NEWS INDEX Archives 2004 April

Changes needed to protect aged parents from family abuse, scholar says

Mark Reutter, Business & Law Editor
217-333-0568; mreutter@uiuc.edu

4/12/04

CHAMPAIGN, Ill. — To combat the growing problem of family members mistreating their aged parents, changes are needed in confidentiality laws and guardianship proceedings, according to a scholar at the University of Illinois at Urbana-Champaign.

Elder abuse, often thought to be confined to nursing homes, actually takes place much more frequently within families, Sarah S. Sandusky writes in the latest issue of the Elder Law Journal, which is published by the Illinois College of Law.

Between 500,000 and 2.1 million older Americans are believed to be victimized each year – and the number is growing. Major kinds of abuse include hitting, beating, pinching and sexual attacks; threats, abusive language and teasing; and refusal to provide medicine, food, or minimum levels of hygiene to an older person.

Almost 90 percent of the perpetuators are family members, typically the adult children or spouses of the victim. Mistreatment is twice as prevalent among those 80 years or older than it is for the overall senior population. Victims tend to be women more often than men.

"Despite these disturbing numbers and calls for national elder abuse legislation, Congress has repeatedly failed to pass adequate legislation to address the issue of elder abuse," wrote Sandusky, the administrative editor of the journal.

What’s more, government resources to help elderly victims are nearly non-existent. In 2003, Congress earmarked only $5.2 million for elder abuse prevention in the home. This figure compares to $13 million appropriated for the prevention of institutional abuse of the elderly, even though most incidents of elder abuse do not happen in nursing homes.

Increased funding for adult protective services, however, will only be effective if victims of abuse are better identified. But for a host of reasons, not least fear and embarrassment, elderly victims are reluctant to report maltreatment to authorities, especially to the legal system. "Frequently, elderly victims are completely dependent on their abuser for basic life necessities," the article noted. "By reporting the abuse, victims will either be left alone and unable to care for themselves or they will be placed in a nursing home."

An even more basic obstacle to reporting incidences of abuse is shame. "Many elders believe that domestic abuse is a private problem that should be dealt with privately. Therefore, they never report it to an agency that can provide them and the family with the help they need."

While doctors and nurses are required by most states to report evidence of physical abuse among patients they treat, most cases of elderly abuse – as opposed to child
abuse – go unreported, Sandusky wrote. Based on evidence from congressional hearings, only one of eight cases of elder abuse was reported to police or adult protective agencies.

Family lawyers are often in the position to identify the victims of elder maltreatment, but they, too, often fail to report it. Under the rules of attorney-client confidentiality, lawyers are bound to remain silent in most cases of elderly abuse because confidences by a client can generally be breached only if the client consents to the disclosure or if the client intends to commit a crime.

Even under "revised model rules" passed by some states, lawyers can only disclose the most life-threatening cases of elderly abuse. "Unfortunately, none of the ethical rules give guidance to lawyers on how to counsel an abused client," according to the article. "Lawyers are left to allow the abuse to continue and pretend that it does not exist or withdraw from the representation."

Sandusky recommends that the model rules of the American Bar Association be amended to permit lawyers wider discretion in reporting cases of elder maltreatment.
She also suggests that lawyers become more pro-active and counsel clients before resorting to the drastic legal procedure of appointing a guardian. The prospect of a guardian often scares elderly victims into refusing to confront an abuse problem.

Informal counseling would include explaining the options available to an abused client, Sandusky wrote. For example, a client may flatly refuse to disclose abuse from an adult child to police. A lawyer may discover that the client fears being placed in a nursing home. "The lawyer could then suggest the possibility of moving into alternative housing instead of just recommending reporting the abuse. The client may then change her goal from staying in the abusive relationship to wishing to escape the abuse."

Sandusky faults legal educators for failing to address the issue of elder abuse. "A survey of eight family law textbooks revealed that not a single one of them presented any material on elder abuse, yet they featured domestic violence and child abuse prominently."

In addition to offering specialized courses in law schools, Sandusky recommends that state bar associations offer practicing lawyers classes on how to counsel elderly clients and handle the ethical issues that arise when a client is a victim of abuse.

The title of her article is "The Lawyer’s Role in Combating the Hidden Crime of Elder Abuse."