ILLINOIS TASK FORCE ON ELDER ABUSE
SANDY BAKSYS TESTIMONY
THURSDAY, AUGUST 29, 2019
It is my honor—and duty—to come before you today representing not just myself, but thousands of other Illinois victims and survivors of MALICIOUS ELDER INTIMIDATION AND ISOLATION, THE MOST COMMON FORM OF ELDER ABUSE. Elder isolation within families is the emotional and/or physical isolation of an elder by one family or household member from some or all of the rest of the elder’s immediate family. An extreme form of emotional violence in itself, such exploitative isolation also enables every other form of elder abuse, from physical violence and neglect to financial exploitation.
Yet, unfortunately, our existing laws usually only attack elder abuse at a much later stage, after legal proxies, then physical “custody” and then monies, have been misappropriated and physical abuse and neglect may also have festered in an environment of isolation and secrecy. Such late-stage interventions are ineffective, from the victim’s point-of-view, because they occur after the elder and his longstanding family protectors have already been traumatized—after the elder and those who long and lovingly supported their elder’s independence have been broken in body and spirit, typically so that money / inheritances can be stolen. Disempowering and disinheriting “rival” family heirs is typically the elder isolator’s end game. (See USC School of Medicine study based on frontline elder abuse data indicating that most reported elder abuse is by a trusted family or household member. https://www.eurekalert.org/pub_releases/2019-08/uosc-fao081419.php .)
In my family’s case, although control over my father and his money seems to have been the ultimate goal of his isolator, I never made a complaint to the authorities of financial or physical abuse. (Although assets had been transferred behind the family’s back, as far as I knew, Dad’s physical care was meticulous).
All I wanted, and deserved, was to go on seeing my father after having been close to Dad all my life—and after having visited and taken care of my father every day for almost 12 years straight after moving back from Miami to do just that. I was the holder of my father’s only proxy powers–and also my father’s only daily (weekly, or even monthly) visitor as Dad aged from 84 to 91, at which time he suffered a health collapse that provoked the sudden return of an abusive family member to exploit Dad’s crisis to intimidate and isolate him. It only took three months for that long-absent, often hostile family member, whom Dad and I both suddenly had to depend on for help in Dad’s 24-7 homecare crisis–to lie to, pressure, and frighten Dad into transferring his health care power of attorney. And then, just one month later, Dad’s new legal agent moved him into her home, where I was never permitted to visit– despite Dad’s complete disability and advanced age–through his entire last 7+ years of life.
So, my fundamental question to the Task Force is this: How could the state of Illinois allow my abusive family member and her husband to take my 92-99-year-old, extremely aged and physically disabled father hostage in their home, not letting Dad receive even a single visit from me before he died—when I was the last person my father would ever want to be separated from? How could the state of Illinois permit that extreme emotional abuse without making Dad’s isolators either civilly or criminally liable?
You can’t even argue that Dad’s isolators needed to have the power to separate him from me for just cause, to protect him, because my father’s isolators never had to prove—or even assert—any just cause for their actions to anyone–not to Adult Protective Services, to law enforcement, or to any court. Although anguished and traumatized every day for almost eight years, I tried to hold my father’s isolators accountable through three different reports to APS—all of which failed because of my father’s utter physical dependence on his isolators, and so, because of his impaired ability to cooperate. In short, no Illinois law, agency or procedure ever held my father’s isolators accountable either to Dad or me—or to the state–for their extreme emotional violence against us and the destruction of our life-long close family relationship.
In my further testimony, I do my best to put you right inside the traumatic experience of an elder being victimized by what I call, “the voice of intimidation.” But these are the TOP-LINE lessons from my overall experience as a family victim of elder abuse:
- TO FIGHT ELDER ABUSE, YOU HAVE TO FIGHT THE ISOLATION.
- ACTION BY AUTHORITIES TODAY IS NOT EFFECTIVE BECAUSE IT COMES TOO LATE AND HINGES EITHER ON THE ALREADY INTIMIDATED AND ISOLATED ELDER’S COMPETENCY—OR HIS IMPAIRED ABILITY TO CONSENT TO COOPERATE AGAINST HIS ISOLATORS.
- IN FACT, WHEN A FRAIL AND FAILING ELDER IS MANIPULATED THROUGH HIS PHYSICAL DEPENDENCE AND HEALTH FEARS—WHEN HE IS THREATENED WITH THE WITHHOLDING OF CARE OR BEING PUT IN A NURSING HOME– THE ELDER’S ABILITY TO CONSENT IS IMPAIRED, EVEN IF HE STILL REMAINS MENTALLY COMPETENT.
- THE ELDER’S WEAKNESS AND DECLINE ARE THE UNIVERSAL VECTORS BY WHICH THE ABUSER USURPS THE ELDER’S LAST INDEPENDENT WILL AND LEGAL POWERS.
- ABUSERS WHO ISOLATE AND TAKE POWER OVER THEIR ELDER USUALLY SEEK TOTAL CONTROL OVER THE ELDER IN ORDER TO HAVE SOLE CONTROL OVER HIS MONEY.
- FIRST HELPING TO TAKE CARE OF THE ELDER, THEN TAKING CONTROL OF THE ELDER’S CARE, IS THE SUREST PATH TO CONTROL OVER THE ELDER, HIMSELF–AND UNDER CURRENT APS PRACTICES, THE BEST SHIELD AGAINST ANY INVESTIGATION OR ACTION FOR ABUSE.
- BUT EVEN THE ELDER IS ULTIMATELY A VECTOR–THE TRUE END-TARGETS OF ELDER ABUSE BEING THE ABUSER’S RIVAL FAMILY HEIRS, WHOM THE ABUSER DISEMPOWERS, DISINHERITS, AND HOLDS HOSTAGE BY HOLDING THE ELDER HOSTAGE.
- IT IS THROUGH THE ELDER’S WEAKNESS AND DECLINE THAT THE ELDER’S ENTIRE FAMILY BECOMES VULNERABLE TO ABUSE. IN FACT, IT IS THE FAMILY’S INABILITY TO FIND THE HELP IT CAN AFFORD IN A PROTRACTED HEALTH DECLINE AND ELDER-CARE CRISIS–WITHOUT HAVING TO RELY ON ABUSIVE FAMILY OR HOUSEHOLD MEMBERS–THAT LEAVES THE FAMILY VULERABLE TO THE ABUSERS IN THEIR MIDST.
Based on the above description of in-family elder abuse through elder isolation, the following are the principles that I believe must guide the Task Force in reforming our existing anti-elder abuse systems and laws:
- ISOLATION IS THE KEY AND IT REQUIRES ONE OR MORE DEDICATED CAUSES OF LEGAL ACTION TO MATCH THE ISOLATION FACT SET.
- FRAIL AND ISOLATED ELDERS OFTEN LACK THE CAPACITY TO CONSENT TO ANTI-ABUSE INTERVENTION BECAUSE OF ABUSERS’ UNDUE INFLUENCE PREDICATED ON ELDERS’ INABILITY TO PROTECT AND CARE FOR THEMSELVES.
- THE WILL OF THE DEPENDENT AND MANIPULATED ELDER IS NO LONGER INDEPENDENT.THEREFORE, THE ISOLATION FACT SET MUST REST ON THE ABUSIVE ACTIONS OF THE ABUSER, NOT ON THE COMPETENCE, COOPERATION, OR CAPACITY OF THE ELDER.
- LONGTIME FAMILY SUPPORTERS OF THEIR ELDER’S INDEPENDENCE ARE CO-VICTIMS OF THE ABUSER’S ATTACKS–YET WE ARE OFTEN UNABLE TO COMMUNICATE AND UNDERSTAND THE TRAUMA WE ARE SIMULTANEOUSLY WITNESSING AND EXPERIENCING. AND THE TRAUMA DOESN’T END WHEN THE ELDER DIES.
- AS THE ELDER IS MANIPULATED THROUGH HIS PHYSICAL WEAKNESS AND CARE NEEDS, SO, TOO, IS THE ELDER’S FAMILY MANIPULATED THROUGH THEIR LOVE OF THE ELDER AND THEIR INABILITY TO MEET HIS NEEDS WITHOUT THE ABUSER’S HELP.
- THEREFORE, FAMILY CO-VICTIMS MUST BE RECOGNIZED AND PROTECTED, ALONG WITH THEIR ELDER, BY A LEGAL SYSTEM THAT TREATS IN-FAMILY ELDER ABUSE AS WHAT IT REALLY IS: A FORM OF DOMESTIC VIOLENCE OR ABUSE.
- RECOGNIZING AND SUPPORTING THE ELDER’S LONGSTANDING FAMILY SUPPORT SYSTEM (WHEN THAT IS BEING ATTACKED IN ORDER TO ISOLATE THE ELDER) IS THE BEST WAY TO PROTECT THE ELDER LONG-TERM.
- IMMEDIATE FAMILY HAVE A MUCH STRONGER, LONGER RECORD OF DEVOTION TO THEIR ELDER’S WELL-BEING THAN THE STATE EVER COULD, BUT THEY NEED THE STATE’S SUPPORT AND PROTECTION AGAINST THE ABUSERS IN THEIR MIDST AT THE FAMILY—AND THE ELDER’S—WEAKEST POINT.
- ILLINOIS NEEDS LAWS THAT CAN DETER ANY FAMILY OR HOUDEHOLD MEMBER IN THE PROCESS OF ATTACKING AN ELDER’S FAMILY PROTECTORS TO GAIN SOLE POWER OVER AN ELDER IN DECLINE AND TAKE HIM HOSTAGE. THE ONLY WAY TO DO THIS IS WITH A CLEAR STATEMENT IN THE LAW OF ELDERS’ AND FAMILIES’ RELATIONSHIP RIGHTS, AN ACT DEFINING AND OUTLAWING ELDER ISOLATION, WITH CLEAR PENALTIES THAT ARE SEVERE ENOUGH TO NEUTRALIZE ANY MONETARY GAINS THE ISOLATOR COULD HOPE TO OBTAIN FROM ISOLATING AND INTIMIDATING THE ELDER TO GAIN CONTROL OVER HIS ASSETS.
- AS THIS TASK FORCE UPHOLDS THE VALUE OF THE ELDER’S GREATEST POSSIBLE INDEPENDENCE AT EVERY STAGE OF DECLINE, YOU MUST ALSO ASSUME, AS PART OF YOUR PRIMARY MISSION, THE CO-PROTECTION AND SUPPORT OF THOSE ELDER FAMILY WITH A CONTINUOUS, BENIGN, AND LOVING COMMITMENT TO HONORING WHOM THEIR ELDER IS—AND WHOM THEIR ELDER LOVES—TO HIS VERY END OF LIFE.
I realize that what I’m asking of you today is nothing less than a complete paradigm shift away from the mainline concept of elder abuse defined as either a form of “stranger danger,” or as a cohort of crazy/greedy family members engaged in a mutual bloodletting at the elder’s expense. The fact is, the elder is often not the only “good guy” in the abuse scenario, or the only victim.
As one of the two other written personal testimonies I am distributing to you today, states: “This is not a family dispute. This is psychological and financial abuse of my mom by a family member. I never thought this could ever happen in my family.” (One of the greatest challenges of every victim is that very denial and disbelief, which produces horror and paralysis just as you most need to protect your elder and yourself.)
Yet today, our mainly late-stage interventions barely recognize the destruction of the elder’s long-time family support system through intimidation and isolation because our systems focus on only the most severe physical abuse emergencies. On its face, this appears to be a way of targeting scarce resources on the most draconian outcomes of the elder abuse process—elders starved and beaten to death behind closed doors. I agree that these can be extreme, end-stage outcomes.
But I also believe there is a smarter, more effective way to target our interventions and resources—while simultaneously preventing much more elder and family suffering–essentially by reconceiving elder abuse as a psychological process of intimidation and isolation based on elder weakness–and intervening in it much earlier. We can create dedicated, new causes of civil or criminal action with serious penalties in order to unleash the power of the good family actor who is also being traumatically isolated but still wants to go on protecting their elder as they always have. We can fight elder intimidation/isolation when it is first reported, while also increasing awareness of intimidation’s earliest signs—AND while also increasing awareness of the aforementioned serious penalties—along with the need for increased reporting of this problem common to so many families.
To tell you the truth, if you look at elder relationship and visitation history and pre-isolation family dynamics, it’s not that hard to identify the good family actors. If you competently investigate a family member’s isolation / denial of visitation report by speaking to the elder’s immediate family and closest friends/neighbors, it’s not that hard to figure out that the reporting family member is preponderantly a good actor being maliciously excluded from their elder’s life precisely because they wanted to go on honoring their elder’s remaining independence, instead of swooping in to take advantage of the elder’s decline and loss of independence, as the isolator invariably does. The system must simply stop pretending that it’s impossible to discern the family supporter of an elder’s independence from the family betrayer and violator of it.
One of my saddest realizations last year was that I lost my lifelong relationship with my father at his end-of-life because Dad’s decline and the space I left for Dad’s remaining free will inevitably became attractive enough to be invaded by a family member who saw that space as undefended and defenseless—as an unclaimed territory that practically cried out to be conquered. I lost my dad and he lost me because an unscrupulous family member did what I would not—steal dad’s last independence when he was desperately weak and sick and at his lifetime lowest point, physically and mentally, after the traumatic loss of his independence. But is this the message we want our elder protection system to keep sending to our vulnerable elders’ family members: Either use your elder’s health decline against him to take away his last bit of autonomy—or someone else will (before someone else does)?
Exploiting Elders’ Health and Home Care Crises
As I’ve written in more than a dozen letters-to-the-editor around the state this summer, although in-family elder abuse can start more subtly, in its most sudden and traumatic form, it starts with a medical and homecare crisis that steals the elder’s last physical independence. This is seen as the opportunity for an unscrupulous family or household member, whom the family must trust to be alone with the elder, to use that regular alone-time to secretly pressure, threaten, and intimidate the elder at his lowest point physically and mentally. (Our current laws rightly enshrine failing elders’ continuing personhood and maximum remaining independence at all stages of decline. However, they do not effectively recognize that a precipitously re-written will or transferred legal agency may be the result of impaired will arising from an unscrupulous party’s exploitation of an elder’s health collapse. This creates tremendous obstacles for a good-actor family member who has already been been bullied, betrayed, and fraudulently stripped of their beloved elder’s powers.)
Because I had been Dad’s long-time, sole caregiver and remained focused, in his crisis, on honoring his maximum independence, a bad-actor family member (who was unemployed while I was working) was able to swoop in, exploit Dad’s trauma (and my trust in her to care for our father for 7 hours a day, while I cared for him five hours each day) to transfer our father’s legal powers, and move him into her home in exchange for a promised, secret, upfront payment of $100,000. Dad’s bank account co-signing privileges were then transferred from me to Dad’s isolator, and then I was completely banned from visiting.
And all the time that Dad and I were being traumatically bullied and separated while he was still in his own home, and later, as I desperately tried to figure out how to go on visiting my father in the home where his new power of attorney was barring the door, our current elder protection system protected not Dad and me, but the abuser who had used intimidation and isolation to take Dad hostage. The system protected the abuser who held Dad’s most recent legal proxy despite how that power had been obtained and how it was being used, behind closed doors, against my father’s remaining family rights and impaired will. Despite their centrality to elder abuse, this manipulation and isolation of my father was not a focus of any anti-abuse law or elder protective service.
Elder Isolation and ‘The Voice’ of Intimidation
The emotional, then physical isolation of a frail and dependent elder is perhaps the easiest form of criminal intimidation to execute. Yet there no clear enforcement mechanism against elder intimidation in our Criminal or Probate Codes that I can find.
When a frail elder like my father has suddenly lost his last independence and is fighting for his life through repeated hospitalizations and rehab stays and can no longer be alone for one minute in his own home, his critical need for healing peace and family harmony can be turned against him by a trusted but unscrupulous family or household member. While left alone in family trust to care for the elder, the abuser disturbs the elder’s peace by making himself or herself a nagging voice of false strife. That voice in the elder’s ear for many hours a day constantly invents and complains of problems that can only be solved by the elder transferring his legal proxies to the complainer, moving in with the complainer, or both. And to restore the peace he so desperately needs, the elder finally acquiesces and does what “the voice” wants, for no other reason than to satisfy the voice and end the strife.
The elder “buys” the healing silence the voice is deliberately disturbing because he needs to stop hearing that “the voice” is the only one who really cares for him despite the other beloved family members who are taking care of him many hours each day. He needs to stop hearing that the voice is the only one who can save his life—and that his other family caregivers are actually responsible for his medical setbacks: that they are actually trying to kill or will kill him.
Depending on the perceived amount of time the abuser has to “turn” the elder, the voice can finish its brainwashing in a week or a month. But sooner or later, the voice of false strife reaches its powerful crescendo: The end of the elder’s world is at hand. Unless the elder stops resisting and finally transfers his legal proxies, the voice must finally stop coming to get the elder out of bed in the morning or putting him to bed at night–and this will cause him to be put in a nursing home.
By the time you, the long-time, continuing family caregiver (and your elder’s proxy-holder) finally find out what has been happening, it may be too late for you to stop your elder’s brainwashing or block its intimidating effects. At this point, you need some form of outside help to stop the abuser in his or her “intimidation” tracks. You need help because you still need the abuser (with the voice) to spend hours every day alone with the elder in his home on a 24/7 care schedule. There are simply not enough other family hands on deck, and there is not enough money to pay for round-the-clock CNAs to indefinitely keep your father in his preferred home healing space.
At the same time, it’s way too late for any direct appeal to your father, himself. This is because you cannot add, to the lying strife the voice is already bringing to your elder in crisis, one more iota of strife, not even the necessary strife that would result from your elder hearing the truth. The elder, himself, confirms this by never telling you anything about the voice. And the emotional isolation in which the voice wraps the elder is the elder’s own fear that if other family members find out what the voice is saying, there will be a fight— the ultimate thing the elder must avoid. The very possibility of such a fight in the midst of the elder’s crisis only confirms what the voice has been saying all along when it warns it is under attack, fears being eliminated from the elder’s life, and therefore needs the elder’s legal powers to continue rendering his care. Most devastating of all, the elder under pressure, in secret, actually comes to fear his unaware, uncomplaining family caregivers as the enemies the voice says they are. They become the threat, the ones to be excluded, left outside of the loop.
This is how the lying strife the abuser is constantly manufacturing and imposing on what should be your elder’s healing time literally sucks all of the air out of the room, leaving no space even for what should be some reassuring truths: that in the big picture, the elder has a competent family care team that’s covering all his care hours; that, in fact, all available family hands are on deck for the elder’s good, and all necessary sacrifices are being made to keep the elder at home to hopefully stabilize, heal, and recover as much of his former independence as possible. There is no family crisis—no one is acting up or acting out except in the deceptive, manipulative and secret world being created for the elder by the voice.
But, unfortunately, now you, as the bad guy in the abuser’s fictions–and as the potential bearer of so many now-dissonant truths–you, the longstanding family caregiver and proxy-holder now become the exact person your elder can no longer afford to trust or communicate with. This happens even though you are dedicated, sacrificing to your daily limit through a whole series of elder health and homecare crises, constantly traumatized on your elder’s behalf, and INNOCENT. An invisible but palpable barrier comes down, in the form of your elder’s growing silence in your presence, even while you are caring for him five hours a day, seven days a week–even while you, yourself, are enduring non-stop attacks by the abuser to your face(s) just out of the elder’s hearing range, on the phone, or when the elder is asleep.
Relentlessly, you are falsely made into your beloved elder’s enemy, even though–or more important, because–you are sucking up every false and painful attack the abuser has been launching at you, even bullying and blaming you for your beloved parent’s medical setbacks—while you never imagine this member of your own family, for God’s sake, could also be secretly bullying your elder in the same way. (Who, with any family ethos, could do such a thing at a time of life-endangering illness and trauma, when the only real way the family can contribute to their beloved elder’s survival is by bringing him their healing care and peace?)
Unable or unwilling to imagine such a magnitude and scale of betrayal in the midst of your elder’s crisis, you attribute your elder’s silence to his medical and emotional trauma –and because of who you are, that only strengthens your resolve to be a good family actor and never, in any way, to fight your bullying attacker through your elder. To the contrary, you will not speak a single word against the bully because they are your elder’s other principal family caregiver–a member of your parent’s family team. You just keep sucking it up and trying not to overlap with the bully at the change of shifts. And so, when the unimaginable moment comes that you suddenly learn about the voice and the powers it has gained, it’s a shocking ambush. Legal proxies, maybe even your elder’s residence, have already been changed in secret–and it’s not so much these switches, in themselves, but what these transfers away from you and behind your back, by your elder, mean.
And in your inexperienced under-estimation of your father’s vulnerability, you cannot believe—but also can’t help believing—that your dad has actually betrayed you–has apparently been told outrageous lies about you that he has believed while you were actually sacrificing to your limit every day, while working, to both care for him and spare him the misery you have been suffering just to continue on in your helping role. All that matters, in your shock, is that somehow, despite your total innocence and your sacrifices, even despite all you did as your father’s sole visitor and helper every day for years, someone in your own family has unimaginably caused you to lose YOUR FATHER’S TRUST AND CONFIDENCE.
The suddenness and depth of this betrayal leave you traumatized and paralyzed–manipulated, yourself, into hoping that acquiescing to the abuser’s power grabs will somehow get her to “let up” on your relationship with your elder. You even tell the abuser that’s all you really care about, your relationship with your father. You don’t need to be the one in charge. In your heartbreak and trauma, you feel no power to envision or protect either yourself or you elder from what may come next. That’s why you just end up hoping the betrayals will somehow magically stop here with the formal powers “the voice” was so determined to get.
But what happens is just the opposite. The secret manipulations continue. Your elder’s emotional isolation is followed by physical isolation in which the power of the abuser, the power of the voice, is compounded by the abuser making him or herself the elder’s sole caregiver—the only family member the elder regularly, or ever, sees—due to traumatic, new denials of family visitation and caregiving.
From Intimidation to Undue Influence
Under the power of long-term physical isolation, intimidation does evolve into a seemingly more benign “undue influence” that no longer must be reinforced by such extreme threats as abandonment or the withholding of care. But this doesn’t mean the voice ever stops claiming that the now-absent family members no longer love or even care about the elder, two assertions that increasingly seem proven by the day-to-day, long-term reality of the elder’s isolation from his family. (Four years before he died, but after we had already been separated for three straight years, my father told me I would only see him against in his coffin at the funeral home. If that’s not powerlessness and resignation, I don’t know what is.)
Even though heartbroken family members are being barred from visiting, the declining elder can lose touch with this reality (when the abusive isolation regime is maintained without exception), precisely as the abuser means for him to, as the voice’s bleak assertions and the emotional desert of isolation take their toll. At the same time, the elder’s constant and growing caregiving needs leave him more and more dependent on his sole caregiver and their terms for his peace and stability –their terms for the absence from the elder’s life of overt threat or strife.
As elder isolation, in this way, reinforces itself over time, deliberately excluded family members enter a new kind of hell. For any action they may try to take to fight their elder’s isolation, from making a report of isolation to Adult Protective Services or filing for guardianship–only raises the specter of their captive elder being subjected to renewed intimidation or ramped-up pressure from his isolator. The workings of isolation on the dependent elder in failing health are so toxic that they also isolate, manipulate, and disempower the elder’s excluded family members, at every turn, through their very love and concern for their elder.
What is the effect of our courts, state’s attorneys and APS on this situation? Family co-victims of abuse face almost a total lack of standing to effectively defend their elder or themselves because the state’s “eyes” only “see” the abuser’s sole-caregiving, physical custody and legal proxy-holding, not to mention the abuser’s homeowner rights. Due to their prima facie acceptance of the abuser’s misappropriated elder proxies (regardless of the conditions under which those were acquired), plus their acceptance of the abuser’s physical custody of the elder via ownership or control of the elder’s residence–concomitant with the failure, at every turn, to consider the elder isolator’s undue psychological influence—all components of our anti-elder abuse system combine to grossly advantage the abuser over abused family members and their elders.
All our existing anti-elder abuse laws and procedures combine to give elders and family victims of abuse the same message that the abuser does: that we must all succumb to the abuser in exchange for the weaponized caregiving the abuser can provide, when we can’t do it all, ourselves. The underlying assumption of our existing laws, as I have experienced them through three failed isolation complaints to APS, is that the care and shelter the abuser can provide negates every other value—including the care and love other family members want to provide—totally superseding any and all family rights that the abuser doesn’t wish to honor at the captive elder’s end-of-life.
Reforming the System
But there are many alternatives to reforming a system that concerns itself exclusively with our elders’ physical care and custody, to the exclusion of all other values, and hinges every action against elder abuse on the elder’s free will and competence, even when, by definition, our elders are weak and under pressure through their growing weakness. There are many points of attack, even ones that I can’t see and some of you will, due to your specific expertise, on our current misguided elder protection system that unfortunately often strengthens the abuser’s hand at every point that a family co-victim of abuse would try to intervene.
There are multiple ways the power of our laws and the state can be brought to discourage a family abuser’s manipulation of an elder’s overwhelming physical needs—and the manipulation of the rest of the elder’s family’s through their inability to meet those needs without the abuser’s help.
If you get nothing else from my testimony, please ask yourself this: If elder abuse is most commonly committed by a trusted family or household member, and if isolation underpins and enables every other type of in-family / trusted person elder abuse, then why don’t we have a single effective law, with penalties, that provides a dedicated elder isolation cause of action to remedy an elder isolation set of facts?
Why should family members who are being excluded from their beloved elder’s life, without cause, be expected to challenge our elder’s mental competency in guardianship or POA proceedings when it’s the isolator, not our elder, who has vehemently vowed to everyone within hearing that the excluded family member will never be allowed to come and visit their elderly parent again? When the elder had a longstanding, positive, and dedicated care-receiving relationship with the excluded family member, and the elder is so clearly physically under the power of the isolator for all his functions of daily living—while also in physical isolation in the isolator’s home?
As another family victim of elder abuse pointed out to me, it doesn’t take court-appointed guardianship for a frail elder to be isolated. So, why should victimized family members be forced into complex guardianship or power-of-attorney challenges to restore visitation?
A Dedicated Cause of Action for a Distinct Isolation ‘Fact Set’
Although family isolators’ ultimate motivation may be to disinherit rival heirs, their malicious denials of visitation are distinct and extremely time-sensitive abuses that stand on their own facts and that require their own remedies. Dedicated remedies must be provided through APS action, criminal law enforcement, or a unique civil pathway not encumbered by a misguided and obstructive focus on either the disabled and isolated elder’s presumed mental competency or his presumed, yet highly unlikely, under the circumstances, “free” will.
To the abuser, especially the self-justified family caregiving type, what the elder wants is not important when it doesn’t coincide with, or directly opposes, what the abuser wants. But any deliberate disregard for the elder’s longstanding family relationships and rights—known in the law as the elder’s best interests–must be addressed directly and expeditiously through APS and the courts as the primary issue when it is the primary issue. It only advantages the isolator with control over the elder to keep throwing the wrench of elder competence, capacity, or cooperation into the isolation / visitation legal scenario.
Asserting difficult-to-ascertain elder competency and independence-of-will obstacles when a family caregiver is literally, physically blocking the door to the frail and dependent elder’s residence, for their own personal greed, animus, doesn’t allow unreasonably excluded family members to go to court in a case that they can win. All current legal frameworks for addressing isolation and visitation are terrible ones for victims’ rights. Yet no one should be able to prevent close family visitation at a disabled elder’s end-of-life without proving cause. And the full legal burden of cause should fall on the person holding “custody” (holding the elder hostage)–and denying reasonable and regular close-family visitation. The burden of dealing with cause should not hinge on the weak and intimidated, isolated elder–or on excluded family member to prove that they are not a danger to their elder and that there is no cause.
One year ago, I spearheaded the passage of a unique and dedicated civil pathway called the Kasem-Baksys Visitation Law, now Illinois Public Act 100-0850. Yet my law, as cautiously drafted by the Cook County Public Guardian’s Office, is strewn with the very obstacles I’ve just described, and desperately and immediately cries out for reform as described in the Appendix.
Please help us end in-family elder abuse by finally opening a true legal angle (or angles) of attack on the elder intimidation and isolation that make all other forms of abuse possible. The cry for justice that is not answered in these cases does not die, even when the elder dies. Family victims do not magically stop suffering from the loss of a parent taken from them while still alive. And there is no way to restore the lost time and love that elder isolators steal from you in order to steal family power and assets. Ultimately, what I hope for are laws that can deter any family member in the process of attacking the rest of the elder’s family (in order to take the elder emotionally or physically hostage) with a cause of action and with penalties these abusers will have to fear long after the elder dies. The ultimate way to do this is to establish an elder abuse “riot act”—a bill of elder and family members’ relationship rights with violation definitions and penalties clear enough, and severe enough, to neutralize any perceived financial gains isolators seek from seizing control of their elder at the elder’s end-of-life.
Removing the Elder from the Isolator’s Crosshairs
As it stand now, our laws don’t give standing to good family actors who are traumatized co-victims of abusive isolation, don’t recognize the primacy and pain of elder isolation, and consistently put the frail and isolated elder in the crosshairs for ramped-up threats and intimidation by requiring such elders not just to weigh in on—but in effect, to officially substantiate their own abuse.
In the earliest, most traumatic months and years of Dad’s separation from me, when there was still enough of our relationship left to tempt me to do something to try to protect it, the drive to go to court was always met with a new horror: the fear that under threat of losing his sole care arrangement with his abuser, my father could be induced to renounce his desire to see me—induced, even, to denounce me in open court. This fear was constantly, indescribably acute and one of the most traumatic aspects of my entire experience.
A woman who’s right now going through the trauma of being cut off from her disabled mother in an assisted living facility in southern Illinois, recently e-mailed me that after reporting her mother’s isolation to Illinois State Police, she received a call from the police telling her that, in response, her mother had stated that she never wanted to see or hear from her excluded daughter again. This no doubt occurred at the behest of the elderly mother’s isolator. It was retaliation–the screws being tightened—in response to my friend’s isolation complaint to the police.
This is what I wrote to that lady, who is living my own victim nightmare:
“I am so sorry you had to so painfully hear from a policeman that your mom supposedly doesn’t want to see you anymore. The horror is you have to wonder how much of that is self-protection from the abuser’s ramping-up the pressure, and how much your mom may actually have had her feelings about you changed. I understand, I understand, and I hug you with that wounded part of my own soul.”
Following are several changes to our laws and adult protective procedures that I believe will combat elder isolation:
- Revise the Kasem-Baksys Law, Public Act 100-0850, to include as targets of a petition for elder visitation family caregivers who hold POAs for healthcare, person, or assets. Remove—or enhance the elder consultation language of the act to include a qualified court evaluation of the elder for the undue influence likely to result from the isolation caused by the denial of family visitation. The court supervision section of the POA act requires a judge to find the principal without capacity to change or restrict a POA in order for the court to intervene, ostensibly on an issue like family visitation. But the denial of visitation may rest on personal malice, homeowner rights, or some other power not even derived from the POA. Furthermore, the whole intent of the Kasem-Baksys Visitation Law is to provide a direct recourse to justice on visitation that is being unreasonably denied by a family caregiver who is empowered not just by the POA, but by ownership or control of the elder’s residence, resulting in a kind of physical custody of the elder—as well as by being the sole provider of the elder’s homecare needs. The original intent of this law was to provide access to the courts in the urgent interest of family rights for frail and failing elders and their longstanding significant others—without excluded family members first having to address the isolated and disabled elder’s mental competence or capacity to act.
- As HB 3065 attempted earlier this year, immediate family and/or friends, household members, and neighbors who are longstanding significant others of the elder all must be consulted by APS when responding to an abuse report, including a report of isolation or confinement. And the preponderance of the facts in these witness statements (which can even be delivered via e-mail, based on filling out a standard form), should be sufficient for at least an initial finding by APS that an elder is being intimidated and isolated—without having to rely on the ability of the abused elder to stand up for his own rights and confirm his own abuse—or consent with his impaired will to having his immediate family consulted. APS law and procedure must be modified at least for such findings to be delivered to the reporting party for action in civil court. Additional penalties for isolation and confinement under the Elder Abuse and Neglect Act and/or the Adult Protection Act would be an even stronger deterrent.
- To enhance a revised HB 3065, pass my proposed “Right of Elders Not to Be Isolated or Confined Act” to underscore the instrumentality of isolation in all subsequent and concomitant forms of abuse, and to deter the destruction of elders’ families at their end of life. Specifically, my proposed act provides elders the right to continue the same close relationships, after any loss of independence, that they enjoyed before losing independence, in as close to their long-term mode and regularity as possible, with only the minor restrictions ictated by the elder’s physical decline and new living circumstances. Include meaningful civil or criminal penalties for elder isolators in this act.
- Pass the Model Kasem Visitation Law that places the burden of proof for establishing cause to deny close family visitation (communications) on the family caregiver/custodian who is denying visitation (communications). Or, pass a law that states that immediate family / domestic partner visitation with an elderly or disabled Illinois adult cannot be denied by a family caregiver without cause, and that to the extent that cause can be proven to exist, supervised or restricted visitation must be allowed, when appropriate, before visitation rights are removed. Include civil or criminal penalties for malicious denial of close family / domestic partner / significant-other visitation.
- Alternatively, or additionally, pass legislation that will allow family co-victims of elder isolation to sue elder isolators for “alienation of affection” or “loss of relationship” in civil court.
- HB 347, which the governor signed last month, added various types of elder assault and battery that, when resulting in criminal conviction, will bar the abuser from inheriting from the abused elder’s assets, even in compensation for providing care. Yet intimidation is also a crime under the Illinois Criminal Code—and the bar for intimidating a medically traumatized and already frightened, dependent elder is much lower than intimidating a healthy, independent adult. Therefore, the specific threats and qualities of elder / disabled intimidation should be added to Illinois Criminal Code, so that the appropriate disqualifying criminal conviction for intimidation can simultaneously be added to Probate Code. In other words, Illinois law, in defining intimidation of an elder for criminal and probate purposes, must recognize the unique vulnerability and susceptibility created by old age and its attendant physical decline and loss of independence.