Law makes it hard to protect Isles' seniors
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Forum: Financial abuse of seniors |
By Rob Perez
Advertiser Staff Writer
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When Catharine Cunha emptied her bank account of more than $30,000, the people running the retirement community where she lived became alarmed.
Cunha, then 83, suffered from memory problems, delusional thinking, hoarding tendencies and impaired hearing.
Cunha's money was unaccounted for and Arcadia Retirement Residence officials learned in 2000 that Cunha's longtime friend had accompanied the elder woman each time she withdrew the funds.
To them, this was a classic case of financial exploitation of a vulnerable senior. They reported to the state's Adult Protective Services their suspicions that the friend had stolen the money.
But APS, the agency that investigates suspected abuse of dependent adults, told Arcadia President Emmet White that it couldn't intervene, because Cunha wasn't in imminent danger of continued abuse. By then, her Alzheimer's disease had landed her a spot in Arcadia's skilled nursing facility.
"It was frustrating. We hit a blank wall," White said.
Two years later, a judge ruled in a civil lawsuit that the friend took the money and must repay Cunha's guardian more than $37,000.
The Cunha case highlights what many elder advocates, attorneys and others say is a glaring gap in the Hawai'i law designed to protect the state's most vulnerable adults from abuse.
The law is so restrictive in defining who Adult Protective Services can help that hundreds of suspected abuse cases go unchecked, leaving a sizable part of Hawai'i's aged population without protection and potentially in harm's way.
Seniors must meet three requirements before the agency can investigate their cases. They must be dependent on others for care because of a mental or physical impairment, the victim of abuse and in imminent danger of continued abuse. Many cases fail to meet that high threshold.
According to an American Bar Association official, Hawai'i's statute is the most restrictive in the country.
"You're giving free passes to many abusers," said Lori Stiegel, an American Bar Association attorney and elder-law expert who has analyzed adult-protection statutes nationwide.
'VERY BIG HOLE' IN LAW
During the past two years, APS received more than 1,800 calls about suspected abuse of seniors 60 or older. It investigated fewer than half of them.
The shortcomings in the statute are just one example of how Hawai'i's system for protecting seniors from financial exploitation, a largely hidden but growing problem here, is failing many vulnerable residents.
Critics further say the network of services available to seniors is so fragmented and poorly coordinated that many elder adults are confused about what help is available and who to call when assistance is needed.
"We don't have a good, comprehensive system, and God knows people have tried," said Marilyn Seeley, former head of the state Executive Office on Aging, who works as a consultant.
Elder advocates also note that state laws in key areas fail to provide enhanced penalties if seniors are victimized by financial abuse, leaving them more vulnerable.
"There's a very big hole in our law that doesn't give those enhanced protections to the very population we need to protect," said attorney Tom Grande, who has pushed for changes in the law at the Legislature.
As Hawai'i's population grows grayer with the aging of baby boomers, the problem of financial exploitation will only get worse.
Experts say it is already big, but no one knows how big. There are no reliable statistics, mainly because financial fraud against Hawai'i's elderly is vastly underreported. Many victims are reluctant to report the abuse. Some don't even realize they are being abused.
Yet anecdotal evidence points to a growing numbers of cases in which seniors have lost hundreds of thousands of dollars, personal property and even their homes.
When the senior-advocacy group AARP Hawai'i surveyed more than 1,200 members in 2000, one in four said they had been victims of a major fraud. If that same ratio is applied to the state's population of seniors 65 and older in that year, more than 40,000 would have considered themselves victims.
The fraud can come in many forms: Internet scams, sweepstakes schemes, high-pressure telemarketing pitches, identity theft. The perpetrators can be strangers or close family members, caregivers or slick salespeople.
Experts say the exploitation is happening in every community, on every island and in every ethnic group, affecting elderly residents from all walks of life. But it rarely breaks the surface.
"A huge chunk of what goes on is never talked about and is tough to pin down," said Deborah Jackson, owner of Eldercare Hawai'i, a business that provides planning services and support to families with elderly members.
AGENCY DEFENDS RECORD
The state's adult-protection law was considered progressive when it was adopted in 1989 but has remained largely unchanged since then. The statute establishes the three requirements that must be met before officials can conduct a formal investigation of suspected elder abuse.
In the majority of other states, formal investigations are required if the suspected victim is considered impaired or vulnerable to abuse, said Stiegel, associate staff director of the American Bar Association's commission on law and aging.
A handful of states require investigations merely if the alleged victim is at least a certain age, such as 65 in California.
Hawai'i, however, is the only state to require that the alleged victim be dependent, and the two other requirements shrink the protective net even more, according to Stiegel.
"Nobody else does it in as restrictive a fashion as Hawai'i," she said. "It is highly and unusually restrictive."
Officials with the state Department of Human Services, which oversees APS, said the law is accomplishing what legislators intended: protecting dependent adults.
"We feel like we're doing that," said Patty Johnson, a Department of Human Services administrator. "We are implementing the law as it is written and the way the intent was expressed to us by the Legislature."
Johnson disputed the contention that Hawai'i's law is the most restrictive in the country, but she couldn't cite other states with equally restrictive statutes. Because of the bar association's assessment, Johnson said she has assigned a staff member to do a comparative analysis, but that will take time.
Johnson also questioned the notion that many seniors are going unprotected, saying APS often refers cases to police or other programs if her agency can't intervene.
"We do not believe we leave people in danger."
One Department of Human Services program, for instance, helped 69 seniors between October and March who were believed to be victims of a crime but did not meet the APS criteria. Johnson said her department's database wasn't sophisticated enough to determine what happens to all cases that are called in to APS but not investigated.
FRUSTRATION RISING
Many elder advocates say having an unusually high threshold makes no sense and only exacerbates an abuse problem that afflicts many seniors who are extremely vulnerable but not considered dependent.
"A lot of people are slipping through the cracks because of a worn-out law that needs updating," said attorney James Pietsch, director of the Elder Law Program at the University of Hawai'i.
The high threshold frustrates social workers and others who report cases of suspected abuse but are told APS cannot intervene, elder advocates say.
"We're concerned about that a lot," said Alan Parker, director of the Hawai'i County Office of Aging.
The frustration is reflected in cases like these:
When the gerontology program contacted APS about the case, program officials believed the agency would intervene because of the woman's Alzheimer's. But the agency declined to take the case.
"We were told she didn't meet the criteria," Wong said. His group is trying to get a relative to become her guardian so she can be moved from the son's home.
Someone who was aware of what was happening called APS, which talked to the woman. But the agency determined she wasn't considered a dependent adult, therefore it couldn't intervene, according to Wong. She instead was advised to call Wong's program, which is assisting the woman.
Once officials began assisting her, they realized the woman continued to suffer verbal and financial abuse from her adult children and grandchildren, who lived in her home, according to Pietsch.
She told the officials she was terrified that her children were going to physically harm her. The verbal abuse was bad enough that Pietsch and his law students helped the woman go to court — weeks after the initial call to APS was made — to get a restraining order against the abusive family members, Pietsch said. If not for the court intervention, "we felt (the abuse) would have escalated, and we don't know what would've happened then," he said.
In the Cunha case, police declined to pursue theft charges, telling Arcadia's White that the elder woman's memory problem would be an issue.
A year later, White, as Cunha's court-appointed guardian, sued Molly Hashimoto, the long-time friend, over the missing money. A judge ruled in April 2002 that Hashimoto must repay more than $37,000 plus interest. The judgment has yet to be paid.
Hashimoto, 69, who had some legal powers for Cunha when the bank withdrawals were made, told The Advertiser that she did not take any money from her friend, who died in 2002.
"I don't know about this $30,000 or whatever they're talking about," she said. "Never did I take advantage of her."
Bob Blancato, coordinator of the Washington, D.C.-based Elder Justice Coalition, a national advocacy group pushing for stronger federal laws, agreed that Hawai'i's law is flawed and leaves vulnerable seniors unprotected.
"It's a system that at the very least is insensitive to a growing problem that exists in Hawai'i, whether (state officials) want to admit it or not," Blancato said.
REFORM ATTEMPTS FAIL
Attempts have been made in the past to broaden the law, but they have all fizzled.
In 2000, a governor's committee on elder abuse, headed by Pietsch, recommended that the law be amended to add an elder age component, similar to what California has, and to make the law apply to a broader category of vulnerable adults.
The Department of Human Services at the time voiced concerns about adding the age qualification, saying it would be discriminatory and substantially increase the department's caseload at a time it didn't have adequate staffing for existing work. The recommendation went nowhere.
Several years later, Sen. Suzanne Chun Oakland, a key legislator on elder issues, said she introduced a bill to make the law less restrictive, but no one testified in support, so the measure died. She also said she has not heard from social workers or others expressing concerns about the existing law.
But as a result of inquiries from The Advertiser, Chun Oakland, D-13th (Kalihi, Nu'uanu), asked the Senate Majority Office to do a study comparing Hawai'i's law with those from other states. If enough support develops in the community, she said, the Legislature can again look at changes.
Johnson said she and her staff reviewed the statute last summer with the intention of recommending changes, but then determined none was warranted because the law was working as the Legislature intended. She said APS staff levels currently are sufficient to handle the roughly 500 to 600 investigations it does annually.
If people believe the APS law needs amending, the Legislature has that power, Department of Human Services officials said. "It's not us," said Lillian Koller, department director.
Koller said the department would be happy to work with the Legislature and a broad coalition of interested groups to examine possible amendments.
But Johnson sounded a cautionary note. "I just can't imagine there are a lot of 65-year-olds out there who would want us to change the law so we can automatically investigate them," she said.
Reach Rob Perez at rperez@honoluluadvertiser.com.
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