Prepared by the State Bar of Michigan 1994
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This booklet offers information about the problem of elder abuse, and suggests possible solutions. It is written for older people, their families and friends, and for service providers who work with elders.
Abuse is basically behavior that threatens the health, safety, physical well-being, or financial security of a person. Elders can become particularly vulnerable to abuse because of conditions associated with the aging process. Elders are more likely to become isolated, as declining health and the death of family and friends reduce outside contact. They are more likely to become physically or mentally impaired and dependent upon others. Elders are more likely to need long- term supervision or medical care, draining life savings if provided at an outside facility or causing great stress to the family if provided at home. Of course not all elders face these problems. Most older people, like most other adults, adequately care for themselves. If not, they get appropriate care from others. Unfortunately, there is a small but growing number, as more people live to a greater age, who suffer physical, financial, or emotional injury from others or from self neglect.
The problem of elder abuse has only recently come under study. There is not yet enough information to predict with certainty who will be a victim or an abuser, or what specific acts will be considered elder abuse. However, initial research suggests the following: The victims, female in 75% of the cases, generally live by themselves or with one other family member, who is often the abuser. The victims have little contact with outsiders and are often mentally or physically impaired. The victims are often poor more than 80% have incomes under $10,000 a year. Within the group of elders as a whole, older members are more likely than younger members to suffer abuse.
In more than half the cases, the abuser is a child of the victim. Spouses are also abusers in a number of cases, particularly when one spouse is significantly younger or stronger than the other. Grandchildren, siblings, other relatives, and roomers account for the remainder of the problem. Over two-thirds of abusers are middle-aged or older, and most live with the victim. When victims and abusers live together, abuse is often only one of the many problems they face. In physical abuse cases, the abuser is often drug or alcohol dependent or mentally ill.
Physical Abuse
Intended acts by another, causing (or that will cause unless immediately corrected) physical injury to the elder, such as beatings, scaldings, or withholding medications.
Physical Neglect
Unintended acts or inactions by an elder (or person responsible for an elder) resulting in physical injury, such as failing to prepare or provide food, shelter, or clothing.
Psychological Abuse
Intended acts by another to frighten or coerce an elder, such as threatening violence, isolation, or loss of freedom or financial control.
Financial Abuse
Intended acts by another depriving an elder of money or property, such as stealing, misusing, or wasting an elders assets.
Financial Neglect
Unintended acts or inactions by an elder (or person responsible for an elder) resulting in the loss of property and income, such as losing a home for not paying property taxes or not filing for benefits to which the elder is entitled.
Violation of Rights
Intended acts by another preventing an elder from exercising legal rights common to all adults, either directly, such as refusing to let an elder leave his or her home, or indirectly, by misrepresenting to an elder that he or she cannot vote, marry, or refuse medical care without the others consent.
There are both legal andnon-legal solutions to most abuse problems. The best remedy for a particular case depends on the type of abuse involved, its severity, the needs and living situation of the victim, and often the needs and problems of the abuser. Legal remedies often involve public, adversarial proceedings, which can be costly in time and money. They may be best used for more serious forms of abuse. Non-legal solutions such as family counseling, home chore assistance, or finding the victim or abuser other living arrangements may be quicker and simpler. They are not, however, binding on the abuser. The best solution to an abusive situation will often be to combine legal and non-legal responses. As example, a court can remove a physically abusive person from an elders home and a social service agency can then provide home-delivered meals and help with chores to replace the abusers past contributions around the house.
The Michigan Family Independence Agency (formerly the Michigan Department of Social Services) has an Adult Protective Services (APS) Program which investigates and resolves problems of abuse and neglect of adults unable to care for themselves. (The APS program uses slightly different terms to describe what this booklet calls abuse and neglect, referring instead to abuse, neglect, exploitation and endangerment. ) The Michigan Legislature strengthened the program several years ago by passing Public Act 519 of 1982, commonly called the APS law. This law requires the Department to investigate all complaints of abuse or neglect of persons over 18 who are in the community and vulnerable because of mental or physical impairments or the frailties and dependencies of advanced age. The program has no income or asset limits. Investigations of alleged abuse or neglect must begin immediately if serious injury is feared, within 24 hours otherwise. Investigations may include home visits and talks with victims, neighbors, family members, and others with information on the problem. When the Department finds that abuse or neglect exists, it can either provideor arrange with other agencies to provide whatever social, health, remedial, or legal services are needed to correct the problem. Anyone may make a report to the local Department office when he or she suspects abuse or neglect. However, certain people have a legal obligation to report suspected problems. These include human service workers such as physicians; other health care, social welfare, and mental health workers; educators; and police officers.
Non-legal responses often focus on changing the environment in which abuse occurs. Reducing an elders isolation by providing phone reassurance, visitors, or other service to keep the elder in touch with the community can stop abuse, either by deterring potential abusers or by bringing ongoing abuse to the attention of the authorities. Non-legal solutions may also look to the needs of the victims family. Abuse seems to occur more frequently in families with problems like poverty, unemployment, drug abuse, and divorce. Reducing the familys stress by resolving the other problems through services like family or drug counseling, job training, or respite care may halt the abuse. Neglect can occur when an elder can no longer maintain him or herself at home and there is no caretaker, or the caretaker cannot adequately provide for the elder. Agencies which provide care in the residence, such as home health care, chore services, or home maintenance may alleviate the problem. If not, help in finding the elder a more appropriate living situation, such as a senior citizens apartment building, home for the aged, or nursing home if medically indicated, may also correct the problem. There are many non-legal solutions to abuse. Information on available social services may be obtained from senior citizens information and referral services, private social service agencies such as Catholic or Lutheran Social Services, or the local office of the Michigan Family Independence Agency (Formerly Michigan Department of Social Services).
Most incidents of physical or financial abuse are criminal acts, notwithstanding that victim and abuser are related. The police should be called immediately in all serious abuse cases. They may arrest the abuser or otherwise intervene. Their report may later document the need for an injunction. If the police will not arrest the abuser, the victim can ask the Prosecuting Attorneys office to issue a warrant for the abusers arrest.
Ongoing violence can be stopped by separating the victim and abuser. Where a physical abuser will not leave or stay away from a victim, a Circuit Court can issue an injunction prohibiting the assault, harassment, or entry to the premises of the victim. The most useful injunction for resolving elder abuse is the misleadingly named spouse abuse injunction. Despite its label, it is available whenever the victim and abuser live, or have lived, together. There is no need for any marital or family relationship. Once a spouse abuse injunction is issued, it can be filed with the police, and the abuser arrested if he or she violates its terms. Injunctions can also be issued as part of a separate maintenance or divorce action, or under the Circuit Courts general equitable powers.
Some abusers live in an elders home and refuse to leave, often intimidating or taking financial advantage of the elder. A District Court can order the abuser from the home, and provide a bailiff to remove his or her belongings, in an eviction proceeding. The time needed to evict an abuser varies, depending on how the abuser first came into the home, whether rent was ever paid or expected, or if his or her actions made the home uninhabitable. However, it is usually quite prompt. To stop a spiteful abuser from wrecking the home when an eviction is pending, the District Court can issue an injunction prohibiting property damage. (If physical abuse occurs, the police should be called or a spouse abuse or similar injunction obtained as discussed above.)
Elders sometimes give others control of their money and property, perhaps because of fears of becoming ill and unable to pay bills or in hopes of avoiding probate. Unfortunately, this control can be misused. An abuser may empty a joint bank account or use a Power of Attorney to sell an elders property and keep the proceeds. To prevent financial abuse, two steps must be taken. At the first sign of misuse, the remaining assets must be taken from the abusers control. If the elder gave a Power of Attorney, it must be cancelled in writing. The cancellation must be sent to the abuser, and to each place where he or she might use the Power of Attorney. If the abuser is on any joint bank accounts, the elder must remove the remaining money and open a new account in the elders name only. If the money cannot be withdrawn because the abuser has the bank book or the account is not yet payable, the bank must be asked in writing to freeze the account until a court can decide who owns it. The elder must then file a lawsuit to seek this determination. Once further losses are prevented, recovery can be sought. An elder tricked or forced into giving an abuser real property can recover it with a constructive trust, rescission, or similar law suit. If the property has since been sold to an innocent person, the proceeds can be returned in its place. Unlawfully taken personal property can be returned through a Claim and Delivery action. Remedies can be combined in a law suit, and tailored for special problems like lost profits, rents, or damages. Any remedy sought, however, must clearly show the losses to be the result of abuse and not just an effort to take back a gift an elder now realizes should not have been made. An abuser who has already spent the elders money or destroyed the elders personal property can be sued under contract or tort theories of law. A court can order the abuser to pay a money judgment as compensation for the loss. If the abuser will not pay voluntarily, his or her wages or bank accounts can be garnished or property seized and sold. Unfortunately, some abusers are without money or assets and judgments against them may go unsatisfied.
A small number of elders cannot manage their personal care or finances because of physical or mental impairments. They may be unable to consent to medical care, leave dangerous living situations, or provide for necessities like food or shelter. Some of these problems can be informally remedied by reliable family members, friends, or social agencies. Other problems may require the appointment of a guardian or conservator. (A guardian is a person named by a probate court to make decisions affecting an impaired persons well-being. A conservator is a person named by a probate court to make decisions affecting an impaired persons money or property. A probate court can appoint either or both, depending on the needs and circumstances of the impaired person.)
A guardian may prevent abuse or neglect by taking actions such as evicting a wrongdoer, authorizing surgery, or putting an elder in a safe place to live. A conservator may prevent abuse or neglect by removing an elders assets from a wrongdoers control, selling unneeded property, or paying someone to care for an elder at home. This protection, however, may be at great personal cost to the elder. The legal right to make any and all basic living decisions is removed from an elder under a guardianship and conservatorship. These proceedings should only be sought when the elder cannot make responsible decisions, no less restrictive remedy exists, and some meaningful improvement will occur in the elders life if the appointment is made. Guardians and conservators are required to act in the impaired elders best interests. Unfortunately, a few do not. The probate court should be notified if a guardian abuses or neglects an elder. The court can remove the guardians or conservators authority or maintain closer direction and supervision as appropriate.
Your chances of being a victim of elder abuse or neglect are small, and you can help make them smaller by taking certain precautions:
l Fight isolation by remaining active in your community, in touch with friends and family.
2 Know the legal consequences of your actions, and your alternatives.
3 Do not let yourself be talked into doing things which arent in your best interest just because the asker is a family member or friend.
4 If you do become a victim, however, dont hide from the problem because of embarrassment. Seek help at the first sign of abuse. For legal assistance, contact your family lawyer. If you do not have one, call the nearest lawyer referral service. You may also be eligible for legal aid assistance. Abuse can be stopped once you decide to take action.
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This pamphlet may be purchased individually or in bulk from the State Bar of Michigan, Membership Services Department, 306 Townsend Street, Lansing, Michigan 48933-2083. You may call 1-800-948-1442 ext. 6326 to obtain price information.
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Last Updated 12-1-96
Send your comments, questions and suggestions to Phil Harter at 161 E Michigan Avenue, Battle Creek, Michigan 49014 or e mail to pharter@calhouncountymi.gov