How Illinois Can and Must Combat Elder Abuse

From: Sandy Baksys, Springfield, Ill.,  sandybaksys@gmail.com

CC: CO-CHAIRS OF THE ILLINOIS TASK FORCE ON ELDER ABUSE, SENATOR RACHELLE CROWE AND REP. KATIE STUART; ILLINOIS STATE BAR ELDER LAW SECTION CHAIR AND VICE-CHAIR, AMBER DREW AND WALTER ZUKOWSKI;  DIRECTOR OF THE ILLINOIS DEPARTMENT ON AGING, PAULA BASTA; PRESIDENT OF THE ILLINOIS GUARDIANSHIP ASSOCIATION, SHARON RUDY; DIRECTOR OF THE OFFICE OF THE STATE GUARDIAN, BARRY LOWY; DEPUTY DIRECTOR OF THE OFFICE OF THE COOK COUNTY PUBLIC GUARDIAN, DANIEL BELKO

With the creation of the new Illinois Task Force on Elder Abuse, our state has a unique opportunity to examine and reform its approach to protecting frail and failing seniors (and their aging or aged family protectors) from the deeply traumatic psychological, financial, and physical abuse that is far more common—and far more exempt from the very laws meant to prevent and punish it–than many are willing to admit.

All elder abuse is a violation of the trust of the targeted elder. In stranger scams, the elder is violated by someone who temporarily poses as a person of authority or someone deserving of the kind of trust usually enjoyed by a friend or family member. We hear stories every day about seniors falling victim to such scams online, door-to-door, or on the phone. Even more important, we all accept, almost instinctively–without question–the existence of an everyday elder vulnerability to being scammed out of his or her savings by a clever stranger. We accept this general elder vulnerability apart from any specific elder health collapse or crisis—without any long-term access to the elder by the scammer.

How much easier, then, should it be for our state’s elder protectors to accept the vulnerability of a senior to being “scammed”—intimidated, shamed, deceived–out of his lawful legal proxies and assets by a family member who leverages a lifetime of trust during hours of private caregiving access, every day, to a senior in the throes of a full-on health collapse—an elder who suddenly can no longer perform even a single function of daily living without assistance—who has lost his or her precious lifelong independence without warning and has been bouncing back and forth between healthcare facilities and treatments with no hope or end in sight? Can any of us even imagine facing this kind of vulnerability at our current age, let alone facing all that as my father did at age 91, as one of his own adult daughters, during her private care-giving shift with Dad every day, exploited his profound weakness and fear to threaten him with loss of his morning care and with being “put in a nursing home” if he did not give her his healthcare power of attorney?

As my father’s original and true legal agent, it has been my personal and family tragedy that Illinois law grants broad powers, in secrecy, to agents under even misappropriated and mis-used powers of attorney. After mis-appropriating her powers, my father’s abusive agent could rely on the bulletproof protections of our POA statute while she moved our extremely aged and disabled father to her home behind the backs of the rest of our family, switched her name for mine on Dad’s savings account, and received a massive transfer of funds from our father’s accounts shortly after moving him to her home. Worst of all, Dad’s abusive agent was immunized by Illinois law while she used her misappropriated powers and ownership of domicile to prevent Dad from receiving even a single home visit from me for seven straight years, all the way until he died at age 99. My father and I had to endure this extreme emotional violence even though I had visited and supported him in his home every day for the preceding 12 years.

Would it surprise any of you that such broad, guardianship-like powers to wield sole control over frail elder’s life and affairs—even isolate him from his longtime closest child–could attract the worst kind of actor with the worst intentions? Would it surprise you that such powers can be obtained through intimidation, bullying, and deceit from an elder in health collapse? That such powers are routinely obtained fraudulently and in secret, behind the rest of the family’s back, without any of the expense, legal vetting, or other hurdles required for court-appointed guardianship? Probably not—not really–even though few in our eldercare establishment have ever seemed to want to take on POA statutory reform, despite the statute’s broad actual–not just potential–abuse.

In the guise of giving elders a free hand to appoint and empower a legal proxy, the current system barely concerns itself with protecting anyone from such vast potential for abuse by the very vindictive or unscrupulous individuals such power is bound to attract.  As if the decline-based malleability of an elder does not create enough of a power vacuum for an unscrupulous individual to fill, such elder vulnerability can be manipulated to create a legal entity, a legal force, far more powerful than any the failing elder would be capable of exercising, himself.  And once misappropriated, that legal power can be wielded at complete odds with the elder’s true intentions and best interests.

Doesn’t it make sense that the greater the power a law creates, the stronger the supervision and restraints on potential abuse of that power the law should provide?  But the current POA system gives the same free rein to elder manipulators and abusers that the law and its supporters rightly mean to grant to elders who are not being manipulated and to agents who exercise their powers lawfully and dutifully.

Isn’t it long past the time for our state to seek a better balance between the vast discretion POA statute grants and our current almost total lack of protections and oversight?  Isn’t it time we stop placing the human sacrifice of so many elders and their family members, like my father and me, on the altar of the purist legal principle that any person should be allowed to bestow, revoke or change his or her legal agency at any time and under almost any circumstances, in total secrecy, with minimal remedies for cases of abuse?

Our state must finally end this statute’s blind authorization and protection for legal agency regardless of how and when acquired. It must criminalize elder intimidation and deception via threats well-known to the eldercare establishment (the threat to withdraw or withhold care or to place the elder in a nursing home).

 STATUTORY BARRIERS TO COMBATING ELDER ABUSE

No one would assert that we must first undertake an expensive and protracted court proceeding and find a senior mentally incompetent in order to pursue that senior’s restitution from a phone or Internet scam. Most authorities in law enforcement would further assert that a senior-scam victim’s permission should not be required in order to bring his or her scammer to justice.

Yet almost all potential remedies in our current laws for legal proxy-based elder abuse, such as the extreme and unreasonable denial of visitation that Dad and I suffered, require either court-proven mental incompetency or the verbal approval/assent of the elderly victim. This includes our Adult Protective Services Act, under which APS elder abuse investigations and interventions are hindered by their own rules–rules that generally don’t allow the agency to move against reported abuse unless the reported victim agrees to the investigation and the intervention. Likewise, the Illinois POA statute and the Probate Act of 1975 each requires a court finding of the abused elder’s incapacity or incompetency for another party either to step in and act as guardian–or to revoke an existing, abusive legal agency.

In lieu of a frail elder’s inability to act, there is only one, new law on the books that does NOT require an elder’s family protector to first undertake the protracted and complex process of asserting and proving an elder’s mental incompetency, in every instance, before petitioning to restore family visitation. Yet even this law, the 2018 Kasem-Baksys Visitation Act, whose creation I spearheaded, does not permit a petition for visitation if the alleged elder abuser/isolator holds a legal proxy, or if the elder is under legal guardianship.

When I was negotiating the text of the Kasem-Baksys Law, I was told that there were already provisions in both guardianship law and POA statute for family members to petition for visitation, so that my law would close an important, but final loophole in access to the courts to end abusive elder isolation. Yet, I recently learned that the right to petition for visitation only exists, newly, in guardianship statute (due to the 2016 Kasem Law amending the Probate Act of 1975). Contrary to what I was told, my law to close a loophole has one of its own, because, as I’ve recently learned, POA statute DOES NOT contain an avenue for a principal’s immediate family member to petition for elder visitation, even when that is being cruelly and unreasonably denied by the agent.

Furthermore, even though my new law was aimed at providing the right to petition for elder visitation without first having to prove one’s elder’s mental incompetency, I found that the only way I could appeal for visitation, under POA statute, was first to challenge, then prove, Dad’s mental incapacity under that statute. Three of my isolation reports to APS failed for lack of my father’s “permission,” i.e., his verbal admission, in the midst of his total dependency on and isolation by his abusers, that he was being isolated from me.  As a result, Dad’s access to visitation with me died in the statutory stranglehold of laws written ostensibly to safeguard his competent wishes, but which, by making no provision for the malicious manipulation and impairment of Dad’s wishes, in his great weakness–instead empowered and immunized his abusers.

Every current Illinois law posited on elder free will–without considering the possibility of vulnerable and manipulated or impaired will–effectively bullet-proofs the exploitation of an elder’s health collapse for abusers’ gain.  Such immunity also advantages abusers, long-term, through the isolation of the elder and secret and sole control over the elder’s care, funds, and domicile that they are permitted to maintain until either the elder dies, or there is nothing left of the elder’s relationships or estate that can be redeemed.

When writing or reforming Illinois statutes, lawmakers and legal lobbies, until now, have strongly resisted positing an elder abuse “fact set” that rests on active, malicious interference with–and impairment of–a vulnerable elder’s free will.  However, in the case of elder isolation, in particular, the focus needs to be on those who are using isolation to establish the secrecy and control (even through sole care-giving or sole control over care-giving) necessary for other forms of abuse, such as misappropriation of legal proxies and assets.

 THE ULTIMATE SCAM

Despite all my hard work developing the Kasem-Baksys Law and testifying for it in legislative committees and the media, the fact is, I could not have used my own law to appeal for visitation with my dad, even if he had lived until the law came into effect in January 2019.

My 91-year-old father and I were scammed out of our parent-child (and principal-agency) relationship after he suffered an overnight health collapse, that with follow-on crises, resulted in an immediate, permanent loss of his treasured, lifelong independence, 90 days in hospitals and rehab in just five months, and a sudden need for 24-7 assistance whenever he was at home. This scam by another family member could only have succeeded in the midst of that traumatic loss of the daily life Dad and I had known for years (when two visits a day from me had been enough to keep my father independent in his home all the way from age 84 to 91), and during which Dad even came to the verge of death several times. It could only have been accomplished by someone inside the very heart of our family exploiting the depth of our (Dad’s and my) ongoing trauma and loss.

Dad and I both were threatened, pressured, lied to, and deceived at a crisis point–our weakest point–by a prodigal member of our own family who had suddenly returned after seven years of total absence, apparently only to help. But “apparently” and “only” turned out to be the heart of the scam, which gained its terrible force from the prospect of Dad and I receiving the family help we so desperately needed, expected, and deserved in such a desperate family crisis.

There is no bigger betrayal of trust than this. No bigger scam. Imagine your outrage if strangers, not family or household members, were scamming our elders not just out of their savings, but also their legal proxies and long-term family visitation rights. Why should our laws be more interventionist with regard to elders making suspicious transfers of funds to strangers than to family members? Why should they look more condemningly at the stranger who springs his trap on an unsuspecting senior (and makes a quick and anonymous getaway) than on the family member who manipulates and usurps the central role of an elder, and then, with that power, proceeds to scam, disempower, and disinherit his or her entire family over many months or years, from its very midst?

Please finally take the victims of in-family elder abuse to heart and undertake my (below) proposed reforms to the Kasem-Baksys Visitation Law, the POA Statute, and the Adult Protective Services Act—plus any others your expertise may guide you towards in this urgent purpose.

PROPOSALS FOR REFORMING ILLINOIS LAWS

Until recently, there wasn’t a single dedicated cause of action in Illinois to appeal unreasonably denied elder-family visitation. In 2018, my state legislator, Rep. Sara Wojcicki Jimenez, and I challenged existing law to create our state’s first dedicated but limited cause of action to restore family visitation outside of the costly, expensive—and often inappropriate—legal guardianship process. This was especially important for the establishment of an initial fact set for the crime of elder isolation, which is defined as  abusive interference in the relationship between a frail elder and close family member with justification or cause.

All over Illinois every day, nurses, homecare aides, doctors, and home health agencies witness the scamming and isolation of elders from their longstanding closest family members for the misappropriation of legal powers and assets. Most of you probably know someone this has happened to. And yet our laws continue to protect abusers who traumatize and exploit their own families by raising costly and complex barriers to challenging and stopping the abuse. Too many of our laws fail to recognize that many POAs are misappropriated, illegitimate and abusive, resting not on an elder’s free will, but rather, on an abuser’s active impairment, manipulation, shaming and intimidation of the elder’s will during, or as a result of, a health trauma and traumatic loss of independence. (Please note that when I say “impaired,” I mean to causally relate this impairment of will to health /homecare crises that create profound  psychological vulnerabilities that can be exploited, as distinguished from the neuro-medical legal incapacity or mental incompetence currently required under guardianship or POA statute.)

To begin to solve this problem, Illinois needs to:

1. Amend Illinois’ Power of Attorney statute to deter and create penalties for fraudulent acquisition / transfer of legal agency during such irregular circumstances as the principal’s health collapse, hospital or rehab stay, recent loss of independence and/or relocation to assisted living or nursing facility, or profound loss-of-function-based homecare emergency. (Counting the number of functions of daily living that were previously performed independently, but which can no longer be performed independently, would be an excellent yardstick for assessing “health collapse” or crisis.) Any proof of intimidation, deception, and/or isolation of the principal to obtain or transfer agency must weigh heavily against the legitimacy of agency. Streamlined access to the courts or law enforcement for claims by original, legitimate agents seeking to restore original assignment of POA must also be created.
2. Amend Illinois’ Power of Attorney statute to require agents, in the absence of provable and serious cause, to act in keeping with principals’ relationship history when it comes to in-home visitation, regardless of agents’ personal feelings towards the principal’s significant others / family or family visitation. The best interests and family relationships of the principal, not the personal feelings or homeowner prerogatives of the agent, must prevail when it comes to the family rights of the principal and preventing elder isolation of a functionally impaired elder.
3. In lieu of protecting family visitation by reforming POA statute, remove the POA exemption from the Kasem-Baksys Visitation Law (Public Act 100-0850), so that family can use that cause of action to restore elder-family visitation despite misappropriation and abuse of agency under a POA. Providing a streamlined cause of action to petition for elder visitation both within, and apart, from legal agency, is perfectly in keeping with the 2016 Kasem Act amendment to the Probate Act of 1975, which created the right to appeal unreasonable denials of family visitation by court-appointed guardians.
4. Balance all elder free will-based statutory language, everywhere, with language equally providing for the possibility of a vulnerable elder’s manipulated and impaired will. In all elder laws or anti-elder abuse laws enshrining elders’ free will, permission, or preferences, create processes for identifying undue influence and duress–such as the exploitation of a health collapse to intimidate and isolate–in order to identify the elder’s true wishes.
5. Reform the Adult Protective Services Act to allow abuse to be fully investigated and combated without the permission of the alleged victim, particularly when it is credibly alleged that the elder has been intimidated, manipulated, and is living isolated with the alleged abuser(s). Define an elder isolation “fact set” that causally recognizes active intimidation, manipulation, and impairment of a vulnerable elder’s will, with elder vulnerability quantified by recent health crisis and treatment/hospitalization, change of domicile, and loss of function.