At a lunchtime general session of the National Aging & Law Institute in Washington, D.C., on November 9, Professor Roberta K. Flowers of the Stetson University College of Law discussed the responsibilities of attorneys to report elder abuse. The Institute was co-sponsored by the National Academy of Elder Law Attorneys (NAELA) and ran from November 8 to 10, 2012.
Flowers first conducted a poll of her audience using electronic clickers that had been distributed to the more than 200 in attendance. To the question “How often have I encountered elder abuse in my practice?” 43 percent said “at least every month.” To a follow-up question on the type of abuse most commonly encountered, 75 percent replied “financial exploitation.”
Flowers said that attorneys may or may not be subject to mandatory reporting requirements, depending on their state, but they need to know what their state’s requirements are. If the attorney suspects a client is a victim of elder abuse, she said attorneys need to ask themselves three questions.
- Am I a mandatory reporter?
- Is there an exception to Rule 1.6 regarding confidentiality?
- Is there an exception for client/attorney privilege?
Flowers said client/attorney privilege is narrower than the confidentiality rule.
If you are not a mandatory reporter, one alternative is to refer the client to someone in your state who is, such as a mental health or medical professional.
There are several options for reporting, including local law enforcement, adult protective services, and the state bar. However, an audience member contended that adult protective services is virtually useless in most cases of financial abuse. He said they usually focus only on physical abuse, have no expertise in investigating financial issues, and won’t investigate unless the victim essentially has no money.
Flowers noted that the national firm of Holland & Knight has set up a pro bono effort to take elder abuse cases that otherwise couldn’t be pursued. It is called “The Mickey Rooney Elder Abuse Pro Bono Project,” after the movie star who has been a high-profile victim of alleged financial exploitation.
Flowers ended by suggesting that the legal profession and the law needs to begin taking elder abuse as seriously as it currently takes domestic violence.
At an earlier general session that also focused on elder abuse, Hubert H. (“Skip”) Humphrey III of the Consumer Financial Protection Bureau’s Office of Older Americans noted that the newly formed Bureau has on its Web site a set of questions geared to the financial concerns of older Americans. His office is also at work on a group of plain-language guides aimed at giving lay fiduciaries a basic understanding of their responsibilities.
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