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The Honolulu Advertiser
Posted on: Tuesday, June 6, 2006

Enhanced protection for seniors is needed

By Thomas Grande

Rob Perez's excellent series on exploitation of elders underscores the need to improve our laws to protect our kupuna.

Frequently, physical abuse or financial exploitation of elders is not reported because of the victim's fear of reprisal or because the elder does not know to whom to turn. The U.S. Senate Committee on Aging estimates that as much as 84 percent of elder abuse and exploitation goes unreported and that more than 5 million older Americans are physically abused each year. Millions more are financially exploited each year.

And because elder abuse and exploitation is a "hidden crime," it is rarely prosecuted successfully.

Perez's series emphatically showed that government alone cannot combat the predators who seek to exploit our seniors physically and financially.

Elder physical abuse and financial exploitation can only be stopped if there is a partnership among private social service and advocacy groups and government authorities. An important part of that private-public partnership is involving private attorneys in protecting seniors.

Our consumer and business protection laws provide the model for the private-public partnership that is needed to fight elder abuse and exploitation. Consumer and business protection laws generally provide enhanced damages that serve as both a deterrent to wrongful conduct and an incentive to bring actions against wrongdoers.

Government agencies enforce these laws. The Office of Consumer Protection brings cases under our consumer protection laws; the Attorney General's Office brings cases under our business protection laws.

But an important part of the consumer and business protection laws allows private attorneys representing consumers and businesses to bring lawsuits directly. The ability to sue directly enhances the safeguards for both consumers and businesses and makes sure that government is not alone in its battle to enforce these laws.

Consumer and business protection laws are designed to discourage wrongdoers by potentially tripling damages paid to the victims and attorney's fees. Importantly, our consumer protection laws also provide for a statutory minimum award of $5,000 where the victim of a consumer scam is an elder. These same deterrents and protections are need for elder abuse and exploitation.

Enhanced protections for seniors under our consumer protection statutes work. A class-action lawsuit was recently settled against a private company for allegedly selling recycled medication.

Every senior member of the class whose records could be verified received a 100 percent refund of monies paid for recycled drugs. And $2.3 million of the settlement created a Center on Law, Medicine and Aging at the University of Hawai'i law school and funded geriatric programs at the University of Hawai'i medical school.

The private-public partnership under our consumer and business protection laws works. Let's help the partnership do the same work under the Hawai'i Elder Justice Act.

Unfortunately, consumer protection laws only apply when an elder is financially defrauded by a merchant. This creates a "gap" in our senior protections, particularly when they are physically abused or financially exploited by individuals. This "gap" was illustrated by Perez.

In 2003, the Legislature passed the Hawai'i Elder Justice Act, giving the Attorney General's Office the authority for the first time to prosecute civil cases against elder exploiters and abusers.

The Elder Justice Act has proved an important tool in prosecuting wrongdoers in civil court when there is not enough evidence to bring a criminal action. Because of the "gap" in enforcement, abusers and exploiters are not being pursued and are getting away with their heinous conduct.

Public resources are not sufficient to address this serious and growing problem. We need to follow a proven model the public-private partnership that enforces consumer and business protection laws. We should allow the abused or exploited elder to sue directly for enhanced damages under the Elder Justice Act for:

  • Triple damages for abuse, neglect or exploitation that causes emotional distress, personal injury, death or loss of money or property.

  • Minimum statutory damages of $5,000.

  • Payment of the elder's attorney's fees and costs by the abuser or exploiter.

    These amendments will make sure that our seniors get the same protections that we give to consumers and businesses. We need to use private resources to supplement and support government actions.

    Hawai'i kupuna deserve the strongest protection possible for physical abuse and financial exploitation. Government cannot solve this problem alone. It's time for the Legislature to take action to protect our senior citizens by amending the Hawai'i Elder Justice Act to protect our seniors.

    Thomas Grande is a Honolulu attorney who prosecutes healthcare fraud cases and consumer cases. He was class counsel in a $2.3 million settlement benefiting Hawai'i's seniors and the University of Hawai'i. He wrote this commentary for The Advertiser.