During the first meeting of this Task Force, a law enforcement official asked the head of Illinois Adult Protect Services if APS could send more of the elder abuse reports it receives for criminal investigation and prosecution. The head of APS replied that such sharing is often not possible due to APS victim confidentiality rules. Perhaps that victim confidentiality obstacle should not surprise us, given Illinois’ legal requirement for victim permission/cooperation at every stage of the APS process–as if aged and functionally disabled victims are not living every moment of every day in the clutches of their abusers, as in reality, elder abuse victims so often are.
It should shock and outrage us that rules and procedures ostensibly aimed at protecting such victim intangibles as confidentiality and free choice often function in the real world as key protections for elder abusers, preventing reports of abuse from even being confirmed, much less acted upon. Maybe it should also shock and outrage us that our state has done little to unshackle its elder protection laws and systems from this tragic irony.
I expect that many on this Task Force already know that many Illinois laws and practices effectively allow abusers to hide behind their weak and manipulated victims. In a very real sense, the ultimate “success” of abuse can be measured not only by its short-term benefits to the abuser, but also by the enduring impunity it confers from discovery, remediation, and punishment. Chief among the after-effects that may hamstring elderly victims from exposing abuse and cooperating against the abuser are denial, fear, humiliation, and self-blame–not to mention the continuing functional dependence and family loyalty that tightly bind an elder to the abuser who is often a family member. (75 percent of all APS elder abuse reports implicate a family member.)
After a vulnerable elder has fallen victim to an abuser’s intimidation, deception, and/or brainwashing, even a dawning awareness that the elder has been betrayed through their own misplaced trust (and no trust can seem more natural and necessary than the kind placed in a family member)–even the sense of betrayal works against the elder to the abuser’s advantage. Shame, self-blame, denial, and often, continuing deception / intimidation impair the free will of the victim in ways that prevent the victim from acting in his own best interest. No scam by an anonymous stranger or even a financial professional can match the paralyzing emotional impact when a trusted household or family member engages in this most under-recognized and appreciated form of domestic abuse to seize control over an elder and his or her assets at a moment of medical crisis or extreme age-related fragility.
When the abuse is ongoing, as when a family or household caregiver keeps a functionally disabled and failing elder isolated and under the abuser’s sole control for months or years, what chance is there that such a victim will be willing or able to identify, as an abuser, the sole person on whom they have come to depend for every function of daily living?
How often have attorneys and judges witnessed elders exhibiting this kind of psychological manipulation / impairment, to the extent that the elderly victim vehemently defends his own abuser?
How much longer are we going to leave in place laws and procedures ostensibly aimed at protecting our elders, but which effectively grant impunity from the law to those who abusively exploit elderly adults by exploiting the natural and universal vulnerabilities of the aging process? How long will we allow our stumbling-block reliance on the cooperation of the manipulated and isolated elder with severe functional impairments to preclude the effective application of the state’s most important civil and criminal anti-elder abuse powers?
How long are we going to continue permitting the victim’s weakness to be the system’s weakness--to permit our civil and criminal authorities essentially to be held hostage through the hostage-taking of vulnerable and abused elders?
A paradigm shift away from hinging anti-abuse laws and enforcement on an elder’s putative free will in instances where no such free and unimpaired will exists will undoubtedly touch on many more laws and procedures than I, as a family survivor of elder abuse–not a legal expert–can know, at this point.
But I would like to believe that even modest, surgical changes / additions to our laws could have an outsized positive impacts in allowing us to prevent more abuse from occurring or becoming entrenched via the long-term, abusive manipulation of vulnerable elders’ free which is so readily and ruthlessly accomplished in isolation.
As I have written previously, preventing the isolation of the elder by the abuser is a central component of preventing elder abuse from succeeding to the point of physically and emotionally impairing the elder’s remaining possible independence.
Along with helping family protectors stay in their elder’s life by giving them better tools to fight isolation, we must also loosen APS’ grip on abuse reports and abusers’ identities so that more crimes may be prosecuted when appropriate. APS investigations and interventions must be unshackled and given more independence from the elderly victim’s understandable impairments in abusive circumstances–which is to say, under the psychological and/or physical control of the abuser.
No elder protection program, agency, or law purporting to protect our elders must any longer be permitted to justify inaction against abuse by citing a disabled, isolated and manipulated elder’s lack of permission or confirmation of abuse—especially when such abuse can be confirmed through other witnesses and facts not dependent on the elder’s cooperation. Abuse reports broadly solicited by APS are not required to be made by the elder in question; so, why are these elders the only valid source when it comes to confirming abuse, including, most importantly, confinement/isolation? Certainly more evidence can be brought to bear in APS investigations than our elders’ ability to speak up during a caseworker visit and any visual observations by the caseworker.
Furthermore, very anti-elder abuse law or program that depends on an elder’s putative free and independent will must provide for the assessment of whether the elder does, indeed, have free and unimpaired will when it comes to the alleged abuser and abuse. And alternative evidence of elder abuse and elder manipulation that is not dependent on the isolated and manipulated elder’s own cooperation or testimony must not just be permitted, but welcomed, especially when it contradicts the victim, himself. Only by permitting alterative sources of evidence/testimony can the burden of speaking against the abuser/isolator be lifted from the shoulders of the frail and dependent victim and the stranglehold of the abuser be broken.
Dan Belko, Deputy Cook County Public Guardian, mentioned that the two initial legal reforms below “might find broad support” when I spoke to him by phone recently from the office of my state Representative, Mike Murphy of Springfield.
- Adding a definition of elder isolation to the Adult Protective Services Act that defines isolation by a family or household member as inherently abuse and neglect, with corresponding procedures for investigating, confirming, reversing, and punishing such isolation.
- A narrowly-tailored amendment to the Illinois Power of Attorney Act that would allow close family to petition a civil court for visitation with their elder when he or she is being isolated by the elder’s own legal agent–without triggering the larger process of removing and re-assigning legal agency. An alternative to amending the PoA Act is passing HB 4698 (101st GA), which would allow PoAs to be sued for visitation under the Kasem-Baksys Visitation Law, The Frail Elderly Individual Family Visitation Protection Act, from which they are currently exempted.
These surgical anti-isolation reforms are just the beginning–far from the broader reforms I have suggested. But they can be made immediately, in the 2020 legislative session, and should not necessarily await other reforms I have argued the Task Force should recommend in its findings more than a year from now. I ask all on the Task Force for their immediate support for these two amendments to Illinois law.