Protecting Vulnerable Adults U of M Poverty law 11/26/13
Topics
Doing Poverty Law Today: Funding and Fellowships, Skill Building, New Models
Elder Abuse and Financial ExploitationIssues in Disability Law and Advocacy: The
integration mandate of Olmstead
A Poverty Law Practitioner
Required Skills*Cultural Competence*Individual Client Advocacy*Structural Advocacy: Legislative and
Administrative Policy; Targeted Litigation*Outreach and Education*Sustainability:
-Fellowships and Jobs-New Models: Low Bono; Practice Areas (elder law, consumer law, others…)
Financial Exploitation:A Form of Elder Abuse
“OUR RESPONSE TO ELDER ABUSE LAGS 40 YEARS BEHIND CHILD ABUSE AND 20 YEARS
BEHIND DOMESTIC VIOLENCE”- M . T. C O N N E L L Y
M A C R T H U R G E N I U S G R A N T F E L L O W A N D E L D E R A B U S E A D V O C A T E
An Growing Population of Seniors
Between 2000 and 2030, the 65 and overpopulation will increase from 12.1 percent to 24 percent of the total state population (or about one in every four Minnesotans).
That equals a doubling of the older population from 600,000 to 1.2 million.
Between 1995 and 2025, theproportion of Minnesota’s elderly who are nonwhite will increase from 3.7% to 9.8%
Nearly 2.75 Billion Lost Per Year…
2 Main Types of Financial ExploitationBoth provide a “New Frontier” for Pro-Bono work and Poverty Law
Familial Exploitation
• Similar to Family Law• Emotionally Charged
Disputes (maltreatment, fights over money, many non-legal issues at play
• Need for Private attorneys and pro bono work
• Bar needs to continue to create creative strategies
Representative Case:State v. Campbell
Third Party Practices
• Similar to Consumer Protection Law• Bar needs to develop already existing
laws and statutes• Continued mix of legal services | pro-
bono | low bono | and fee generating cases for private bar
Representative Case:State of Minnesota v. American Family
Prepaid Legal Corporation et al.
Nearly 2.75 Billion Lost Per Year…
State of Minnesota v. American Family Prepaid Legal Corporation et al. A11-1848
• Approx. 7 Million Awarded to the State for multiple violations of state consumer protection statutes
• Court focused on the Business-Model of the two interrelated companies and tactics used by different sales-representatives
• Tactics encouraged and taught in the Employee Handbook:• Isolate and pressure to make a decision that day – without
input from others
• Gain trust | always sit at kitchen table | always assume a sale and don’t allow time for consideration
• “You do not (and should not) say anything. Not even one word. Just start filling out the application…To be truly successful…at some moments you have to have the courage to just fill out the application”
Third Party Practices
Civil Laws – Deceptive Acts against Seniors and Disabled
PersonsSubd. 4. Private remedies.
A person injured by a violation of this section may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court.
Minn. Stat. § 325F. 71 SENIOR CITIZENS AND DISABLED PERSONS; ADDITIONAL CIVIL PENALTY FOR DECEPTIVE ACTS.
Violation of this section means:
Deceptive Trade Practices Act (Minn. Stat. § 325D.43 to 325D.48)Consumer Fraud Act (Minn. Stat. § 325F.68 to 325F.70)False Advertising Act (Minn. Stat. § 325F.67)
Third Party Practices
Un-Tested Legal Terrain
* Intersection of 325F.71 subd. 4 with the Public benefit test announced in Ly v. Nystrom 615 N.W.2d 302 (Minn. 2000)
Minn. Stat. § 325F. 71 SENIOR CITIZENS AND DISABLED PERSONS; ADDITIONAL CIVIL PENALTY FOR DECEPTIVE ACTS.
Civil Laws – Deceptive Acts against Seniors and Disabled
Persons
Protection and Prevention in Minnesota
Civil Laws – Vulnerable Adult Private Right of Action
Minn. Stat. 626.557 subd. 20Cause of action for financial exploitation; damages
Another way around Ly v. Nystrom…
The plaintiff must be a Vulnerable Adult as defined in 626.5572 subd. 21
Categorical Functional
Is in a care facility; OR Physical or Emotional Dysfunction
Receives certain at-home care benefits such as PCA hours
Impairs ability to care for oneself
Currently does not recognize many care benefits such as: SS disability or SSI; various mental health services designated
That impairment leads to maltreatment
Protection and Prevention in Minnesota
Civil Laws
Financial Exploitation – 626.5572 subd. 9
(b) In the absence of legal authority a person:
(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;
(2) obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;
(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or
(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will to perform services for the profit or advantage of another.
Minn. Stat. 626.557 subd. 20Cause of action for financial exploitation; damages
Protection and Prevention in Minnesota
Civil Laws -
Lots of opportunity for growth but need for collaboration because law is extremely
unpredictable
• Use in traditional legal services and other plaintiff’s litigation (Landlord/Tenant; Consumer Protection; Care-Facility Litigation)
• Use as a check on under-regulated industries that allow individual businesses to prey on vulnerabilities
Civil Laws – Vulnerable Adult Private Right of Action
Gold and
Coins
Medical Device and
Services
Financial Schemes
?
Nearly 2.75 Billion Lost Per Year…
2 Main Types of Financial ExploitationBoth provide a “New Frontier” for Pro-Bono work
Familial Exploitation
• Similar to Family Law• Emotionally Charged
Disputes (maltreatment, fights over money, many non-legal issues at play
• Need for Private attorneys and pro bono work
• Bar needs to continue to create creative strategies
Representative Case:State v. Campbell
Third Party Practices
• Similar to Consumer Protection Law• Bar needs to develop already existing
laws and statutes• Continued mix of legal services | pro-
bono | low bono | and fee generating cases for private bar
Representative Case:State of Minnesota v. American Family
Prepaid Legal Corporation et al.
Nearly 2.75 Billion Lost Per Year…
State v. Campbell756 N.W.2d 263 (Minn. App. 2008)
• 2 Brothers - Good Cop v. Bad Cop with Mom in the Middle• Characteristics of a Familial Exploitation Case
• Diminishing capacity of the Senior and accompanying difficult behaviors
• Bad Cop son Abuse of Power of Attorney• Estate Planning attorneys at center of the storm• Classic defenses: “It was gifted / she consented”
• Some Important Legal Precedent• Criminal Vulnerable Adult Financial Exploitation Statute is not
unconstitutionally vague• Fiduciary duty arises in context of joint bank account holders
Recognizing Fiduciary/Family Abuse
The Abuser The Senior
Often has financial issues Feels guilty
May have addiction issues: Drugs, Alcohol, Gambling
Believes they are helping and that the person can get better
May have other mental illness – Diagnosed or Undiagnosed / Treated or Untreated
Does not understand the depth of mental illness or how it works
“Sells” with stories Feels heard, comforted, and appreciated
Once in control – may use threats
Fear, anxiety, shame, isolation
Uses “Expertise” to confuse, shield activities, control the relationship
Trusts that the abuser knows more than they do
Some studies show upwards of 70% of financial exploitation comes from someone the Senior knows and
trusts
Friends
Family
Neighbor
“Drifters”
Professional: Real Estate,
Finance, Guardian,
Conservator
Protection and Prevention in Minnesota
Civil Laws
Financial Exploitation – 626.5572 subd. 9
a) In breach of a Fiduciary obligation recognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:
(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or
(2) fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.
Minn. Stat. 626.557 subd. 20Cause of action for financial exploitation; damages
Protection and Prevention in Minnesota
Other Civil Remedies for Collateral Consequences of the Exploitation
• Probate and Estate services• Landlord tenant | Eviction• Orders for Protection• Mediations
ProJusticeMN http://www.projusticemn.org/ •**Growing referral network for cases**•Growing resource library for expanding resources and this area (and all legal services and pro bono areas of law)•Create an account to access materials and browse potential pro bono cases
LawHelpMN http://www.lawhelpmn.org/ •Designed for the community at large to access•Basic fact sheets•A great place to start for Pro Bono attorney for context in an area of “poverty law”
Prevention Practices
Baseline Screening:A “Typical” Senior Budget
Income Sources Expenditures
Social Security Housing Needs
Pensions / Retirements Health Care: Out of Pocket, Prescriptions
Spousal Benefits Food / Clothing / Other Necessities
Annuities or Other Insurance Payments
Gifts / Charities / Other Support
Reverse Mortgage / Other Investments
Olmstead Integration Mandate
Another Area of Advocacy for Vulnerable Adults in Minnesota
Institutionalization of persons with Developmental Disabilities and Mental Illness [Up through 1970’s]
Deinstitutionalization without robust community supports [1970’s and 1980’s]
Models for Paying for Long-term services and supports in community settings emerge slowly
Olmstead Decision[1999]
Private and Public enforcement of Olmstead leads to a refining of models for community-living and integrating people into all aspects of society (including jobs and independent housing)
Olmstead Integration Mandate
LINKS• Minnesota’s Olmstead Plan• Department of Justice Olmstead Technical Guidance• ADA.Gov – Olmstead Homepage
[From ADA.Gov Olmstead Homepage]…
Lois Curtis and Elaine Wilson, who had mental illness and developmental disabilities, were voluntarily admitted to the psychiatric unit in the State-run Georgia Regional Hospital. Following the women's medical treatment there, mental health professionals stated that each was ready to move to a community-based program. However, the women remained confined in the institution, each for several years after the initial treatment was concluded. They filed suit under the Americans with Disabilities Act (ADA) for release from the hospital.
On June 22, 1999, the United States Supreme Court held in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act. The Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.
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