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Human Rights Defenders

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

 Universal Declaration of Human Rights

Article 1

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“All that is necessary for the triumph of evil is that good men do nothing”

Edmund Burke

Elder Abuse

There is a terrible tragedy of elder abuse that is occurring in silence the U.S.A. every day and the victims ordinary senior citizens are often physically and emotionally abused or financially exploited. According to U.S. Census Bureau statistics, as of July 1, 2004, 12 percent of all Americans were 65 and over. By 2050, people 65 and over will comprise an impressive 21 percent of the U.S. population.

The terrible secret is that according to Department of Health and Human Services estimates between 500,000 and 5 million seniors in our country are abused, neglected, or exploited.  It is a sad fact that most victims of elder abuse remain silent about their victimization or do not know how to report.

Elderly - Vulnerabilities to Mistreatment

• Difficulty defending oneself, physically and emotionally

• May be more dependent on others for assistance than in the past

• Fear of losing independence if a report is made, so more susceptible to threats

• Normal changes of aging

• Medication effects

• Multiple co-morbidities

• Cognitive impairment

What is Undue Influence?

• Use of power and control by perpetrator

• To exploit trust, dependency and fear of elder

• In order to obtain elder’s “consent” there is a special relationship between the parties based on confidence and trust; and intentional and improper influence or persuasion of the weaker party by the stronger

• Method to obtain victim’s “consent” in order to commit a crime

• Pattern of manipulative behaviors

– Process not an event

• Involving victims who often have some impairment or disability

A Vulnerable Adult (VA) is someone who can’t take care of him or herself because of a mental or physical condition and must rely on others for assistance.

Guardianship Abuse

In the U.S. A. there has been a growing problem of abuse of the elderly and disabled due to a covert system of  guardianship or conservatorship.  This covert system of  power and control  is enforced through the judicial system.  It is manipulated for use by fraudsters, abusers and persons wielding undue influence for financial advantage.  The wards have lost the right to complain, because they have been stripped legally of all their rights, left defenseless and subject to exploitation by the very people chosen to protect them; they are now invisible and voiceless.  Strangers are appointed to take over the decision making process and often times given total and absolute control over the life, liberty and property of their wards.  It is used to ensnare the most vulnerable people in a larger and larger trawling net, now including those merely physically "incapacitated"!  Persons who are disabled or elderly are not automatically "incompetent" to "incapacitated," and thus may not even need guardianship.  These predators, which can include unethical lawyers and other "fiduciaries" appointed by the courts, are meant to protect their wards, but many of whom become nothing more than abusers.  Wards, instead of being protected by the system, are victimized by it. Strangers are given total and absolute control of life, liberty, and property of their wards. The American Taxpayer, ends up paying the tab for long term continued care for life of the ward under Medicaid and Medicare,  often with medical decision made to maximize profits for the case managers, medical professionals, agencies and medical hospitals who provide the care.  Crisis situations are created to maximize Medicaid reimbursement and to allow additional extended hospitalization at high rates.  The ward is not permitted to make decisions for less restrictive care and may be drugged with psychotropic medications to force compliance. The paid fiduciaries often secret their wards away in nursing homes where they are kept chemically restrained with unnecessary and dangerous drugs; family members are denied any say in their care, and sometimes denied visitation, except  under guard at their own expense! The ward becomes a burden on the American Taxpayer for lifelong very expensive care and then when no longer an easy patient to manage as a cash cow for the care provider – the ward is dumped into the street homeless to fend for themselves.  At this point, often concerned family members or friends are forced to provide care without the benefit of the welfare monies which had been previously depleted by the former guardians. 

Wards of the state lose all rights involving self-determination, including:

•  the right to contract, including the right to choose a lawyer;
•  the right to control their assets and make financial decisions;
•  the right to remain in their own home and protect it from sale;
•  the right to protect and enjoy their personal property;
•  the right to choose where to live;
•  the right to accept or refuse medical treatment, including psychotropic drugs;
•  the right to decide their social environments and contacts;
•  the right to assure prompt payment of taxes and liabilities;
•  the right to vote;
•  the right to drive;
•  the right to marry; and
•  the right to complain.


The system works with the cooperation of Uncaring/corrupt judges misuse the law and engage in blatant violations of due process, civil/human rights violations.   Often there is a paper trail of pretend procedural due process in which the victims aren’t always given notice of hearings at which their competence will be adjudicated, aren’t always allowed to attend, and often don’t have lawyers.  If the court does appoint lawyers, they are often closely allied with care providers and other professionals that they do not even superficially represent the wards best interest.  There is an entire industry of professionals who specialize in this very lucrative practice which strips the wards’ of their property, their liberty and often their very lives. The attorneys often they are too closely affiliated with other professionals who make their living in this special area; and do not properly represent the victims’ interests.  Corrupt judges do not apply the required evidentiary standards in making adjudications of incompetency, and frequently fail to obey the protective statutes, or include specific findings of fact.

Fiduciaries take over the entire ward’s property and often the life savings are plundered and family homes sold to insiders at below market prices.  Wards lose everything including personal items, family heirlooms, jewelry, family photographs, financial records, furniture, which all disappear, either stolen outright or sold at auction.  The fiduciaries assess the ward’s estate assets with exorbitant "fees" and "commissions" until there is nothing left!  In the end the guardians or fiduciaries decide to turn off life support or turn the ward into the street homeless.

Recent Research Reveals

In almost 90% of elder abuse and neglect incidents, the perpetrator is a family member!

 

About half of people with dementia are being mistreated, usually by a family member.

The National Elder Abuse Incidence Study, published 1998: 236,000 reports of seniors abused at home every year.  50,000 reports of abuse in nursing homes every year.

FOR EVERY REPORT OF ABUSE…

…5 GO UNREPORTED

What kinds of Abuse?

• Financial Abuse

• Physical Abuse

• Neglect

• Abandonment

• Sexual abuse

• (Self Neglect)

The Elder Justice Act

The Senate just passed the Elder Justice Act. It would boost federal aid for identifying and investigating elder abuse at the state and local levels, require long-term care providers to report possible crimes to federal authorities and create new oversight within the Department of Health and Human Services for coordinating state and federal anti-abuse efforts. This bill has gained broad support in and out of Congress, with more than 500 advocacy groups supporting the legislation so it is hoped that at least some of the measures appear to have good prospects for being enacted into law.


According to a study for the National Institute of Justice, there are approximately 11% of people ages 60 and older suffer from some kind of abuse every year.  In addition other studies show that elderly victims of abuse, neglect and exploitation have twice the risk of dying within a year.
  The Elder Justice Act of 2005 which was now finally passed into law will hopefully:
  ·  Fund research on comprehensive approaches to abuse detection and prevention;
  ·  Promote coordination of federal, state and local efforts through the Department of Health and Human Services and the Department of Justice;
  ·  Support efforts to enhance capacity to discover and hold abusers and other violators accountable;
  ·  Provide for long term care staff training and preventive security measures to protect individuals receiving long-term  care, including the establishment of a national nurse aide registry and national criminal background checks; and
  ·  Authorize funds for training and to establish a clearinghouse to empower professionals, researchers and consumers in finding solutions to elder abuse.

Statistics Show - Elder Mistreatment leads to Mortality

The Journal of the AMA The Mortality of Elder Mistreatment 1998

This was the conclusion of a 13 year study that followed 2,812 community dwelling adults older than 65 years…

“…adults who have been mistreated had a mortality rate three times higher compared to others…”

 

The Journal of the NCEA,   The National Center for Elder Abuse

cites: “… elders who have been abused have a

300 % higher risk of death when compared to those who have not been mistreated.”

Elder Justice Act Passed the Senate but still is not law

The Elder Justice Act was introduced in the Senate on April 2nd, 2009 and the House on April 21st, 2009. S. 795, the Elder Justice Act was authored in the Senate by Sen. Orrin Hatch (R-UT) and co-authored by Senator Blanche Lincoln (D-AR) with original co-sponsors Senator Herb Kohl (D-WI) and Senator Olympia Snowe (R-ME). On the House side the EJA companion bill, H.R. 2006, was authored by Rep. Peter King (R-NY) and co-sponsored by Rep. Tammy Baldwin (D-WI), Rep. Jan Schakowsky (D-IL) and Rep. Joe Sestak (D-PA). A section by section summary of the Elder Justice Act is available in the Legislation section.

 

But this bill never became law.

http://www.govtrack.us/congress/bill.xpd?bill=s111-795

 

For further information contact:

National Center on Elder Abuse
National Association of State Units on Aging
1201 15th Street, NW, Suite 350
Washington, DC 20005
202.898.2586 / Fax 202.898.2538

 

These are other related Congressional bills:

“Somewhere ages and ages hence: Two roads diverged in a wood, and I - I took the one less traveled by, And that has made all the difference”

 Robert Frost quotes (American poet, 1874-1963)

What is elder Abuse?

Abuse, Neglect and/or Exploitation

_ Greed

_ Power and Control Dynamics

Relationships

_ Long-term relationship

_ New relationship

_ Late onset

Sexual Abuse in Later Life

_ Victims: any age and range of ability

_ Offenders: spouse/partner, adult sons, grandchildren, caregivers, family

members, and others.

Neglect

_ Refusal or failure of a caregiver to fulfill duties to care for an older adult

_ Failure of a person who has fiduciary responsibilities to provide care for an older adult

_ Failure of a facility or in-home service provider to provide necessary care

Neglect: Refusal or Failure to Provide Necessities Such As:

_ Food

_ Water

_ Clothing

_ Shelter

_ Personal hygiene

_ Medication

_ Medical care

_ Comfort

_ Personal safety

_ Assistive living devices

Neglect Can Be Difficult to Identify

_ Neglect indicators may be the result of a health condition

_ Older adult’s choices about health care and available services

_ Neglectors may try to manipulate professionals

 

Self Neglect

An adult's inability to perform essential self care tasks necessary to maintain physical health, mental health, emotional well-being and general safety; and/or manage financial affairs.

Financial Exploitation

_ The illegal or improper use of an older adult's funds, property, or assets

How Does Financial Exploitation Occur?

_ Theft, fraud, coercion

_ Undue influence

_ Abuse of legal authority

Signs of Stalking in Later Life

_ Follows victim

_ Sends unwanted gifts, letters, cards, or e-mails

_ Drives by or hangs out home or work

_ Damages victim’s home, car, or other property

Stalking and Older Victims

_ May be less likely to be believed

_ May be less aware of technology used to stalk

_ May not be aware that stalking is a crime

Abuser Justifications

_ Justify behavior

_ Minimize the abuse

_ Deny the abuse occurred

Reframing Abuse and Caregiver Stress

_ Everyone experiences stress—most do not abuse an older adult

_ Victim is the target—not others

_ Pattern of behavior—not an isolated incident

_ Similar behavior would not be tolerated with children or pets

Sexual Abuse in Later Life

_ Victims: any age and range of ability

_ Offenders: spouse/partner, adult sons, grandchildren, caregivers, family members, and others.

 

As with sexual assault in the general population, the majority of identified victims are women and most perpetrators are males.

Victims as old as 100 have been identified and their sexual perpetrators range in age from juveniles to senior citizens.

Studies have found that the majority of identified victims experience cognitive, functional, and physical limitations.

These limitations increase risk for sexual assault and limit the ability for older people to protect themselves from sexual violence and seek intervention assistance.

Perpetrators may target them due to their physical and cognitive vulnerabilities. Additionally, they may depend on perpetrators for daily needs and/or to cope with debilitating conditions.

Older individuals can be left unable to protect themselves from assault. Their ability to access and utilize intervention services can also be adversely affected.  

Physical age-related changes do not render older adults less intelligent or incapable of informed decision-making.

Accumulated life experiences often result in older adults possessing significant wisdom, insight, and a broad range of effective problem-solving abilities.

Advocates can play an integral role in building upon these strengths and inner resources.

Disabled and Elderly more vulnerable to Sexual Assault

• Capacity to self-protect, help-seek

• Credibility re: disclosures

• Potential short, long-term impact

• Intervention

Types of Assault

• Incest

• Intimate partner violence

• Victimization by care provider

• Victimization by peers

• Acquaintance assault

• Stranger assault

Locations of Assault

• Private homes

• Other community locations

• Care facilities

– Group homes

– State schools

– Psychiatric facilities

Relationship to Other Violence

• Sexual Assault often embedded in pattern of multifaceted abuse, especially when perpetrator has ongoing victim access

• Cumulative effects of trauma

What Can You Do When Someone Discloses Elder Abuse?

How to support… When someone discloses abuse to you…

Give the victim an opportunity to tell you what happened

Ask non-threatening, reassuring and supporting questions

Develop a trusting relationship

What a Victim should hear from you…

“Abuse can happen at any age,  to anyone”

“This is not your fault”

“You did not deserve this”

“All forms of abuse are  unacceptable”

What a Victim should hear from you…

“You have the right to live without fear”

“You have the right to have control over your life”

“You cannot control the abusive person’s behavior”

Stop Guardian Abuse - Here are some personal stories

http://stopguardianabuse.org/victimsandtheirstories.htm

National Association to
Stop Guardian Abuse
PO Box 886
Mt. Prospect, IL  60056

PATIENT BILL OF RIGHTS

PATIENT BILL OF RIGHTS

       1. Information Disclosure. Consumers have the right to receive accurate, easily understood information and some require assistance in making informed health care decisions about their health plans, professionals, and facilities.

       2. Choice of Providers and Plans. Consumers have the right to a choice of health care providers that is sufficient to ensure access to appropriate high-quality health care.

       3. Access to Emergency Services. Consumers have the right to access emergency health care services when and where the need arises. Health plans should provide payment when a consumer presents to an emergency department with acute symptoms of sufficient severity -- including severe pain -- such that a "prudent layperson" could reasonably expect the absence of medical attention to result in placing that consumer's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

       4. Participation in Treatment Decisions. Consumers have the right and responsibility to fully participate in all decisions related to their health care. Consumers who are unable to fully participate in treatment decisions have the right to be represented by parents, guardians, family members, or other conservators.

       5. Respect and Nondiscrimination. Consumers have the right to considerate, respectful care from all members of the health care system at all times and under all circumstances. An environment of mutual respect is essential to maintain a quality health care system.

       6. Confidentiality of Health Information. Consumers have the right to communicate with health care providers in confidence and to have the confidentiality of their individually identifiable health care information protected. Consumers also have the right to review and copy their own medical records and request amendments to their records.

       7. Complaints and Appeals. All consumers have the right to a fair and efficient process for resolving differences with their health plans, health care providers, and the institutions that serve them, including a rigorous system of internal review and an independent system of external review.

       8. Consumer Responsibilities. In a health care system that protects consumers' rights, it is reasonable to expect and encourage consumers to assume reasonable responsibilities. Greater individual involvement by consumers in their care increases the likelihood of achieving the best outcomes and helps support a quality improvement, cost-conscious environment.

News Stories on Elder Abuse



American Seniors Need More Safe Havens From Abuse, The Huffington Post

ABC News July 26, 2011

The Washington PostAugust 17, 2011
                                     August 16, 2011
                                     August 15, 2011
                                     August 15, 2011(2)

State Law Has Huge Gap in Punishing Elder Neglect

When the Elderly Become Targets for Financial Fraud

The International Association of Forensic Nurses has created a Nursing Response to Elder Mistreatment Curriculum.

Working Together for Justice: Washington State's 8th Annual Conference on Abuse of Elders and Adults with Disabilities

 

 

Some Definitions:

Vulnerable Adult is someone who can’t take care of him or herself because of a mental or physical condition and must rely on others for assistance.

Incapacitated person is an adult who a court has found to lack decision-making capacity and cannot care for his or her own person and/or property.  Some states may refer to this individual as a ward or disabled person.

Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another adult (an incapacitated person).

Consumer Fraud Fraud may be defined as the deliberate deception of an individual with the promise of goods, services or other financial benefits that are actually nonexistent, were never intended to be provided, or were grossly misrepresented.

Undue Influence is the use of power and control by perpetrator to exploit trust, dependency and fear of elder in order to obtain elder’s “consent ” in order to have intentional and improper influence or persuasion on the weaker party by the stronger.  This often involves a special relationship of trust and is often a method of committing a crime.  It is a pattern of manipulative behaviors.

Forensic 1) is relating to, used in, or appropriate for courts of law or for public discussion or argumentation or 2) relating to  or used in debate or argument 3) relating to the use of science or technology in the investigation and establishment of facts or evidence in a court of law.

Ageism - any attitude, action,  or institutional structure which subordinates a person or group because of age or any assignment of roles in society purely on the basis of age.

References on Guardianship

American Bar Association Commission on the Mentally Disabled & Commission on Legal Problems of the Elderly. (1989).

Bayles, Fred, & McCartney, Scott. (1987, September). Guardians of the elderly: An ailing system. Associated Press Special Report.

Commission on National Probate Court Standards. (1993, 1999). National Probate Court Standards, Williamsburg, VA: National Center for State Courts.

Leonard, Jack, Fields, Robin, & Larrubia, Evelyn. (2005, November 14). Judges’ inaction, inattention leave many seniors at risk. Los Angeles Times.  http://www.latimes.com

Glaberson, William. (2004, March 3). Report calls for overhaul of system that protects the unfit. New York Times. http://www.nytimes.com

Guardianship: An agenda for reform—Recommendations of the National Guardianship Symposium and policy of the American Bar Association. Washington, DC: American Bar Association.

Hassett, Kelly. (2005, August 18). Money on hold for 100 clients of ex-guardian, Lansing State Journal. http://www.lsj.com

 

Hurme, Sally Balch. (1991). Steps to enhance guardianship monitoring. Washington, DC: American Bar Association Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly.

Miller, Susan, & Hurme, Sally Balch. (1991). Guardianship monitoring: An advocate’s role. Clearinghouse Review, 25, 654.

National Conference of Commissioners on Uniform State Laws. (1997). Uniform Guardianship and Protective Proceedings Act. Chicago, IL: American Bar Association.

Zimney, George, et al. (1991). A national model for judicial review of guardians’ performance: Final report. St. Louis, MO: School of Law & School of Medicine, St. Louis University.

Wingspan—The Second National Guardianship Conference, Recommendations. Stetson Law Review, 31(3).

 2004 National Wingspan Implementation Session: Action Steps on Adult Guardianship Reform. Retrieved Dec. 8, 2005 from http://www.guardianship.org/associations/2543/files/WingspanReport.pdf

 U.S. Senate Special Committee on Aging. (2003). Serial No. 108-3. Washington DC.

U.S. Government Accountability Office. (2004, July). Guardianships: Collaboration needed to protect incapacitated elderly people. GAO-04-655. Washington, DC: GAO.

Wendland-Bowyer, Wendy. (2000, May 24). Who’s watching the guardians? Detroit Free Press; Wendland-Bowyer, Wendy. (2003, Oct. 25). Guardian system overrun by abuse. Detroit Free Press; Kilzer, Lou, & Lindsay, Sue. (2001,April 7). The probate pit: Busted system, broken lives. Rocky Mountain News; Rubin, Paul. (2000, June 15). Checks & imbalances: How the state’s leading fiduciary helped herself to the funds of the helpless. Phoenix New Times; Glaberson, William. (2004, March 3). Report calls for overhaul of system that protects the unfit. New York Times.

Leonnig, Carol D., Sun, Lena H., & Cohen, Sarah. (2003, June 15). Under court, vulnerable became victims. The Washington Post, A-01; Cohen, Sarah, Leonnig, Carol D., & Witt, April. (2003, June 16). Rights and funds can evaporate quickly. The Washington Post, p. A-01.

 

See state statutory guardianship monitoring chart on the website of the ABA Commission on Law and Aging, http://www.abanet.org/aging/guardian5.pdf.

Administration on Aging

Administration on Aging or AoA administers programs under the following authorizing statutes:

Older Americans Act

The Older Americans Act created AoA and authorized grants to States and Tribal organizations, as well as for research, demonstration and training projects in the field of aging.

Section 398 of the Public Health Service Act

AoA administers the Alzheimer's Disease Demonstration Grants to States (ADDGS) program created by Congress in 1991 under Section 398 of the Public Health Service Act (P.L. 78-410; 42 U.S.C. 280c-3). It was amended by the Home Health Care and Alzheimer's Disease Amendments of 1990 (PL 101-557) and by the Health Professions Education Partnerships Act of 1998 (PL 105-392).

Health Insurance Portability and Accountability Act (HIPAA)

AoA receives Health Care Fraud and Abuse Control (HCFAC) funding as authorized by the Health Insurance Portability and Accountability Act (HIPAA) of 1996. The HCFAC funds, which are received from the Medicare Trust Fund, are used to support Senior Medicare Patrols infrastructure, technical assistance, and other program support and capacity-building activities designed to enhance program effectiveness.

Title XXIX of the Public Health Service Act (42 U.S.C 201)

AoA administers the Lifespan Respite Care Program created by Congress in 2006 under Title XXIX of the Public Health Service Act.

Elder Care Resources

AoA Resources for Elders and Families

The Administration on Aging is pleased to provide the following off-site resources to connect older persons, caregivers and professionals to important federal, national, and local programs.

Please select from the list below to learn more:

  • Find Local Programs The AoA-sponsored Eldercare Locator Website links you to state and local agencies on aging and community-based organizations that serve older adults and their caregivers.
  • Check for Benefits The BenefitsCheckUp Website helps consumers find benefits programs that help them pay for prescription drugs, health care, rent, utilities, and other needs. The BenefitsCheckUp Website includes information from more than 1,650 public and private benefits programs from all 50 states and the District of Columbia.
  • Explore National Resources A part of the Eldercare Locator Website, here you will find useful topic-specific resources for older adults, caregivers and aging professionals.
  • Medicare.gov Official U.S. Government Website for the latest information on Medicare enrollment, benefits, and other helpful tools.
  • Long-Term Care Planning Long-term care includes a variety of services and supports to meet health or personal care needs over an extended period of time. The National Clearinghouse for Long-Term Care Information Website provides information and resources to help you and your family plan for future long-term care.
“Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around.”
 
― Leo Buscaglia

Medical Whistleblower Advocacy Network

MEDICAL WHISTLEBLOWER ADVOCACY NETWORK

P.O. 42700 

Washington, DC 20015

MedicalWhistleblowers (at) gmail.com

CONTACT

"Never impose on others what you would not choose for yourself."  Confucius

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Theodore Roosevelt- Excerpt from the speech "Citizenship In A Republic", delivered at the Sorbonne, in Paris, France on 23 April, 1910