The other day I came across an article entitled, “Financial Exploitation: When Taking Money Amounts to Elder Abuse.” In the article, an elderly woman named Mary described how her daughter had cruelly stolen her life savings while she was in the hospital. Mary was deeply hurt by this betrayal, and the trust she had had in her daughter was ruined. At the same time, however, she was also worried about her daughter. She allowed her daughter to remain in her house, explaining, “I do have unconditional love for her. She has nowhere to go. She has no income- — she would be homeless.”
While Mary’s reaction may seem surprising, it is actually not unusual in cases of elder financial abuse. This is largely because this type of abuse is so often perpetrated by family members. In fact, a 2014 study found that “family members [are] the most common perpetrators of financial exploitation of older adults (FEOA) (57.9%), followed by friends and neighbors (16.9%).” When an elder is financially exploited by their son or daughter, their response is unlikely to fit the stereotypical abuse narrative. It is more complex.
We rarely get calls from elders who name their family member as a “perpetrator” or “abuser.” Instead, we get calls from elders who are concerned about both their own financial situation and also their family member’s welfare. In one case that I recently handled, an elder’s housing was threatened because of her adult son’s use of drugs in her apartment. While this is not a traditional financial abuse case, the son’s actions put his mother’s stable, subsidized housing at risk and if she had ended up evicted, she could have faced extreme financial hardship. When I met with her, I found that she recognized that her son’s behavior was problematic. But when she talked about spending time with him and her grandson, her eyes lit up and her tone was warm. She knew that her son’s behavior had been harmful to her and she was genuinely worried about her own situation, but she was also worried about his.
Elders exploited by their family members also tend to seek recourse beyond punishment of the perpetrator. For example, in another case that I recently handled, a son had stolen nearly $100,000 from his mother after she gave him access to her bank account so that he could help her pay her bills. In speaking with the elder, I found that she certainly wanted her money back, but she was most hurt by her son’s duplicity. He had shown her care and attention prior to stealing her money, and the realization that he had merely been priming her stung more than the lost funds. It felt like what she wanted most of all was a call from her son, apologizing.
Why is it that so many elders respond to familial financial abuse in these ways? One reason is obvious. It is very difficult to cut ties with, much less bring charges against, one’s own son or daughter, niece or nephew. If an elder has raised their family member from childhood, they may feel some responsibility for that family member’s actions. Moreover, they may love them. It is a real challenge to reconcile that a person who one loves has been deceitful.
Additionally, in some cases, the financial exploiter is the elder’s only caretaker or companion. Many elders (particularly recent immigrants) are socially and physically isolated, and they may feel they have no choice but to put up with some level of financial exploitation in order to have someone to help them prepare food, manage their medications, or just talk with them. Isolated elders are more likely to be preyed upon in the first place, and after abuse has occurred, they may be more inclined to maintain a relationship with the perpetrator.
Further complicating matters is the fact that the perpetrators of elder financial abuse often have root problems stemming from drug addiction and/or mental illness. If an adult child is stealing from his father in order to feed a heroin addiction, the father’s first concern may be helping his son to overcome the addiction, and he may put his own needs second. He might write off the abuse as a symptom of the larger addiction issue.
Given the complexities of elder financial abuse, it is important to understand why elders might not accept assistance or might want their situation handled in a unique manner. These elders should still be offered services to help improve matters, even if they aren’t the services typically provided in abuse cases. Listening to elders, even when their requests differ from what we expect them to be, is the essence of true elder justice.
 Michael O. Schroeder, “Financial Exploitation: When Taking Money Amounts to Elder Abuse,” http://newamericamedia.org/2017/03/financial-exploitation-when-taking-money-amounts-to-elder-abuse.php.
 Peterson, J., Burnes, D., Caccamise, P., Mason, A., Henderson, C., Wells, M., & Lachs, M. (2014). Financial exploitation of older adults: a population-based prevalence study. Journal of General Internal Medicine, 29(12), 1615–23. doi: 10.1007/s11606-014-2946-2.
Do advance directives prevent elder abuse or do they create the opportunity for it? Frankly, they can have either effect. They can help ensure that your wishes are respected and that a trustworthy person has control over your health and finances, or they can open the door for decisions that conflict with your instructions, and may even constitute abuse. The key is naming the right person in your advance directives, and having the right type of conversation about your desires.
Let’s go back to the beginning before we dig deeper into this topic. What is an advance directive in the first place? An advance directive is a legal document signed by a competent individual that provides guidance about their wishes. There are a number of different legal documents that may be considered advance directives, but this article focuses on two that are of special importance in Massachusetts: The Health Care Proxy and the Power of Attorney.
The Health Care Proxy allows you to appoint someone to make medical decisions for you if you become incapacitated. The Power of Attorney allows you to appoint someone to conduct certain transactions on your behalf, including financial transactions. This appointment can come into effect immediately or only in the case that you become incapacitated, depending on your preference.
Both the Health Care Proxy and Power of Attorney may be useful in helping you to maintain autonomy if you lose the ability to make decisions for yourself. If you become incapacitated and have not named a Health Care Proxy or Power of Attorney, the court may appoint someone to make your decisions for you. While this person should theoretically protect your wishes, they may not know what those are, or they may not respect them. Furthermore, there is the possibility of outright abuse. The person who is appointed as your legal fiduciary may try to benefit themselves, at your expense. Naming someone in your advance directives who you really trust and who really understands what you want can help ensure that your wishes are protected and that abuse does not occur.
The trick is choosing the right person for the job. The person you name as your Health Care Proxy and/or Power of Attorney (called the “agent”) should be both extremely trustworthy and extremely responsible. Naming someone who is not trustworthy or responsible may result in the mismanagement of your healthcare or financial decisions. It could even result in that person purposefully exploiting you; transferring your money or property against your wishes, or making healthcare decisions that directly conflict with your religious beliefs. It is essential to choose someone whom you have no doubts about.
If you have two people in mind for one advance directive, it is wise to name one of those people as the principle agent and the other as an alternative agent. Naming two people as joint agents is possible, but it can lead to unnecessary conflict. Also, bear in mind that it may be appropriate to name different people for your Health Care Proxy and Power of Attorney.
After you have chosen your agent, it is important to have a detailed discussion with that person about your wishes. If you simply authorize someone to act as your agent without offering them guidance, even with the best of intentions, that person may make decisions contrary to the ones you would have made for yourself. A thorough conversation can ensure that the use of advance directives benefits you and does not harm you. It is also a good idea to put your wishes in writing and attach that document to the advance directive. While not legally binding, this written guidance can serve as an important reminder about how to proceed.
Perhaps you are thinking that this all makes sense in the abstract, but you are confused about what the creation of an advance directive actually looks like. Well, I can tell you about that because just a couple months ago, I completed a Health Care Proxy form and appointed my mother as the principle agent and father as the alternative agent. Over Thanksgiving weekend, I sat down with the two of them and we had a lengthy conversation about my healthcare wishes. My mother is a physician so she understands a lot about incapacitation and end-of-life needs, but she knew very little about what I wanted for myself. I explained my views on pain-management medication and invasive surgical procedures, among a variety of other topics. The following websites are helpful in guiding this type of conversation: theconversationproject.org and agingwithdignity.org. Interestingly (though unsurprisingly) my healthcare wishes are not identical to those of my parents, so our conversation really was beneficial. As we talked, I documented my wishes on a document that I then attached to the Health Care Proxy form. Afterwards, I made copies for both my parents and for my physician. I also kept a copy to keep in an envelope on my fridge, so that it could be easily found in an emergency situation.
While it was a bit sad to discuss my potential incapacitation, I feel confident that my wishes were understood and will be followed. It is comforting to know that, even if I lose my decision-making capacity, I will retain some control over how my healthcare is managed. Additionally, because I have such trust in my parents, I have no concerns about abuse. I recognize that the abuse of the incapacitated does occur regularly, and I am glad to have protected myself against it.
To conclude, if you name a truly trustworthy and responsible person as your agent, and take care to ensure that they understand your wishes, advance directives can be useful in preventing elder abuse and helping you to maintain autonomy even after you lose capacity. However, there is the possibility of misuse, so be mindful in your creation of advance directives and be wary of the potential for abuse.
Massachusetts Health Care Proxy Form: http://www.massmed.org/healthcareproxy/#.WIuRQVUrLIW
Massachusetts Power of Attorney Form: http://www.mass.gov/dor/docs/dor/forms/miscform/pdfs/m-2848.pdf
Let me paint you a picture. Jane is a transgender woman. For years she hid her true identity from her friends and family because she felt forced to present herself as male. Hiding herself broke her spirit and caused her to suffer from severe depression. She always felt uncomfortable in her skin, in her clothes, interacting with others. But finally, when she was 67-years-old, she came out as the woman that she had always known herself to be. In coming out, she felt freedom and, more importantly, comfort. She could act and dress in ways that felt true to her core identity.
Fast forward 8 years to when Jane is 75-years-old. At this point her health is beginning to decline and she recognizes that she’ll eventually have to move to a nursing home to receive professional care. But Jane wonders: Will the nursing home staff respect her identity? Will they call her by her chosen name and her proper pronouns? What if the other residents harass her- will the staff intervene? After finally feeling the freedom of living as her true self, Jane can’t imagine being forced back into the closet. But she also can’t imagine spending her final years battling constant abuse.
This is a position that all too many LGBTQ elders find themselves in. For many LGBTQ elders, coming out and living openly was a great challenge, and the last thing that they want to do is go back into hiding. But living as an out member of the LGBTQ community within a nursing home or senior living facility can render elders vulnerable to abuse from other residents and staff members.
Lambda Legal, a legal organization committed to achieving LGBTQ equality, recently filed a federal lawsuit on behalf of a lesbian elder, Marsha Wetzel, who faced discrimination, harassment, and violence due to her sexual orientation while living in a senior housing facility. You can hear Marsha’s story in her own words here: https://www.youtube.com/watch?v=d8qd7-pq0E8. Unfortunately, her story is reflective of the stories of many other elders.
When elders face harassment and violence due to their sexual orientation or gender identity while in a nursing home or senior living facility, that is not just poor treatment. It is elder abuse. When staff members fail to stop harassing behavior from occurring, that is also elder abuse. It is important that we don’t view these incidents as isolated because they are part of a larger pattern of abuse faced by LGBTQ elders.
In a small study of LGB elders, 65% reported experiencing some form of abuse related to their sexual orientation. Another study showed that 80% of transgender elders have experienced verbal and/or emotional abuse, and 42% have experienced physical violence. LGBTQ elders tend to be more vulnerable to abuse because they are afraid that the reporting process will lead to further discrimination or “outing” if they are closeted. Many LGBTQ elders have been discriminated against or harassed by authorities in the past, and therefore have distrust of the system. Additionally, some elders suffer from internalized homophobia and may feel the abuse they experience is deserved.
It is essential that nursing homes and senior living facilities work to create safer environments for LGBTQ elders, where abusive behavior is strictly prohibited and staff members immediately and appropriately intervene should it occur. Many LGBTQ elders have lived hugely difficult lives. They deserve to age in peace.
 Research Brief: Mistreatment of Lesbian, Gay, Bisexual, and Transgender (LGBT) Elders, National Center on Elder Abuse, Retrieved from https://ncea.acl.gov/resources/docs/Mistreatment-LGBT-NCEA-2013.pdf.