As with other professionals who work with senior citizens, lawyers have observed a shocking increase in the incidents of abuse, neglect and financial exploitation of the elderly.

Cases are brought to our attention from many different sources: the elder himself or herself, a concerned family member, friends and neighbors, social workers, adult protection workers, medical personnel, financial institutions, senior centers and programs, clergy and even other lawyers. When faced with a case of abuse, neglect or financial exploitation of an elder, the attorney can recommend and pursue a number of legal options. This paper will review the statistical realities of the aging population; define the terms abuse, neglect and financial exploitation; identify who the most common perpetrators are; analyze why our elders are mistreated; examine what characteristics make the elderly particularly vulnerable; and address the legal remedies available to the elder and how he or she can fight back.

Statistical Analysis of the Aging Population

It is no secret that our population is rapidly aging. With more elders, there are more people to victimize and greater opportunities to abuse, neglect and financially exploit.

Consider how the following statistics affect the incidents of abuse, neglect and financial exploitation of the elderly.

By the year 2030, there will be 70 million older persons, which is more than twice the number in 1990, and which will represent 20% of the population. Shockingly, two-thirds of all people who have ever lived longer than 65 years are alive today.

Of great significance is the fact that the older population is getting older, with those age 85 and over representing the fastest growing segment of the elder population.

The fact that women typically outlive men represents another factor in the increase in abuse, neglect and financial exploitation. After age 60, women increasingly outnumber men. Significantly, older men are nearly twice as likely to be married (77%) than are older women (43%). Not surprisingly, there are nearly five times as many widows as there are widowers.

Why is this country experiencing such an "age boom?" First, people are living longer.

The life expectancy in 1900 was only 47. People who reach age 65 now have an average life expectancy of an additional 17.3 years.

Second, the "baby boomers," those born between 1946 and 1964, are aging. The most rapid increases in age are expected to occur between 2010 and 2030, when this generation reaches age 65.

Financial factors also contribute to abuse, neglect and financial exploitation of the elderly.

Medical considerations constitute another factor in abuse, neglect and financial exploitation of the elderly. Most older persons have at least one chronic condition. The most frequently occurring conditions per 100 elderly in 1993 were arthritis (49), hypertension (35), heart disease and hearing impairments (31 each), orthopedic impairments (18), cataracts and sinusitis (15 each), and diabetes, tinnitus and visual impairments (10 each).

Approximately 85% of people age 65 and older are farsighted. As people age, they lose night and peripheral vision. Approximately 70% of men and 30% of women age 65 and older have some degree of hearing loss. Nationally, approximately 10 to 15% of individuals age 65 and over will develop a major depression, which represents the most common form of mental illness experienced by older adults. In 1990, 1.6 million Americans age 65 or older (5%) lived in nursing homes. This percentage increased dramatically with age, ranging from 1% for persons 65-74 years, to 6% for persons 75-84, to 24% for persons 85 and older.

Statistics concerning the incidents of elder abuse, neglect and financial exploitation are scant at best. It has been estimated that as many as 10% of older adults are victimized by elder abuse. However, only one in eight abuse incidents is actually reported. Many of us who work with the elderly suspect that abuse, neglect and financial exploitation are far more prevalent, to the point of representing a national crisis and scandal.

Defining the Terms Abuse, Neglect and Financial Exploitation of the Elderly

Definitions of abuse, neglect and financial exploitation are found in Colorado law in the Protective Services for Adults at Risk of Mistreatment or Self-Neglect Act, C.R.S.  26-3.1-

102-106, and in other sources such as the American Association of Retired Person's publication Domestic Mistreatment of the Elderly -- Towards Prevention, written by Richard L. Douglass, M.P.H., Ph.D., in 1987.

A. Abuse

Abuse generally falls into two categories: physical abuse and psychological abuse.

The definition of abuse under Colorado law is:

...infliction of physical pain or injury, as demonstrated by, but not limited to, substantial or multiple skin bruising, bleeding, malnutrition, dehydration, burns, bone fractures, poisoning, subdural hematoma, soft tissue swelling, or suffocation; ... unreasonable confinement or restraint; or ... nonconsensual sexual conduct or contact classified as a crime under the 'Colorado Criminal Code' of an at-risk adult. (C.R.S.  18-6.5-101-106.)

The definition of an at-risk adult under Colorado law is:
an individual eighteen years of age or older who is susceptible to mistreatment ... or self-neglect ... because the individual is unable to perform or obtain services necessary for the individual's health, safety, or welfare or lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the individual's person or affairs.

Dr. Douglass defines physical abuse as "the infliction of physical pain or injury, or physical coercion (confinement against one's will)." Examples include "slapping, bruising, sexually molesting, cutting, lacerating, burning, physically restraining, pushing, shoving."

According to Dr. Douglass, psychological abuse is "the infliction of mental anguish." Examples include "demeaning, name calling, treating as a child, insulting, ignoring,frightening, humiliating, intimidating, threatening, isolation."

B. Neglect

Pursuant to Colorado law, neglect occurs when
...adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision is not secured for the at-risk adult or is not provided by a caretaker in a timely manner and with the degree of care that a reasonable person in the same situation would exercise...."

C.R.S. 26-3.1-101(4)(b).

In Domestic Mistreatment of the Elderly -- Towards Prevention, neglect is divided into two categories: (1) passive neglect, which is defined as "the unintentional failure to fulfill a caretaking obligation; there is no conscious or willful attempt to inflict physical or emotional distress on the older person." Examples include "non-provision of food or health-related services because of the caregiver's infirmity, laziness, or inadequate skills, knowledge, or understanding of the necessity of prescribed or other essential services."

(2) Active neglect, which is defined as "the intentional failure to fulfill a caretaking obligation, including a conscious and willful attempt to inflict physical or emotional stress or injury on the older person." Examples include "deliberate abandonment, deliberate denial of food or health-related services, depriving of dentures or eyeglasses."

Another category of neglect is self-neglect, in which the elder fails to properly care for himself or herself.

C. Financial Exploitation

Colorado law defines exploitation as
...the illegal or improper use of an at-risk adult or the at-risk adult's resources for another person's profit or advantage.

Dr. Douglass includes in his definition of "material (financial) abuse" the "illegal, or unethical exploitation and/or use of funds, property, or other assets belonging to the older person."

Another interesting and somewhat unusual definition of financial exploitation is found in the Journal of Legal Medicine in an article entitled, "The Physician's Role in Detecting and Reporting Elder Abuse," written in 1982 by Palinesar and Cobb. The authors state:

Financial abuse typically occurs in one of two forms. It may be the misuse of the elderly person's funds by another person, usually a caretaker or close relative; or, a caretaker may withhold medical attention or refrain from making necessary expenditures for the elderly person's benefit in order to conserve funds for inheritance.

Examples of financial exploitation include stealing property and money, using the elder's money and/or credit cards, transferring title to assets, for example, the home or financial accounts, cashing in CDs, money markets, life insurance policies, etc.

Identifying the Most Common Perpetrators of Abuse, Neglect and Financial Exploitation

Unfortunately, nearly anyone can be a perpetrator of abuse, neglect or financial exploitation of the elderly, either through ignorance, inexperience, failure to act or intentional acts. Well meaning caregivers, weary from the demands of catering to an elder, may forget to administer medication. Or, in a moment of extreme stress, a daughter may handle her elderly father too roughly and curse at him for soiling himself. Or, while running errands for an elder, a friend may buy a few items for himself and pay for it with the elder's funds, justifying it because, after all, he, the friend, has done so much for the elder.

Those who are perpetrators of abuse, neglect and financial exploitation of the elderly tend to fall into specific categories. These include the following:

1. Spouse caregivers;

2. Adult child or other family member caregivers;

3. Caregivers who are unrelated to the elder;

4. Those serving as a fiduciary for the elder, e.g., guardians, conservators,trustees, agents under a power of attorney and personal representatives;

5. Medical facilities and personnel, including hospitals, nursing homes, assisted living facilities and board and care homes;

6. Financial facilities and personnel, including stock brokers, insurance agents and accountants;

7. Others in a position of trust, e.g., lawyers and those who offer to "help" the elder with paying bills, depositing money, filing health insurance claims, etc.; and

8. Strangers perpetrating various "scams," notably telephone fraud.

Why Are Our Elders Mistreated?

In analyzing the problem of elder abuse, neglect and financial exploitation, it is important to identify why senior citizens are particularly vulnerable to mistreatment. In April 1990, the Subcommittee on Health and Long-Term Care of the Select Committee on Aging of the House of Representatives issued a report entitled Elder Abuse: A Decade of Shame and Inaction. The report addressed the primary reasons for mistreatment of the elderly as follows.

1. Retaliation. If the adult child was abused by the elder during childhood, mistreatment may be used to seek revenge. Additionally, unresolved conflicts between the adult child and the elder can lead to retaliation.

2. Violence as a Way of Life. A family history of violence or the mere fact that there is widespread acceptance of violence in this country may lead to mistreatment.

3. Unresolved Conflict. This can occur between elders and their adult children and between elderly spouses.

4. Lack of Close Family Ties. If an elder and the adult child have had an emotionally distant relationship, resentment may occur when the adult child suddenly has to care for the elderly parent. Additionally, lack of close family ties often leads elders to seek non-relative caregivers, who may not feel the same sense of responsibility as a family member.

5. Lack of Financial Resources. This can be a factor for both the elder and the adult child caregiver. The elder may have limited financial resources and, therefore, must rely on the caregiver to supplement some of the expenses. The caregiver may resent having to pay for the elder's care, particularly if it negatively affects the family's resources. Additionally, women are working in much greater numbers and having to sacrifice a job or career to care for an elder can lead to tremendous resentment and stress. Finally, elders who have limited resources are often forced to seek inappropriate caregivers who, themselves, may have financial problems.

6. Resentment of Dependency. A caregiver can become overwhelmed at the amount of time and effort caring for an elder requires. The caregiver's loss of independence can lead to frustration, anger and resentment.

7. Increased Life Expectancy. Because elders are living longer, they are becoming more frail, they require more care and the number of years spent providing care are increased.

8. History of Mental Problems. This is particularly a problem when the caregiver, often an adult child, has mental problems. The elder becomes a target when the caregiver strikes out.

9. Unemployment. When the primary income-producing member of the family is unemployed, intra-family violence increases not only toward the spouse and children, but also toward the dependent elder.

10. History of Alcohol and Drug Abuse. As with mental problems, caregivers who abuse alcohol and drugs tend to be more violent or prone to exploit others.

11. Environmental Conditions. All kinds of environmental conditions, such as living in a crowded home, can lead to violence.

In addition to the above factors, it is this author's observation that greed is a tremendous influence, primarily in circumstances constituting financial exploitation of the elderly. Greed is an emotion that affects relatives and non-related individuals alike. The opportunity to benefit financially is often too great a temptation to resist. In many family circumstances, rationalizations for financially exploiting a relative abound. Examples include, "Mama always loved me best" and "I've sacrificed for Mama by providing care for her, therefore I am entitled." Additionally, hostility between family members, primarily siblings, results in a race to see who can get his or her hands on the elder's resources first. 

Characteristics That Make Elders Particularly Vulnerable

The report Elder Abuse: A Decade of Shame and Inaction identifies the factors that make elders particularly vulnerable to abuse, neglect and financial exploitation.

1. Female. There are more older women than men, which makes being female a risk factor. Additionally, women are more likely to be targets of sexual abuse.

2. Advanced Age. The older the person is, the higher risk he or she has of being abused. Physical and mental impairments may affect the elder's ability to resist abuse.

3. Dependent. The more dependent an elder is, whether physically, emotionally, or financially, the more likely he or she is to be a victim.

4. Problem Drinker. Elders who abuse alcohol are at higher risk of being victims, especially if they have difficulty caring for themselves.

5. Intergenerational Conflict. When long-standing conflicts between parents and adult children are unresolved, the elder is at greater risk of being victimized.

6. Internalizing the Blame. An elderly person who blames himself or herself for a particular situation is more vulnerable and less likely to acknowledge that abuse is the fault of the abuser, not of the elder.

7. Isolation. Loneliness can lead elders to trust an apparently "friendly" individual bent on exploitation. Because the elder is isolated from others, it is less likely that victimization will be detected by third parties.

8. Provocative Behavior. Elders who are demanding, ungrateful, uncooperative or abusive themselves are often more likely to be victims themselves.

Fighting Back: Legal Remedies Available to the Elderly Victims of Abuse, Neglect and Financial Exploitation

There are three categories of legal remedies for the victim of elder abuse, neglect and financial exploitation: (1) criminal, (2) civil and (3) administrative. Although the focus of this paper is on civil and administrative remedies, criminal remedies will be discussed briefly.

A. Criminal Remedies

A criminal case is brought on behalf of the public at large ("the people") by the District Attorney or the Attorney General for violations of state criminal law, and by the U.S. Attorney for violations of federal law. The State of Colorado or the United States are the plaintiff in criminal cases and the perpetrator of abuse, neglect or financial exploitation is the defendant. The victim is not a party to the case, but rather is a witness. It is generally in the discretion of the District or U.S. Attorney to file a criminal case.

Prosecuting cases involving elder abuse, neglect and financial exploitation can be difficult: the victim is often a poor witness, whether from fear, confusion, diminished capacity, memory failure or frailty. Conversely, the defendant is often a better witness and can raise defenses such as the impairment of the elder's memory, claims that the elder made a gift,the elder entered into a contract, etc.

Colorado's Criminal Code contains a section entitled Wrongs to At-risk Adults, C.R.

S.  18-6.5-101-106, which specifically targets abuse, neglect and exploitation cases.

Additionally, provisions in the Criminal Code provide stiffer sentences for defendants who commit crimes against an elderly person or a person with a disability. It is also a crime to violate a civil restraining order.

B. Civil Remedies

In a civil case, a victim of abuse, neglect or financial exploitation, or someone on his or her behalf such as a guardian or conservator, can sue the perpetrator directly for monetary damages. The victim is the plaintiff and the perpetrator is the defendant. As a part of a civil case, a victim can also sue for injunctive relief. An injunction is a court order which directs someone to perform a specific act or to refrain from performing a specific act.

Thus, for example, an elder could sue a perpetrator for money damages for injuries sustained from an assault and battery and, at the same time, ask the court to issue an injunction prohibiting the perpetrator from having any contact with the victim.

As with criminal cases, bringing a civil case can be difficult. For example, the elderly victim may be a poor witness, statutes of limitations may have expired before the elder seeks help, pursuing a lawsuit can be costly and there may be a long delay before a court date.

However, Colorado law provides for an earlier trial date when a party suffers from an illness or condition which raises a medical doubt of survival beyond one year or if the person is age 70 or older and can prove to the court that he has a meritorious claim and a substantial interest in the case.

Another civil remedy is a restraining order, which can be issued separately from and independent of a civil suit. A restraining order is a court order that restrains a person from taking certain actions.

A third civil remedy is to seek the appointment of a guardian and/or a conservator or other protective arrangement on behalf of an elder under the Colorado Probate Code.

1. Civil Suits

There are a number of legal theories under which a victim of elder abuse, neglect or financial exploitation can sue the perpetrator. The following is representative only and is not intended to be an exclusive list of legal theories.

1. Assault is the willful attempt or threat to inflict injury on a person, and any display of force that would cause the victim to fear or expect immediate bodily harm. An assault can be committed without actually touching, striking or harming the victim. An example is shaking a fist in the elder's face in a threatening manner.

2. Battery is the willful physical contact of a person which causes bodily injury or is offensive. This can include punching, hitting or rough handling.

3. Intentional infliction of emotional distress is engaging in conduct for the purpose of causing severe emotional distress on another person or knowing that certain conduct will have that result. An example is threatening to put an elder in the nursing home if he does not "behave."

4. False imprisonment is the intentional restriction of a victim's freedom of movement. This can include the use of physical restraints, removal of the elder's means of transportation (e.g., cane or wheelchair) or locking the elder in a room.

5. Duress is coercing a person to do something against his or her free will, such as forcing an elder to sign a check payable to the perpetrator.

6. Negligence is the failure to use the care that a reasonably prudent person would use under similar circumstances, which results in harm to the victim. An example is failure to administer medication in a timely manner.

7. Conversion is the civil equivalent to theft. Conversion means that a person takes control over the property of another with the intent to deprive the victim of the property, such as stealing money or personal property.

8. Fraud and deception is the making of a false representation of a material fact to another, when the person making the representation knows that the representation is false and knows that the victim will act on it, thereby causing damage to the victim.

Examples include telephone scams, sweepstakes, requests to send money to "win."

9. Breach of fiduciary duty. A fiduciary is a person or entity who, as the result of a particular undertaking, has a duty to act primarily for the benefit of another in matters connected with the undertaking. This duty is often referred to as a fiduciary duty. An example of a fiduciary is a conservator or a stockbroker. When a person breaches a fiduciary duty, the victim incurs damages, such as loss of property or money. An example is self-dealing or using the elder's funds or property.

10. Unjust enrichment occurs when a person benefits unjustly, at the expense of another, and it is unfair for the defendant to retain the benefit. An example is an informal promise to provide care to an elder, being paid in advance, and the caregiver not providing the care.

11. Breach of contract. When a person enters into a contract with another, and fails to perform under the terms of the contract, the defendant has breached the contract.

An example is a written agreement to provide care to an elder, being paid in advance, and the caregiver not providing the care.

12. Constructive trust. When a person acquires the property of another by abusing a confidential relationship that exists between the two people, the court can remedy this abuse by imposing a constructive trust on the property. This means that the defendant no longer owns the property, but that it is held for the benefit of the plaintiff. For example, an adult daughter convinces her elderly mother to deed the home to the daughter without paying the mother. If the mother sues the daughter, the court could hold the property in trust for the benefit of the mother.

13. Other legal remedies. Malpractice (medical, accountant, legal and other professionals), violations of securities laws, etc., are also available to the elderly plaintiff.

2. Restraining Orders

Under Colorado law, C.R.S.  14-4-102, in cases of domestic abuse, a temporary and permanent restraining order can be entered by a municipal, county or district court in order to prevent such abuse. The restraining order can prohibit a person from threatening, molesting, injuring or contacting the party seeking the restraining order. Unfortunately, this statute does not address psychological abuse.

Another provision of Colorado law, C.R.S.  13-6-107, addresses restraining orders to prevent emotional abuse of the elderly. Elderly is defined as age sixty years or more. A temporary or permanent restraining order to prevent emotional abuse of the elderly may include restraining a party from repeated acts which constitute verbal threats or assaults; from repeated acts which constitute verbal harassment; from repeated acts which result in the inappropriate use or the threat of inappropriate use of medications upon a person; from repeated acts which result in the inappropriate use of physical or chemical restraints; and from repeated acts which result in the misuse of power or authority granted to a person through a power of attorney or by a court in a guardianship or conservatorship proceeding which results in unreasonable confinement or restriction of the liberty of an elderly person.

As discussed above, violation of a restraining order constitutes a criminal offense. Additionally, a person who violates a restraining order can be held in contempt of court.

3. Guardianship, Conservatorship and Other Protective Arrangements

The Colorado Probate Code, C.R.S.  15-14-101 et. seq., provides that an elder or someone on his or her behalf can petition the court to appoint a guardian and/or a conservator or to enter a protective order for the benefit of the elder. A guardian is a person or institution appointed by the court to make decisions concerning the person of someone who is incapacitated. For example, a guardian decides where the person will reside, what kind of medical treatment will be administered, etc. A conservator is a person or institution appointed by the court to manage the estate and affairs of a person who is unable to manage his or her property and affairs effectively. Instead of appointing a conservator, the court can issue a protective order, authorizing, directing or ratifying any transaction necessary or desirable to achieve any security, service or care arrangement meeting the foreseeable needs of the person in need of protection. An example of a protective arrangement is a court order permitting the sale of the elder's home. A probate court also has broad powers to order an accounting of all funds expended on behalf of the protected person.

C. Administrative Remedies

One of the most important administrative remedies available to a victim of elder abuse, neglect or financial exploitation is a law entitled Protective Services for Adults at Risk of Mistreatment or Self-Neglect Act. C.R.S.  26-3.1-201 et. seq. This law "urges" (but does not require) professionals and others who are in a position to detect abuse, neglect and financial exploitation of an elder to report to the county Department of Social Services or, during non-business hours, to law enforcement agencies, when they have "observed the mistreatment or self-neglect of an at-risk adult." The statute designates those who are "urged" to report in the following general categories: medical personnel (including hospital and nursing home personnel engaged in the admission of patients); mental health professionals; social workers; dentists; law enforcement officials; court appointed guardians and conservators; fire protection personnel; pharmacists; community centered board staff; financial institution personnel; state and local long-term care ombudsmen; and personnel, volunteers or consultants for any licensed care facility, agency, home or governing board.

Additionally, "any other person may report such known or suspected mistreatment or self-neglect of an at-risk adult." Once the Department has received a report, it is immediately required to "make a thorough investigation." A written report must be made within 48 hours. If it is determined that an at-risk adult is being mistreated or self-neglected, or is at risk thereof, the Department can immediately provide protective services if the adult consents. If the adult does not consent, the Department can file for the appointment of a guardian and/or a conservator for the adult. However, any protective services sought must constitute "the least restrictive intervention."

A victim of abuse, neglect or financial exploitation can also file a complaint against an entity or a person who is regulated by an administrative agency. For example, nursing homes must comply with the regulations of the Colorado Department of Health. Insurance companies are governed by the regulations of the Colorado Commissioner of Insurance. Stock brokerages must comply with the regulations of the Colorado Commissioner of Securities and the U.S. Securities and Exchange Commission. If the administrative agency determines that a potential violation of its regulations has occurred, it can conduct an investigation and take action against the wrongdoer.

Conclusion