non-relative caregivers.
Which brings us back to the AARP’s Gerry Cohen, and his "perfect storm" of demographics and the economy, in which families under greater economic stress struggle to provide care for their elder members or to do so themselves, while less-than-desirable caregivers agree to work for less money and more clients.
"We have not only more elders but we have more projected, more facilities than in the past and DHS suffered budget cuts in the 03-05 biennium…which we really never recovered from," Mary Gear, administrator for the state Department of Human Services’ Office of Licensing and Quality of Care, told The West Linn Tidings last June. (Spokesmen for DHS declined to comment on the department’s budget prospects for the ’09-’10 biennium.)
Bader’s Multnomah County APS office, which receives both state and county money, may be in no better shape than the state; according to a February article in The Oregonian, unionized county workers were preparing to deal with the fact that "In the coming budget, Multnomah County government could lose a greater percentage of its work force than in the past eight years combined."
"We need to avoid being penny-wise, but pound-foolish as we address the cuts that are being considered," says Cohen. "They will have far-reaching effects on our law-enforcement system and our families."
And that brings us back to the reality that Oregon’s lawyers — while not mandatory reporters — have, and will continue to have, an enormous role in keeping our most-vulnerable fellow citizens safe.
The statewide, 24-hour Adult Protective Services hotline number is 1 (800) 232-3020.
ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.
© 2009 Janine Robben