How an Elder Law Attorney Can Help Protect Victims of Elder Abuse or Neglect (and Why We Do This Work)

By: Dana Walsh Sivak

NOTE: This article is Part 5 of our Elder Abuse Awareness series published in recognition of Elder Abuse Awareness Day. Visit our blog to read our other articles in this important series.

When we think about what it means to be an elder law attorney, many people think about drafting wills and trusts, preparing and signing advance directives, and navigating long-term care costs and care planning.  This is certainly a part of what we do as elder law attorneys, but there is a deeper part that many people may not realize – the part that lets us advocate for older people, who are vulnerable to suffering physical, emotional or financial harm, at the hands of others, including those who have been entrusted to care for them.

The reason I went to law school was to one day be able to help people - to be a voice, and a resource, for those in desperate need of help who cannot speak for themselves. While I enjoy the different aspects of my work as an elder law attorney, what brings me the most joy, and purpose, is being able to help a person or a family struggling to see a way out of a frightening and desperate situation, and get them to a place of safety, security, and peace.

The Real Work of Elder Law

Preparing estate planning documents and advance directives for clients is part of that.  Supporting our elder law clients with ways they can remain independent as they age is part of what I consider advocating for our clients “future selves” and helping them understand all of the options available to them. By working with an older person to craft a plan that ensures their wishes regarding their financial management, health care, end-of-life treatment decisions, final resting place, and distribution of their property upon their death will be carried out, I help to educate and empower seniors to understand their rights, and utilize the right tools to establish control over these important future decisions now, rather than leave them to chance or interpretation later. 

The Challenge of Elder Abuse Cases

In cases involving elder abuse – whether it’s emotional, physical, or financial – these are matters where the work gets especially challenging, and, when we’re able to bring much-needed help to a victim and their family through our tireless efforts, incredibly rewarding.

Preparation and Training: Recognizing the Signs of Elder Abuse

But when it comes to combating elder abuse within the scope of our profession, the first thing we do as elder law attorneys is prepare – we learn about how to spot signs of elder abuse and neglect, and we complete specific and extensive training in what to do if we suspect that one of our clients, or prospective clients, may be suffering elder abuse or financial exploitation. 

The reasons for this are twofold: first, many elder abuse victims suffer isolation as part of the abuse, as keeping the elderly person isolated from others makes it easier for their abuser to conceal their abuse, and makes the victim feel trapped and dependent on their abuser, and afraid to seek help and escape the abusive arrangement.

Second – perpetrators of elder abuse sometimes try to manipulate elder law attorneys into unknowingly enabling or empowering the abuse, by bringing their victim to an attorney’s office for the purpose of drawing up legal papers that grant them legal authority to make decisions or access the victim’s property.  An adult child who is abusing their elderly parent may pretend to be a doting son or daughter, assisting their elderly parent with “getting their affairs in order” while, in reality, they mean to influence the parent into changing their estate plan to leave everything to them, or executing a power of attorney to give the abuser legal authority to commandeer their parent’s bank accounts. 

The Responsibility to Remain Vigilant

An experienced elder law attorney – especially one who practices in guardianship law, and has handled cases involving elder abuse cases – understands the responsibility this creates in elder law attorneys, who must remain vigilant at all times to ensure that they are not falling into a trap laid by a would-be elder abuser intent on seizing control of an elderly person’s finances or property, or controlling their future decisions against the person’s will.  We know that this means we – along with bankers, and doctors, and others who come into contact with elderly individuals more frequently than other people would – must learn how to spot signs of elder abuse, and what to do if we believe a person we have met with in our offices may be the victim of elder abuse.

Legal Remedies to Address Elder Abuse in New York

Beyond that, we work to understand what we, as elder lawyers, can meaningfully do to help a victim, or their family, who is suffering from elder abuse.

Whenever we are faced with the likelihood of elder abuse, one of the first things an elder law attorney can do is initiate a complaint with Adult Protective Services, an agency tasked with protecting vulnerable adults and intervening when necessary to protect them from harm.  APS can investigate the claim and determine whether further action is warranted – but there are circumstances where the intervention of APS is not enough to provide for the full protection of the elderly individual, especially if the signs of abuse or neglect are not apparent to the investigator at the time of their visit (which can occur for a variety of reasons).        

Guardianship in Elder Abuse Cases

Typically, unless practical steps can be taken to stop the abuse before it reaches the point of requiring court intervention, most elder abuse cases end up being litigated in court under the New York State guardianship statutes (primarily Article 81 of the Mental Hygiene Law).  If a person is concerned about the welfare of an elderly, mentally ill or otherwise cognitively-impaired individual who is at risk of harm, if a Guardian is not appointed for them, an elder law attorney can represent the client in a guardianship proceeding to seek a variety of remedies to bring help and protection to the elder abuse victim.  While the ultimate goal is typically the appointment of a Guardian to legally make decisions for the victim, there are a host of other possible interventions that the Court can utilize to protect the individual from harm.  These include the appointment of a Temporary Guardian; the imposition of Restraining Orders, which can direct individuals to refrain from contacting or harassing the victim, to refrain from accessing the individual’s property, or freezing the financial accounts, altogether, to protect them from fraudulent access; issuance of orders directing or permitting the change of a person’s place of abode; the invalidation of contracts, including marriages and divorces, if obtained fraudulently; and orders directing the “turnover” of property fraudulently transferred or stolen from the elderly or impaired individual. 

The dedicated team of elder law attorneys I work with has each worked on cases involving elder abuse, and most of these cases required guardianship litigation to protect the person from further harm. 

Sometimes, it’s because a victim's adult child moved in with their parent, to act as their “caregiver,” but instead used that opportunity to exploit their parent financially, and isolate them from the rest of their family.  In a number of cases, our clients have retained us because their parent has fallen victim to a sophisticated “romance scam” and our legal services were needed to stop their parent from transferring the balance of their life savings – or, in one case, the proceeds of the imminent sale of their house – to the scammers, under the mistaken belief that they will be moving in with the “romantic partner” (who they’re unable to accept does not actually exist). 

Some clients have retained us to help enable them to visit their parent, who they have not been able to speak with in months, or even years, because one of their siblings has moved their parent into their home, and is now blocking all forms of contact with them – and they call us when they feel they have nowhere to turn, and no idea what to do, and just want to see their mom, or dad.  

Some clients fear that their parent or loved one is being deprived of access to appropriate medical care, because the individual appointed as health care agent is unreasonably neglecting the elderly person’s medical needs, and no one will intervene without our assistance. 

We’ve been engaged to bring legal proceedings to invalidate sham marriages, after family members discovered a “friend” of their loved one suffering from advanced dementia had moved in with their loved one, brought them down to city hall, and had a quick civil marriage ceremony performed (despite no romantic relationship existing between them), allegedly for the purpose of securing tenancy rights to the residence and inheritance rights to their property.  

We’ve represented independent Guardians who have been appointed by the Court to step in and facilitate the removal of an elderly person from an unsafe home and their relocation to a safer setting, taking on the responsibility of managing all of their medical and financial needs – and drawing the ire of their abuser upon themselves, and us, as their attorneys, in the process, for doing what is necessary to protect an older person from ongoing harm.

As these cases are challenging and carry a high burden of proof for a petitioner to secure this drastic relief, amidst strictly limited time constraints,  it’s important to find an experienced elder law attorney you trust.  They can counsel you on what options may be available to you, and strategize what path forward makes the most sense, legally and practically, to address your concerns, and provide for the full protection of the elderly or cognitively-impaired person who you believe is in danger of suffering harm.

When Intervention Comes Too Late

I’ve been involved in one elder abuse case, throughout my career, where it was, sadly, already too late to bring help to the victim by the time I was involved.  My client was the surviving sister of a cognitively-impaired man, in his 60’s, who was manipulated by a 29-year-old woman, who feigned romantic interest in him; eventually, she drove in the middle of the night (with another man) to pick him up from his sister’s house, and brought him to a house several counties away in upstate New York.  Over a series of weeks, the beneficiary designations were changed on the victim’s retirement accounts, and he was taken to the bank by the younger woman in an apparent attempt by her to gain access to the victim’s financial accounts.  Some weeks later, after seemingly all of the picking apart of the victim’s financial accounts was done, and she was his designated beneficiary on his post-death benefits accounts – the young woman and her boyfriend purportedly left for a weekend trip, and upon returning, claimed to have been his “caregivers” who discovered that the man had died of natural causes while they were gone.  The medical examiner later determined that he had actually been killed, and the young woman and her boyfriend were later arrested, and eventually pleaded guilty to beating and strangling this poor man to death, admittedly as part of a conspiracy to defraud him out of thousands of dollars. (The two were also charged with grand larceny for allegedly stealing more than $50,000 from the victim.)

The prosecutor described it as “a particularly brutal case in which the defendants took advantage of the elderly victim for money and ultimately took his life,” noting that while the police had worked tirelessly for months to track the money involved to solve the case, the result would “not bring back the victim” but hoped it would bring closure to his family.

For my small part in this case, my efforts focused on denying the victim’s murderer the financial proceeds of her crime – I represented the sister of the victim in a civil lawsuit against the woman who murdered her brother.  In the end, the representation was successful, in that the Court issued an order invalidating the change of beneficiary designation that had been used to fraudulently divert the funds - previously earmarked for the victim’s sister, his original beneficiary – to his murderer, as his updated beneficiary upon his death.  I am hopeful that my efforts helped to bring some small measure of comfort to the victim’s sister, facilitating the return of funds to her that effectively denied the murderer the opportunity to financially benefit from the crimes she perpetrated against the victim.  I hope that the return of these funds to the victim’s sister held much more value to her than the funds themselves were actually “worth” in dollars and cents – and that bringing further justice against the abuser of her beloved brother brought additional closure to this victim’s family.  But at the end of the day, it could not bring the victim back – and I think about him and his family often, especially when I am involved in a case where similar facts are involved – where a sweet, trusting, impaired older person is so pure of heart as to not be able to grasp that the person who is pretending to care for them is actually intent on doing them harm. 

Why We Do This Work

While elder abuse is not something any of us like to think about, keeping these stories in the back of our minds, as elder lawyers, reminds us why we choose to litigate complicated, often gut-wrenching cases such as these – because next time, we hope, we may have an opportunity to intervene before the harm is done, by recognizing the signs of abuse before it is unleashed against a defenseless elderly person in need of love and care, and we may be able to save that person’s life.  We know the stakes of the work we do – that the safety and well-being of elderly individuals, and the important relationships they have with family members, who care about them more than they may be capable of realizing in that moment, often hang in the balance of how our cases ultimately turn out.  It’s why we work so hard to meet our burden in guardianship cases, and why we counsel our clients through the emotional turmoil that often complicates their already arduous efforts to protect their loved one from ongoing financial exploitation or physical abuse.  It’s why we put up with the campaigns of harassment unleashed against us, by the resentful, former abusers of the elderly people we now work with our clients, their Court-appointed Guardians, to protect – and know that this collateral damage to our mental health, and our professional reputation, is sometimes just the price we have to pay for stepping into the line of fire to stop abuse from continuing against someone who has fewer resources and less capacity to endure it. 

Because elder law attorneys know that there is a very real chance that we may one day come into contact, in the course of our practice of law, with an elderly person who is the victim of abuse, suffering in silence without a lifeline, and that we may be the only person who can help them – and the hope that we will have that chance, to make a meaningful difference in the life of an elderly person who is desperately depending on us, is ultimately why we do this work.  And it will have been worth it.

NOTE: This Elder Abuse Awareness series is published in honor of World Elder Abuse Awareness Day, recognized on June 15th each year to raise awareness about the abuse, neglect, and financial exploitation of older adults.  If you suspect that a loved one is being abused, neglected, or exploited, do not wait for the situation to escalate.   The Elder Law Practice Group at Falcon Rappaport & Berkman helps families across New York protect older adults, hold wrongdoers accountable, and put long-term safeguards in place. Contact us today to schedule a confidential consultation and take the first step toward protecting the older adult you love.  Please visit our blog to read the other articles in this series:

PART 1: Why Older Adults are Vulnerable to Abuse – and Why it Often Goes Undetected

PART 2: What are the “Warning Signs” of Elder Abuse?

PART 3: “If You See Something, Say Something” – Immediate Steps to Take If You Suspect Elder Abuse or Neglect

PART 4: Understanding Legal Options and Protections Available for Victims of Elder Abuse  

PART 5: How an Elder Law Attorney Can Help Protect Victims of Elder Abuse or Neglect (And Why We Do This Work)

Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. The experiences described herein are illustrative and have been generalized to protect client confidentiality. Every situation is unique, and outcomes depend on the specific facts and circumstances involved. If you believe that you or a loved one may be the victim of elder abuse or neglect, you should consult with a qualified attorney in your jurisdiction to discuss your particular situation.

If you or someone you know is in immediate danger, please call 911 or contact your local emergency services. To report suspected elder abuse or neglect in New York, you may also contact Adult Protective Services or your local law enforcement agency.