[Senate Hearing 114-840]
[From the U.S. Government Publishing Office]
S. Hrg. 114-840
TRUST BETRAYED: FINANCIAL ABUSE
OF OLDER AMERICANS BY GUARDIANS
AND OTHERS IN POWER
=======================================================================
HEARING
BEFORE THE
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
WASHINGTON, DC
__________
NOVEMBER 30, 2016
__________
Serial No. 114-29
Printed for the use of the Special Committee on Aging
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-692 PDF WASHINGTON : 2022
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SPECIAL COMMITTEE ON AGING
SUSAN M. COLLINS, Maine, Chairman
ORRIN G. HATCH, Utah CLAIRE McCASKILL, Missouri
MARK KIRK, Illinois BILL NELSON, Florida
JEFF FLAKE, Arizona ROBERT P. CASEY, JR., Pennsylvania
TIM SCOTT, South Carolina SHELDON WHITEHOUSE, Rhode Island
BOB CORKER, Tennessee KIRSTEN E. GILLIBRAND, New York
DEAN HELLER, Nevada RICHARD BLUMENTHAL, Connecticut
TOM COTTON, Arkansas JOE DONNELLY, Indiana
DAVID PERDUE, Georgia ELIZABETH WARREN, Massachusetts
THOM TILLIS, North Carolina TIM KAINE, Virginia
BEN SASSE, Nebraska
----------
Kevin Kelly, Majority Staff Director
Derron Parks, Minority Staff Director
C O N T E N T S
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Page
Opening Statement of Senator Susan M. Collins, Chairman.......... 1
Opening Statement of Senator Claire McCaskill, Ranking Member.... 3
PANEL OF WITNESSES
Kathryn A. Larin, Acting Director, Forensic Audits and
Investigative Services, U.S. Government Accountability Office,
Washington, D.C................................................ 5
Cate Boyko, Manager, Minnesota Judicial Branch Conservator
Account Auditing Program, Ramsey, Minnesota.................... 7
Jaye L. Martin, Executive Director, Legal Services for The
Elderly, Augusta, Maine........................................ 8
Jessica Kruse, Attorney, Ozarks Elder Law, Springfield, Missouri. 10
APPENDIX
Prepared Witness Statements
Kathryn A. Larin, Acting Director, Forensic Audits and
Investigative Services, U.S. Government Accountability Office,
Washington, D.C................................................ 31
Cate Boyko, Manager, Minnesota Judicial Branch Conservator
Account Auditing Program, Ramsey, Minnesota.................... 39
Jaye L. Martin, Executive Director, Legal Services for The
Elderly, Augusta, Maine........................................ 53
Jessica Kruse, Attorney, Ozarks Elder Law, Springfield, Missouri. 58
TRUST BETRAYED: FINANCIAL ABUSE
OF OLDER AMERICANS BY GUARDIANS
AND OTHERS IN POWER
----------
WEDNESDAY, NOVEMBER 30, 2016
U.S. Senate,
Special Committee on Aging,
Washington, DC.
The Committee met, pursuant to notice, at 2:29 p.m., in
Room 562, Dirksen Senate Office Building, Hon. Susan M.
Collins, Chairman of the Committee, presiding.
Present: Senators Collins, Flake, Scott, Tillis, McCaskill,
Casey, Blumenthal, Donnelly, Warren, and Kaine.
OPENING STATEMENT OF SENATOR
SUSAN M. COLLINS, CHAIRMAN
The Chairman. Good afternoon. Before we begin the hearing
today, I would like to just take a couple of moments to thank
the Committee's Ranking Member for her extraordinary service
during this past Congress. Regrettably, Senator McCaskill,
while she will still remain, I believe, a member of the
Committee, has decided to accept another position as Ranking
Member of another Senate committee, which will preclude her
remaining as Ranking Member of this Committee. I cannot
understand that decision, but I am going to have to accept it,
but in all sincerity, I want to say that it has been such an
honor and pleasure to work so closely with a Senator who cares
so much about the issues facing our seniors in this country, a
Senator who never hesitated to wade into the most complicated
of issues, such as our drug-pricing hearings and investigation,
and who has initiated many important projects that this
Committee has taken on.
As a friend, I will say that it has also been wonderful to
work with Senator McCaskill on a personal level, so I just want
to thank her and her staff for all of your hard work, your
caring, your probing, your compassion, and I believe that,
working together in a completely bipartisan way, we have made a
real difference for the seniors of this country through the
work we have accomplished together, so I will miss you sitting
immediately to my right, but if you want to come back, you
always are welcome.
Senator McCaskill. Well, thank you, Madam Chairman, and let
me just say that there were times that the Chairman and I
played good cop/bad cop, and I will let you guess which one I
was.
She is always so prepared and so substantive, and I think
the saddest thing about us parting ways at this point is that
it is too bad that more Americans do not realize that this kind
of work goes on. It is too bad that the cynicism that is out
there about Government does not bother to look into committee
hearing rooms where there is a Republican and a Democrat
working as hard as they know how toward a common interest, and
the reason that is possible is because the Chairman was never
interested in scoring political points. She was interested in
scoring policy achievements on behalf of the senior citizens of
this country, and it is that that makes the working
relationship possible, developing the trust and the confidence
in one another that none of us, neither one of us were going to
try to score points at the other one's expense.
It happens here, and I wish more Americans realize it
happens here. They would probably feel a little bit better
about Washington, DC, and in the long run, that is an essential
part of our democracy, that the people who we represent have
some faith that we are, in fact, working in their best
interests, so this Committee will remain in very good hands
with Susan Collins. My colleague Bob Casey I believe is going
to take my place as Ranking. Now, you may have a little trouble
because he is a lot nicer than I am, so you may end up having
to be the bad cop with Bob Casey because he is so sweet and so
nice, but I will continue to be very interested in these
issues, and I am confident we will find places to work together
again, and it has been truly my honor to enjoy the friendship
and the respect that you so kindly afforded me. Thank you.
The Chairman. Thank you.
We will now turn to our hearing. Earlier this year, an
attorney in the small coastal city of Belfast, Maine, was
sentenced to 30 months in prison for bilking two elderly female
clients out of nearly a half a million dollars over the course
of several years.
The lawyer's brazen theft was uncovered when a teller at a
local bank noticed that he was writing large checks to himself
on the clients' accounts. When confronted by authorities, he
offered excuses that the prosecutor later described as
``breathtaking.'' For example, according to press reports, he
put one of his clients in a nursing home to recover from a
temporary medical condition, but then kept her there for 4
years until the theft of her funds came to light. Meanwhile, he
submitted bills for ``services,'' sometimes totaling $20,000 a
month, including charging her $250 per hour for 6 to 7 hours to
check on her home, even though his office was just a 1-minute
drive down the road.
Another tragic case of theft and abuse of an elderly woman
was brought to light in an article that appeared just this last
weekend in the Maine Sunday Telegram, and as you can see, it
was the lead article and talks about a senior citizen, whose
age is now 90, who was ripped off by people who allegedly
befriended her and then got her power of attorney, sold her
home, moved her from California to a cabin in Maine, where she
was found abandoned, and as the headline says, ``With Friends
Like These.'' When she was found in 2012, she was alive, but
not healthy. The three people who had befriended her years
earlier had just left her there after gaining control of her
finances. They sold her home, and they stole her money, and
today this 90-year-old woman is a ward of the State and lives
in a nursing home in rural Maine, thousands of miles away from
the life that she once knew.
These Maine cases represent shocking breaches of trust, but
as this Committee knows--and as we will learn further today--
financial abuse of our seniors by those whom they trust is far
too common. Sometimes, that abuse is perpetrated by ``friends''
or family members who are handling the victim's affairs
informally. Other times, the abuse is committed under color of
a fiduciary relationship, such as a power of attorney in the
Maine cases, or what is known as ``guardianship.''
One would hope that this abuse would be unusual where
guardians are involved since these fiduciaries are formally
appointed and overseen by State courts, but experience has
shown that this is not always the case.
In a 2010 report, the Government Accountability Office
identified hundreds of allegations of abuse, neglect, and
exploitation by guardians. We also learned that a key challenge
to combating this abuse is the lack of clear data on
guardianships and inconsistent oversight.
That is why, last year, I joined with Ranking Member
McCaskill in asking the GAO to update its analysis to help us
better understand the extent to which our seniors remain at
risk of financial exploitation by guardians and what is being
done to protect them. This issue continues to be of interest to
other members of our Committee, including Senator Scott, who is
here today, and Senator Hatch, who joined as a co-requestor of
the report. GAO's work shows that progress is being made, but
much more needs to be done to put best practices in place to
oversee guardians and create the tools needed to uncover
potential abuse in time to stop it. Seniors in need of
assistance to manage their financial affairs should not have
their trust betrayed, leaving them destitute in some cases.
Guardians should be protecting vulnerable seniors, not stealing
from them.
I thank all of our witnesses for agreeing to appear today,
and I very much look forward to hearing your comments on this
important topic.
I now will turn to our Ranking Member for her opening
statement.
OPENING STATEMENT OF SENATOR
CLAIRE McCASKILL, RANKING MEMBER
Senator McCaskill. Thank you, Chairman Collins, and thank
you for your leadership on this issue and many others.
Elder abuse and exploitation of any kind is a tragedy, but
it is particularly painful when abuse is being perpetrated by
those who have been entrusted to protect the victims. According
to the most recent published statistics, the Missouri
Department of Health and Human Services received over 17,000
initial reports of abuse, neglect, and financial exploitation
of seniors in 1 year. It is unclear, however, how many of these
cases involve financial exploitation specifically.
Unfortunately, the extent of elder abuse by guardians is
relatively unknown to us due to the limited data that we have
available. It is important that we continue to prioritize data
collection in this space so that we can better understand the
breadth and scope of this issue.
I am pleased to be here today with Chairman Collins for the
unveiling of this important GAO report that we requested last
year. I have been proud of the work we have been able to do
together on the Aging Committee to help combat elder abuse.
From our work highlighting senior scams, to exposing the
financial exploitation of seniors, and now to our closer look
at guardianship abuse, I have been proud to sit beside you as
we work to protect our seniors.
Unfortunately, we still have limited information on the
prevalence of guardianship abuse across the country, and data
varies widely State to State. However, innovative work is being
done in several States and by outside groups to bridge the
information gap. GAO identified a number of steps that States
can take to help protect seniors from detrimental guardianship
arrangements. For example, State courts should do their due
diligence to make sure that a guardian is truly needed for an
individual before one is appointed; allowing seniors to remain
in the ``least restrictive option'' can protect the individual
while also maintaining as much freedom as possible.
Additionally, State courts should periodically reexamine
whether guardianships are working well for both parties over
the course of the arrangement and make adjustments where
necessary.
While the Federal Government does not have the authority to
regulate guardianship, there are steps being taken to offer
indirect support to States and to encourage data collection.
Early next year, the Department of Health and Human Services
will be launching the National Adult Maltreatment Reporting
System to provide accurate national data on elder abuse. The
system will draw on data submitted by Adult Protective Services
agencies and will identify multiple types of elder abuse,
including instances involving guardians. I am looking forward
to reviewing this important information as we continue this
fight.
I would like to take a moment now to introduce one of the
witnesses on today's panel from my home State of Missouri.
Jessica Kruse is an attorney with Ozarks Elder Law in
Springfield. Ozarks Elder Law does very important work in
southwest Missouri helping seniors and their families with many
elder law issues, including guardianship. In addition, Jessica
is a statewide leader on elder law issues as the president of
the Missouri chapter of the National Academy of Elder Law
Attorneys and the Chair of the Elder Law Committee for the
Missouri Bar. I look forward to hearing her testimony today and
learning about the important work that she is doing in my
State.
I also look forward to hearing the testimony from our other
distinguished witnesses about how we can continue to confront
this challenge. Thank you, Chairman Collins, for this important
hearing, and thank you to our witnesses for taking the time to
be here today.
The Chairman. Thank you.
Senator Scott, I know that you can be here only briefly, so
I would love to give you an opportunity for some comments given
your interest in this important issue.
Senator Scott. Thank you very much, ma'am. Thank you,
Chairwoman, for this opportunity, for this hearing, and to the
Ranking Member as well for your participation, and other
members who are certainly invested in looking for solutions.
As I have said several times on this Committee, I have
spent 25 years or so in the insurance industry and had an
opportunity to have many interactions with folks and their
finances, and the level of abuse that is in this space is
tremendous. In South Carolina, we are looking at about a 36-
percent increase in senior population between now and 2030.
These issues will become more important, and unfortunately, we
will see more abuse, and looking for ways to solve the problems
before they start seems to be perhaps the most important part.
Ms. Cate Boyko, your program, the online approach that
creates accountability, is such an important part of that. The
one thing that I learned through the industry was that the more
folks know someone else is watching or has access to it, the
better off the senior is, and the thing that really saddens me
the most--and I spoke to my probate judge in Charleston County,
Irv Condon, about this issue--is that the most vulnerable folks
financially are oftentimes our seniors, and that family members
and friends take advantage of their situation. Just beyond the
fact that it is unethical, it is absolutely immoral, and so
having an opportunity for y'all--which is Southern for ``you
all''--to weigh in on this very important issue is critically
important to our seniors, and this hearing alone will educate
seniors who are watching this hearing prepare for their own
situation and put them in a better place going forward, so
thank you very much for your testimony. I have had an
opportunity to read through some of the testimony, and I truly
appreciate that part. Thank you, Chairwoman, for holding the
hearing, and to the Ranking Member as well.
The Chairman. Thank you.
I want to give our other members also, if they want to take
a couple of moments--fine. Great. Thank you. We will then move
to our witnesses.
First we will hear from Kathryn Larin. Ms. Larin is the
Acting Director of the Forensic Audits and Investigative
Services team at the U.S. Government Accountability Office,
better known as GAO.
Next we will hear from Cate Boyko. She is the manager of
the Conservator Account Auditing Program for the Minnesota
Judicial Branch, and Minnesota has been a real leader in this
area.
We will then hear from a very important witness because she
is from the State of Maine, Jaye Martin, who is the executive
director of Legal Services for the Elderly in Augusta, Maine,
and our final witness, Jessica Kruse, has already been
introduced by the Ranking Member.
Ms. Larin, we will start with you. Thank you.
STATEMENT OF KATHRYN A. LARIN, ACTING DIRECTOR,
FORENSIC AUDITS AND INVESTIGATIVE SERVICES,
U.S. GOVERNMENT ACCOUNTABILITY OFFICE,
WASHINGTON, D.C.
Ms. Larin. Chairman Collins, Ranking Member McCaskill, and
members of the Committee, I am pleased to be here today to
discuss our most recent report on elder abuse by guardians.
Over the past several years, GAO has produced several
reports on the critical issue of elder abuse and elder
financial exploitation. Today I am going to focus on a
particularly vulnerable segment of the older adult population--
those with guardians. When an older adult becomes incapable of
making informed decisions, a guardianship may be necessary.
Guardianships are legal relationships created by State courts
giving a person or entity the authority to make decisions on
behalf of an incapacitated individual. While many guardians act
in the best interests of persons under their guardianship, some
have been reported to engage in the abuse of older adults.
My remarks today highlight two key issues: what is known
about the extent of elder abuse by guardians, and what measures
have Federal, State, and local agencies taken to help protect
older adults with guardians.
First, on the extent of elder abuse by guardians,
unfortunately we know very little. There are currently no
national statistics on the number of guardians assigned to
older adults, the number of older adults in guardianships, or
the number of abuse cases involving older adults with
guardians.
Because guardianship is typically the responsibility of
State and local court systems, we talked to court officials in
six States and found that data limitations prevent reliable
estimates of elder abuse by guardians, even at the State level.
For example, while a State may have statistics on cases
involving assault, battery, or theft, cases are often not
identified as elder abuse or elder financial exploitation.
Likewise, courts may not classify cases by the age of the
victim or by whether a guardian was involved.
In the absence of reliable data, information on individual
cases can provide some insight into the types of abuse
guardians have been found to inflict on older adults in
guardianship. We describe eight cases in which guardians were
found to have financially exploited or neglected older adults
under guardianship in the past 5 years. For example, one
professional guardian misappropriated more than $200,000 over 6
years from persons under his care.
There are some efforts underway to collect better data on
elder abuse and guardianship. The Department of Health and
Human Services plans to launch the National Adult Maltreatment
Reporting System by early next year. This system will compile
data from State Adult Protective Services agencies to provide
consistent national data on abuse and financial exploitation of
older adults. It will have the capacity to identify cases where
guardians are involved. This will be an important resource for
better understanding the scope of this problem.
Turning now to measures that help protect older adults with
guardians, the Federal Government does not regulate or directly
support guardianship, but Federal agencies do offer grant
programs to support State and local guardianship efforts. These
grants help to share best practices and facilitate coordination
between courts and those directly involved in caregiving,
because State and local courts have primary responsibility over
the guardianship process, they have a key role in preventing
elder abuse by guardians. Measures taken to help protect older
adults with guardians vary but generally include four key
elements: screening, for example, to ensure only those in need
are assigned a guardian; education of guardians, including
certification programs; monitoring of things like caretaking,
fees charged by guardians, and complaints against guardians;
and enforcement, to ensure that guardians who have committed
elder abuse are removed from their positions and face
consequences.
In conclusion, the number of adults over the age of 65 is
expected to nearly double by the year 2050. Older adults who do
not have the capacity to make informed decisions about their
own welfare are an extremely vulnerable population. As their
numbers increase, it will be important for those at all levels
of Government to be aware of the potential for abuse and take
steps to prevent it.
This concludes my prepared statement. I am happy to answer
any questions you may have.
The Chairman. Thank you very much.
STATEMENT OF CATE BOYKO, MANAGER, MINNESOTA
JUDICIAL BRANCH CONSERVATOR ACCOUNT
AUDITING PROGRAM, RAMSEY, MINNESOTA
Ms. Boyko. Chair Collins, Ranking Member McCaskill, and
other members of the Committee, I am Cate Boyko, manager of the
Conservator Account Auditing Program for the Minnesota Judicial
Branch, and I have had the privilege of managing this statewide
audit program since its inception in 2012. In Minnesota,
conservatorship is used to describe the court appointment of
someone to handle the financial matters of a vulnerable person.
Conservators in Minnesota file annual accountings to the court
on the anniversary of their appointment. In 2015, Minnesota
conservators filed accountings reporting over $908 million in
assets. Minnesota is one of the very few courts that know how
much money is under our court jurisdiction.
The Minnesota Judicial Branch has developed a multipronged
approach to ensure our courts provide oversight of vulnerable
persons in Minnesota under conservatorship. This includes
biannual background checks, online training, auditing of
accountings, and court hearings to address the audit findings.
I believe the Minnesota approach is a national model to address
the issue of financial abuse of older Americans by
conservators.
There is a need to ensure that courts provide oversight for
the growing population of the vulnerable under court
jurisdiction. However, with court budgets being cut and public
safety being a priority, probate case types tend to receive
lower priority and attention throughout the Nation. Courts do
not always have the right staff to provide the specialized
monitoring and auditing of financial accounts.
From 2010 to today, Minnesota courts have evolved from the
unwieldy process with conservator accounts submitted to the
court on paper, often accompanied by a shoe box of receipts, to
our current approach: professional auditing of the accountings
and an online account filing system.
In 2012, I was hired as the audit manager to build the
auditing component--the Conservator Account Auditing Program,
or CAAP. CAAP is a statewide account auditing center created
and funded to monitor and audit financial activities of
conservators.
With a staff of ten auditors and a part-time help desk
person, we audit all conservator accountings from both
professional and non-professional conservators. The conservator
must report all transactions--income, expense, and debt--that
occur during the annual reporting period using the online
system.
The audits completed by CAAP are extensive. The auditor
reviews the account that is filed, reconciles the accounting,
and reviews all third-party financial statements, canceled
checks, invoices, fee invoices, receipts, and tax returns. The
auditor also reviews the spending to determine if it is
appropriate for the protected person's station in life.
Once the audit is complete, the auditor files an audit
report with the court and provides a copy to the conservator.
The audits are rated upon completion by findings; 12 percent of
the cases audited have concerns of loss.
Examples of what the auditors have found in our most
egregious cases are missing income; cash withdrawals;
unreported assets; money disappearing when accounts are closed;
multiple dining-out and vacation expenses for multiple people;
unauthorized purchases of pools, houses, cabins, boats, cars,
campers; household repairs conducted by unqualified family
members without permits billed at professional rates; loans
from the protected person's funds; fraudulent documentation;
extraordinary fees. The list goes on and on.
Once the audit is filed, a hearing is held, and the judge
addresses the issues presented in the audit report. Examples of
outcomes include discharge or termination of the conservator,
referral to the prosecutor for criminal investigation, criminal
charges of financial exploitation of a vulnerable adult,
repayment of funds, orders for judgment, and surcharging of the
surety bond.
The online filing system used by conservators by Minnesota
Conservator was created with the assistance of a grant from the
State Justice Institute. With the philosophy of keeping it
simple for the conservator, the application was designed
similar to other online financial applications. Short video
tutorials walk the conservator step by step through processes.
MMC is not just an application to report annual accountings to
the court but provides a financial management tool to the
conservator.
One of the greatest benefits of MMC is the red flag logic,
and as part of the Conservator Accountability Project with the
National Center for State Courts, the National Center has
analyzed 1 year of audit data and developed ten empirically
based risk indicators. We are currently testing those risk
indicators.
Numerous jurisdictions have shown interest in the Minnesota
model and obtaining the Minnesota source code. To date, we have
shared our source code with six States and the National Center
for State Courts. Other jurisdictions are doing good things in
tackling this problem. I believe that sharing our best
practices is the most effective way to combat financial abuse
of the vulnerable under court jurisdiction.
The Chairman. Thank you very much, Ms. Boyko.
STATEMENT OF JAYE L. MARTIN, EXECUTIVE DIRECTOR, LEGAL SERVICES
FOR THE ELDERLY, AUGUSTA, MAINE
Ms. Martin. Chairman Collins, Ranking Member McCaskill, and
members of the Committee, I am Jaye Martin, executive director
of Legal Services for the Elderly in Maine. I am honored to be
here today and grateful for the Committee's focus on abuse by
guardians and others in a position of trust.
LSE is a private, nonprofit organization that was formed in
1974 when legal services were first added to the list of
potential funded services under the Older Americans Act. LSE
provides services to seniors when their basic human needs are
at stake.
We have a four-decade-long history of representing victims
of elder abuse in an effort to restore safety and recover
assets through civil litigation. In the past 12 months, LSE
assisted 260 victims of elder abuse. This is up 24 percent from
the prior year, and yet we estimate we are serving about 1
percent of Maine's total victims.
Elder abuse is a pervasive problem. One in 10 people age 60
and older who live at home will experience abuse, neglect, or
exploitation. This means as many as 5 million seniors are
abused each year. Studies show only 1 in 24 cases are ever
reported to authorities.
At LSE, 48 percent of the elder abuse cases we handle
involve financial exploitation, and 75 percent of those involve
family members as the perpetrators.
I want to share a typical LSE case with you that involved
financial exploitation. LSE's cases generally involve the abuse
of a power of attorney, but the situations we see directly
parallel the abuse by guardians and conservators.
An 82-year-old veteran had suffered two strokes and was
confined to a wheelchair and homebound. After his wife passed
away, he bought a mobile home, and his daughter moved in with
him. He also named his daughter agent under a power of attorney
and added her to the title of his home and his bank accounts.
The daughter isolated her father and took complete control over
his money. When he finally sought help from LSE, he believed he
had $20,000 in his bank accounts, but $15 remained. Bank
records revealed that his daughter had taken the money for her
personal use, opened and charged thousands on credit cards
taken in his name, and purchased a new car using the power of
attorney to add him as the co-signer. The money was long gone,
but LSE was able to evict the daughter from the home, recover
the home, and clear his credit history.
We have seen thousands of cases like this over the years.
They are too common, and as the Chairman mentioned, just
recently in the newspaper in Maine, there was a particularly
horrific tale of a 90-year-old woman from California, abandoned
in a cabin in Maine after she was robbed of $1 million in life
insurance and real estate proceeds.
In States like Maine, where the rate of homeownership among
seniors is high and the only valuable assets that many seniors
have is their home, the theft of a senior's home is an all-too-
common form of exploitation. Here is one typical theft-of-home
case that ended up in the Law Court, Maine's highest court:
Frederick and Patricia were exploited by their son, John,
after Frederick became terminally ill. One month after his
father's diagnosis, John insisted that his mother go with him
to a title company and transfer the home to him to protect it
from MaineCare--Maine's Medicaid program. She was exhausted
from taking care of her husband and needed her son's help. She
did what she was told.
Soon after, John padlocked several rooms in the house,
alleging his mother was selling off his father's property. When
Frederick died, it came to light that John had obtained a power
of attorney from his father and used the power of attorney to
transfer all the money from his father's account to a new joint
account. As soon as his father died, he withdrew all the funds.
In summary, most financial exploitation of seniors involves
a family member or person in position of trust, and it is very
common for the perpetrator to have obtained some form of legal
authority. That authority is then abused as the agent proceeds
to steal from the senior.
As today's GAO report notes, we are essentially blind to
the scope of this problem due to a lack of data. This is
leaving guardians and agents free to act with impunity.
Federal leadership and investment are needed. It is time to
launch a Federal-State partnership to improve data collection
and monitoring of guardians. There is no doubt that rampant
abuse is going to come to light. That means dedicated resources
will also be needed to ensure that States are able to respond
effectively when suspected abuse is identified, and resources
will also be needed to ensure that all elderly victims have the
help of an attorney to restore their safety and recover their
stolen assets.
Thank you for inviting me to speak with you today.
The Chairman. Thank you very much for your compelling
testimony.
Ms. Kruse.
STATEMENT OF JESSICA KRUSE, ATTORNEY,
OZARKS ELDER LAW, SPRINGFIELD, MISSOURI
Ms. Kruse. Chairman Collins, Ranking Member McCaskill, and
other distinguished Committee members, thank you for the
opportunity to provide testimony on this important issue. Today
I will simply highlight certain areas within my written report
that I think will be important for you to take away from this
hearing.
First, physical and financial elderly abuse occurs by those
who have legal authority, like those under a durable power of
attorney or guardianship, and by those two legal authority,
like a family member or caregiver exerting undue influence over
a vulnerable person. It is likely elder abuse is highly
underreported in all of these areas. In my experience, there is
far more elder abuse that occurs outside the realm of
guardianship. Examples of these situations include an example
of a daughter taking her elderly Mom who has memory problems to
the bank and convincing her Mom to put her name on the account
as the sole beneficiary, leaving out siblings who were already
named in an eState plan the Mom had carefully laid out; or a
niece who prints off a durable power of attorney from the
Internet and takes it to her aunt in a nursing home, telling
her if she does not sign that durable power of attorney, they
will kick her out of the nursing home, and then proceeding to
use the document to put her name on all the assets.
Unfortunately, these cases happen far too often and are caught
too late.
Although statistics in this area vary, the evidence is
showing that a fairly high percentage of elder abuse occurs by
family members, whether they have legal authority or not. These
statistics are consistent with my experience in my practice.
Oftentimes guardianship actions can be used as a tool to combat
against elder abuse when it is occurring under the radar by a
person acting under a durable power of attorney or by a family
member, caretaker, or friend.
The important thing to remember about our guardianship
system is that it is a State law-driven system. However, the
Federal Government does have an interest to ensure that
fundamental constitutional rights are adjudicated in a manner
that is fair and only under necessary circumstances.
Another important thing to keep in mind is in every
guardianship case, there are a unique set of conditions that
make each case very different from one another. These
conditions include things such as medical conditions that
contribute to an alleged incapacity that vary from case to
case; individuals who are alleged to be incapacitated that have
very different wishes for how he or she wanted to carry out
their life; and then there are very different situations
involving the family and support system dynamic for each
person.
In addition to this, each State has its own statutory
system for guardianships that are carried out inconsistently
within each county and each State. These are just a few of the
factors that contribute to the complexity of creating solutions
to combat elder abuse specifically within guardianship cases.
I want to take a minute to highlight he positive things
being done to correct some of the problems on a State level.
These issues are not being ignored. Organizations like the
National Academy of Elder Law Attorneys, the National
Guardianship Association, the National Guardianship Network,
the Uniform Law Commission, and the American Bar Association
have been working for several years to address some of the
deficiencies at the State level. These organizations are
collaborating with groups outside the legal field to come up
with comprehensive solutions.
In my experience, one focus area for improvement is court
monitoring of an appointed guardian or conservator. In
Missouri, we refer to individuals who are in charge of a
person's personal decisions as ``the guardian'' and the person
in charge of the money as ``the conservator.'' Unfortunately,
resources for this monitoring is lacking, especially in rural
areas. In these areas, judges are often handling a variety of
cases ranging from debt collection to custody modification to
guardianships. It is very difficult for these judges and their
clerks to keep tabs on each guardian and conservator within
their jurisdiction. In these same courts, those involved as
parties in the guardianship action also have very limited
resources. It is not uncommon for me to come across individuals
who may own a home that is only worth $40,000, have a bank
account that is under $5,000, and monthly income reaching
$1,200 a month. Those are individuals that cannot pay an
attorney or anyone else to monitor the person who is in charge
of their assets. Funding for monitoring programs is one area
where the Federal Government can assist and reduce financial
abuse occurring within guardianship cases.
I want to end by creating a sense of urgency. On a daily
basis, I am seeing individuals walk into my office who do not
have any traditional support systems, family or otherwise.
These are widows or widowers who never remarry, individuals who
do not have living children or who are estranged from their
children or other family, individuals living States away from
any other relatives. I encourage you to think about your own
families for 1 minute, think about your aunts and your uncles,
cousins, or siblings who may be in this position. Who will be
there to step in and help them if they have a health event that
takes away their capacity? Who will be interacting with them on
a daily basis to make sure their needs are met? Can you ensure
those individuals have good intentions? I guarantee potential
abusers are watching and they are waiting. There is a Federal
interest here, and it must begin with public awareness of this
problem so that potential abusers know someone will be watching
them.
Thank you.
The Chairman. Thank you very much.
Ms. Martin, you testified that Legal Services for the
Elderly in Maine has seen a 24-percent increase in elder abuse
cases over the last year. You also have told us that oftentimes
seniors who fall victim to financial exploitation are exploited
or abused by members of their own family, such as the case you
described, which is particularly tragic.
I have two questions for you. First, do you know why you
are seeing such a big increase, 24 percent in 1 year? Second,
in your years of experience, what have you learned about what
motivates family members to commit such acts against people
they should love and care for and protect during their
vulnerable years? Is it just greed?
Ms. Martin. In large part. There are other drivers as well,
though, although greed is a significant one. We talk about it
in our office, about accelerating the inheritance, and that is
really what people think they are doing when they are being
kind to themselves in their own minds.
In addition to that, we see families where family members
have drug-related problems, and that is driving the issue. We
see gambling-related problems, and that is driving the issue,
and we also see significant debt issues in the generation
following this one that was one that saved and paid their bills
on time and is being followed by a generation with considerable
debt, so all of those are drivers.
As to that increase, which is remarkable, we can point to
at least two factors. One is just the increasing elderly
population in Maine. With the oldest median age in the Nation,
our older population is growing rapidly, and so that is part of
it, but the other thing that has gone on in Maine is that we
have been conducting an extensive public awareness campaign
trying to raise awareness of financial exploitation. We have
had the good fortune of being able to do that with the support
of the John T. Gorman Foundation, and we think that has made a
real difference and that public awareness efforts can make a
real difference.
The Chairman. People are more willing to come forward, or
their relatives or friends, and that actually brings me to a
bill that Senator McCaskill and I have introduced, which is the
Senior$afe bill, and the first example that I outlined in my
statement, it was a bank teller who was alert enough to notice
these unusual withdrawals by the attorney from his clients'
accounts and reported it to the appropriate authorities.
Has the law worked well in Maine, in your judgment? Is this
something that we should be extending nationwide?
Ms. Martin. It has been an extraordinary success, and we
were thrilled to see your leadership in taking the concept to
the Nation. Our Office of Securities, Judy Shaw, has been
instrumental in leading the Senior$afe effort in our State, and
hundreds of financial institution managers and employees have
been trained, and we are really seeing that increase the number
of seniors that are getting help before it is too late.
The Chairman. Thank you. I am going to need you to talk to
one member of the Senate who is holding up the bill from
passing. It would make such a difference.
Ms. Boyko, I just have time for one question for you. As
Minnesota is scoring the results of the audit--and I am so
impressed with the system that you have devised--I am told that
12 percent of the guardianships that your program has examined
have been placed in Level 4, which is the level that indicates
that either removal of the guardian is warranted or repayment
of the funds to the protected person's eState, so when you
identified--it is troubling, first of all, that there is that
many when they know they are being watched. Think if they were
not being watched, but what happens then? That is my question.
Ms. Boyko. After we identify the issues in the audit, it is
put on for a hearing in front of the judge, and the judge
addresses the issues in the audit and identifies whether they
need to be removed. Oftentimes a successor conservator is
appointed to take over. A judgment may be issued by the court
for repayment of those funds, or the successor conservator may
surcharge the surety bond that is in place to make sure that
the protected person becomes whole on the issues.
The Chairman. Thank you.
Senator McCaskill?
Senator McCaskill. I will start with Mrs. Kruse. Tell me
how many cases that you have been involved in or you are aware
of have criminal charges been filed in Missouri, based on your
time working in this area.
Ms. Kruse. I cannot tell you an exact number, but I will
tell you it is a small percentage, and the resources that
prosecutors' offices have in our area are focused primarily, in
my experience and in my observation, on drug-related issues or
on public safety issues, and the States that have higher levels
of prosecution of these type of cases have very specialized
elder abuse units within the prosecutor's office. These are
hard cases to prove, and I know with your prosecuting
background you can maybe related to some of that, but we have a
situation--it is a situation very similar to the domestic
violence cases and child abuses cases where we have a victim
who cannot always testify and speak out on their behalf, or
they do not want to testify or speak out on their behalf
because they are afraid, you know, they are not going to have
somebody to drive them to the doctor anymore or care for them
on a daily basis, and so these are difficult cases, but the
prosecution rate is very low in Missouri, in my experience.
Senator McCaskill. I know when I was the prosecutor in
Kansas City, we had a working relationship with the public
administrator, and we had someone on our staff. Now, we had a
large office, but we had somebody on our staff that was
designated to take information from the public administrator
for cases similar to this, but they are many times
circumstantial cases, and hard, because the witness--if the
witness were going to be a really good witness, they would not
have ever been in the position to get taken advantage of in the
first place, so it is one of those inherent problems with these
kinds of cases, which means prevention becomes even more
important.
Let me ask this to you about the law in Missouri and if
you--I do not know what the law is nationally on this, but what
ability--we are trying to do Senior$afe Act so that financial
institutions can report factual patterns that would be
troubling, that maybe somebody might be taking advantage of a
senior financially. What about doctors? What about the
designation of somebody as incapacitated? At the point in time
an Alzheimer's diagnosis is made or at the point in time severe
dementia is identified by a doctor, is there any way that
doctor can contact the court? Because, obviously, that is the
most fertile ground once that diagnosis has occurred.
Ms. Kruse. I think doctors feel very limited in their
ability to do that given HIPAA regulations and whether or not
they are willing to disclose that health information. I do not
know of any specific reporting requirements that a doctor's
office has for that type of abuse. I know that it can be
difficult for a doctor say that this patient is incapacitated.
I think that it--and to determine whether somebody is
incapacitated differs doctor to doctor, and I think they a lot
of times rely on family members talking to them. The amount of
time that a doctor spends with a patient in the doctor's office
is becoming less and less, and so they do not always have time
to gather a lot of information from their patient sitting
across from them, and so they are working with--it is easier
for them, and they are working with adult children oftentimes
who have an ability to talk quicker, process information
quicker sometimes, and they are taking a lot of information
from them, and so I do not see a lot of direct reporting from
doctor's offices. I think you are exactly right. That is
certainly fertile ground and a lot of times where that abuse
first shows up, and I----
Senator McCaskill. We would be subpoenaing the doctor's
records after the fact to prove the incapacity, because that
would be an important element of the case.
Ms. Kruse. Yes.
Senator McCaskill. If you have to subpoena the records
afterwards to find out, wouldn't it be great if we could figure
out some way that that information could prevent this kind of
heartbreak and this kind of abuse?
Let me ask you, finally, Ms. Larin, I noticed in a footnote
in the GAO audit that the representative payee programs, the
Social Security Administration and VA have an enormous amount
of data on--because many times in your written testimony you
talked about where there would be a fight in court as to who
was going to get the conservatorship or the guardianship, and
whoever lost would immediately run down the street and become
the payee on the Social Security or become the payee on the VA
benefits, and when Social Security finds out that there is a
fraud, they are not sharing that information with State courts,
even though they share that information without other Federal
agencies. Can you explain what their rationale is? If they have
caught someone ripping someone off, what in the good Lord's
name are they doing keeping that information from State
authorities to prevent further tragedy around this person's
life?
Ms. Larin. You know, it is a good question. This is
something that we looked at several years ago, and we found
that representative payees or guardians could get away with
chronically taking advantage of older individuals because of
this lack of information sharing. Even if someone was
disqualified from being a representative payee for a Federal
program, as you said, that information was not shared with the
State court system, and they would not have that information.
Senator McCaskill. They could be continuing as a guardian
after they have been disqualified as a representative payee due
to misconduct.
Ms. Larin. Now, GAO made a recommendation to the agencies
that they share this information, that they----
Senator McCaskill. They have not done it.
Ms. Larin [continuing]. share information with each other
and with the State court system, and they disagreed with that
recommendation citing privacy concerns. We continue to believe
that that is something that should be done.
Senator McCaskill. Privacy concerns? The person has a
guardian. I mean, they are the ones that are the victim here.
It just drive me--this drives me crazy, so this--if I were
staying, this would be at the top of our list. I am going to
turn to----
I am going to turn to Senator Casey and say you guys need
to put this at the top of your list to get the Social Security
Administration and the Veterans Administration to share
information with State authorities, and with that, I drop the
mic and I am out.
The Chairman. Senator Tillis.
Senator Tillis. Well, that is a great segue, because I hope
to continue to help. I am kind of new to this Committee. I am
only 2 years into it, but Madam Chair, I guess it is
inappropriate for me to ask who the one Senator is that is
holding up the Senior$afe Act, but we need to get to that
person and talk some sense into him. One member's opinion.
I want to get to the veterans issue. I serve on Veterans'
Affairs. I come from North Carolina. Ten percent of our
population of 10 million are veterans. I would like to find out
what more maybe we can do in Veterans' Affairs where some of
the benefits that may be being exploited are coming from the
VA, what more we may be able to do to push the issue of
information sharing or other initiatives, and I will open that
question up to anyone. It sounds like there have been some
recommendations to the agencies, but other ideas that you may
have, and we can start with Ms. Larin.
Ms. Larin. The Veterans Administration does have oversight
authority over the representative payees that it puts in place
for VA beneficiaries, so there is an oversight mechanism there.
It just--it is limited to VA benefits, and you know----
Senator Tillis. I would like to find out more, though, if
there is more that we can do. I think that in my case, also, I
come from a State that has one of the most rapidly growing aged
populations, and many of them by extension are going to be aged
veterans, but I am looking at both populations, so we can
follow-up if there is any other recommendations with your
office.
Ms. Larin. Yes.
Senator Tillis. Ms. Boyko, if you all want to give me other
suggestions on the VA piece, I would appreciate it, but in your
testimony and in Ms. Kruse's testimony, I thought I heard two
different approaches to try and address a similar problem. In
your case, through the CAAP program and through accounting, you
found some 12 percent of people who have appeared to have
engaged in some inappropriate practices. Probably some could be
explained, others cannot, but you seem to be doing that as
after someone is designated, you are going through a general
accounting of the programs, you are finding the bad actors, you
are leaving the good actors alone, the 88 percent, and you are
not weighting them down with having to deal with any sort of
accountability so that they can perform their and maybe reduce
the cost of their service to their client.
Ms. Kruse, it sounded like to me that you were suggesting
more of a court monitoring approach, and the question that I
had about that, if one of the roles we can play in the Federal
Government for a lot of these things that are State-run
programs is to make sure that we are sharing best practices,
the best way to go about getting the bad actors and leaving the
good actors alone to provide good services, so why would maybe
additional funding for a court monitoring program be an
appropriate role for the Federal Government versus funding
grants for best practices that may be around an accounting-
oriented role that seems to be in place elsewhere? I just want
your feedback on that, either one of you.
Ms. Kruse. I do not necessarily think our testimony is
contradictory to one another. I think we are really saying the
same thing; it is just how does the court go about monitoring,
so I think if the Federal Government could provide grants for
software similar to what we heard about before that is
happening right now in Minnesota, I think that would be
consistent with what my testimony is today.
Senator Tillis. That is what I am really getting at,
because this sounds like--I do not know if it is a best
practice or a better practice relative to the peer States, but
I think one thing that we can do is provide a kind of
clearinghouse and hopefully intellectual property sharing
mechanisms so that you do not reinvent the wheel.
I came from the accounting profession. There is probably a
pretty consistent way you can take the things that were in the
shoe box and account for them and perform an audit, so I would
like for us to discuss possible recommendations about how we
can help play that role and then within the Committee's
jurisdiction to promote programs that would do that. It sounds
like some good work is going on.
Ms. Boyko, I did not give you a chance to respond.
Ms. Boyko. Thank you. First of all, I would like to address
the VA issue. I think it is very important that States work
with the Social Security Administration and VA, and we have in
the CAAP program in Minnesota established relationships within
our State and within our jurisdiction with those two entities,
and it has been extremely helpful, and we have had some
successful prosecutions as a result of that, but I think more
better laws from the Federal level to those entities to allow
them to share information with the courts is very important.
Senator Tillis. Absolutely, and I get the whole point about
the difficult situation you may put a health care provider in
to get the information that I agree with Senator McCaskill
would be great to get, but there may be others--just like the
SAFE Act with banking institutions, there may be other people
who are touching--there could be other Government agencies. You
know, there may be some way to go into county title agencies
and be able to identify a flag that is within safety parameters
to say it is odd that somebody who is 80 years old is
transferring their title to someone else who may be 25 years
old. Does that potentially set off a trigger that allows
someone to confirm whether or not that is an appropriate action
or not? So we need to think that if there are limits that would
be a legitimate reason why we cannot implement it one way, let
us look at other ways that we could as a Federal body incent
local agencies to provide the information, maybe we provide
some infrastructure for a clearinghouse and information
sharing, so thank you all for your testimony and your great
work.
Ms. Martin, I certainly hope that the two people that were
involved in the cases that you listed have served time or have
absolutely been shunned in their communities because they are a
disgrace.
The Chairman. Thank you very much.
Ms. Martin, did you want to respond to that briefly?
Ms. Martin. You would be disappointed with the result in
most circumstances, but in Maine, great strides are being made
to change that, and a FAST team, financial abuse specialist
team, has been developed by our Adult Protective Services, and
I think we are moving things in the right direction.
Senator Tillis. I was almost certain of that, which is why
I think we need to figure out if there are aggravating factors
or other things that we can put into the prosecutors' playbook
to make this something that there is a real consequence,
because most of the time there is nothing more than the long
time that you have to do to restore their creditworthiness and
to maybe get their homes back, and the other person just walks
away having very little accountability, and I think that is
wrong. These people are despicable.
The Chairman. Thank you.
Senator Kaine, welcome back.
Senator Kaine. Thank you. Thank you, Madam Chair, and
thanks to the witnesses. It is a very important hearing, and I
am proud cosponsor of the Senior$afe Act. I am thrilled with
the leadership of our Chair and Ranking in pushing this.
On the family dynamic, a couple of you talked about the
majority, one of you--I think it was Ms. Martin--said three-
quarters of the cases in your experience, the abuse in this
kind of a situation is financial abuses by a family member. For
those of you who did not talk about that, is that generally the
case? Do you see this more predominantly as family members than
people who are unconnected as we are talking about this kind of
financial abuse?
Ms. Boyko. We do not have statistics specific to that, but,
yes, in general, I would say the majority are family members.
Senator Kaine. I think Ms. Kruse said the same thing. Ms.
Larin, is that your experience as well?
Ms. Larin. Again, there is not data. There are three types
of guardians: there are family guardians, there are
professional guardians, and then there are public guardians for
people who cannot afford to pay their one.
Senator Kaine. Right.
Ms. Larin. The majority of guardians I believe are family
guardians, but we do not have any statistics on abuse.
Senator Kaine. On the family side, that has got to make the
enforcement issues different, too, than if you are going after
a professional or an appointed guardian, because it is often a
family member doing something, and then there are other family
members who were not aware of it, so talk a little bit about
the enforcement challenges. If this is heavily a family member,
heavily involvement by family members in this kind of
defrauding of a senior, what are the enforcement challenges in
going after family members?
Ms. Martin. Well, I will pick up on that and then let
others respond as well, but it really follows the thread from
the earlier question, which is that there can be a view that
this is a family matter and, therefore, is not----
Senator Kaine. Probably less likely for a prosecutor to
want to take it up.
Ms. Martin. Right, right, and when you look at it through
that prism, whether it is law enforcement or criminal justice,
you just walk away from the case. Now, that is part of the
reason civil legal remedies are so important because we are
going to look at a case and figure out if we can get somebody's
money back or home back or make them safe, and so while I agree
that criminal prosecution needs to be improved, I also do not
think it is actually a substitute for somebody having a lawyer
on the civil side.
Senator Kaine. I was intrigued with the discussion about
the Minnesota program. I want to make sure I understand this,
so if there is a court-ordered guardianship or, in your case,
conservatorship, then this audit requirement kicks in. You were
hired to form the CAAP program. Is that audit--there is a
required accounting document that everybody has to file if
there is a court-ordered conservatorship or guardianship. Does
everyone get audited, or do you, you know, audit the third of
the accounts and you do not know whether you are going to be
audited or not? Because that is a strategy for dealing with the
cost issue of audits that some jurisdictions use. We will
always do an audit of at least a third; you do not know whether
you are going to be audited or not, but knowing that you are
going to potentially be looked at can have a positive outcome.
I am curious about that.
Ms. Boyko. We tell all our conservators they will be
audited, and we try and audit all first accountings that are
filed, and then we audit periodically after that.
Senator Kaine. OK.
Ms. Boyko. Judges and court staff can also refer
accountings for audit at any time.
Senator Kaine. If they feel that there is something odd
about it, yes.
Ms. Boyko. Yes, if there is something odd, they can
definitely refer it to us.
Senator Kaine. Now, this audit program, though, is for the
conservatorships or guardianships that have been ordered by
courts, and so if we get into powers of attorney or things like
that that are done that do not have to be filed in court, there
really is not any oversight of what might be happening.
From your own experiences in this area, you know, what kind
of abuse do you think happens in these scenarios, like a power
of attorney, it is a legal document, but that no court has
supervision over or necessarily needs to examine?
Ms. Kruse. I see that type of abuse far more often than I
see abuse within guardianship cases, and I think it is because
durable powers of attorney are so easy to print off the
Internet. People know just enough to know what they need to
search for in the Google bar, and then they print it out, and
they stick it in front of people, and they do not really
explain what it is. On a durable power of attorney, it is
required to be notarized, but if the banks and the institutions
that are usually notarizing these documents that are printed
off the Internet do not really know what to look for, you have
a capable person who is walking into the bank that is
requesting to have their signature notarized, they are going to
notarize it without many questions asked.
I think there are some protections that have been built in,
but sometimes those protections are not always effective. I
think it is a lot of what we were hearing earlier, people
justifying in their minds that, you know, ``I am going to
inherit it anyway, so why not take it not?'' Or, ``I am the
only one that is sitting here caring for Mom, so I deserve a
little bit more than my brother that lives out of State.''
When it comes to catching those things, it usually happens
by other family members looking in on the situation thinking
something is a little bit off, or neighbors, and then it is a
civil action after the fact to try and correct for that. In
Missouri, we have an accounting that can be filed requesting
that fiduciary to account for the things that they have done
while they were acting as an agent under those documents, but
it oftentimes catches things too late.
Senator Kaine. That is just, I think, a tribute of another
point that many of you made, which is we think this is
dramatically underreported, so even a really good CAAP program
for guardianships and conservatives would not pick up power of
attorney abuses. This is the kind of thing that is really
underreported. The scope of this is very big.
Thank you, Madam Chair.
The Chairman. Thank you.
Senator Casey, soon to be the Ranking Member on this
Committee, welcome.
Senator Casey. Madam Chair, thank you very much, and I know
I was not here when you welcomed me into that new position, so
in Washington, you really get complimented or referred to when
you are not here.
It usually only happens when you are present, so that is
pretty rare, so thank you for that, and thank you for your
leadership of this Committee.
I want to say in this town, where often we have an
abundance of discord and rancor and partisanship, I want to
commend both Senator Collins and Senator McCaskill for the way
they have run this Committee in the last 2 years and on the
working relationship they had, and I pledge to continue that.
To Senator McCaskill, I have big shoes to fill now. She
brought the zeal and intensity of a prosecutor and the passion
and the heart of an advocate to the work that she did on this
Committee, and I am not a bit surprised, but she set the bar
high for fellow Democrats, so I am going to be trying to
measure up to that, and if I do not measure up, I am sure
someone out there will tell me, but we will try our best.
I wanted to start with the question of the limitations in
terms of what the Federal Government can do to better protect
seniors and especially in the context of guardianships, but in
the GAO report, I know that on page 15 it says, ``While the
Federal Government does not regulate or directly support
guardianship, Federal agencies such as HHS may provide indirect
support to State guardianship programs by providing funding''--
I think that is an important word to focus on--``for efforts to
both share best practices, No. 1, and, No. 2, facilitate
improved coordination.'' That is a pretty good summary, and I
appreciate that.
I wanted, for the panel, to open it up. If you--I do not
want to say ``have a magic wand'' because they do not exist in
Washington or even in the States, but if you had the
opportunity to enact one measure or hope that we would either
enact or better implement existing policy, what would it be in
terms of the Federal role that can be played, albeit limited?
And then maybe the second question would be: In addition to
your own States, what States do you think have a set of best
practices or programs that you would like every State to
imitate or replicate? Maybe we can start left to right--or
maybe I will just start on the right because--speaking from the
perspective of a State, the great State of Missouri.
Ms. Kruse. The great State of Missouri. If I had a magic
wand, I would say Federal funding for systems similar to what
Minnesota has in place would be incredibly helpful, especially
to the rural counties in southwest Missouri, because as I
mentioned in my testimony earlier, these are counties that have
very low resources and the judges just simply do not have time.
I mentioned in my written report that I had submitted that
there was a guardianship case that I have seen--guardianship
and conservatorship case that I have seen recently where there
had not been an accounting filed in 3 years, and the court did
not file any citations. In Missouri, you are supposed to file
them annually. By the time I got a hold of the case, there had
been--they just simply did not know what they were doing. They
had gotten bad advice when they initially took on the
conservatorship case, and then they were just basically doing
what they wanted with the funds, and it was, quite frankly, a
mess.
These are situations where the court just simply did not
have enough resources to make sure they were doing what they
needed to do in a program like that is in Minnesota right now
would have been very helpful in that situation.
Senator Casey. Just one quick follow-up, so the funding
can--one of the variables is just geography or the region you
are in. Is that----
Ms. Kruse. Yes. As far as the resources? Yes, yes.
Senator Casey. That is helpful. Thank you. I am impressed
that you referred to another State, too. That does not----
Ms. Kruse. To answer your second question, actually, let me
just briefly--I know that Texas is also implementing a
statewide audit of their guardianship cases.
Senator Casey. Okay.
Ms. Kruse. I have recently talked with an attorney in Texas
that has been a leading figure in that audit process, and they
had initially audited just a few counties and then requested
additional funding to audit the remaining counties, and I think
that they are literally going file by file through the
guardianship cases that are currently in effect right now,
making sure that things are being done correctly; in addition
to that, making sure that people are under a guardianship that
really need to be under a guardianship. Sometimes guardianships
can be terminated after a certain point, and so when they are
going back and looking into the files, those things are being
caught as well.
Senator Casey. I appreciate that. Thank you.
Ms. Martin?
Ms. Martin. Well, I may be able to make things a little
easier because I can say I would support every single thing
that my colleague to my left and your right said, and the one
thing I would point out that may not be clear to everyone is
that in many circumstances--and I will take Maine as an
example. Again, we have a county-based probate system. We do
have regular reporting requirements that apply to conservators
but not to guardians, and so there were some observations made
earlier that perhaps all States need is access to a
clearinghouse where they get the great work of Minnesota and
can apply it. Well, we need a data collection system. We need
help first with getting the filings done and the information
into a data base that could even then be mined.
I think that is important to keep in mind, that that is
part of what many, many States do not have right now, and this
would be a chance to make an exponential leap forward. We may
have no reporting, we may have no system, but we could create a
system that is parallel across the States so we could also
learn something about what is happening in the country if we
rolled out something that could be useful across every one.
Senator Casey. Ms. Boyko?
Ms. Boyko. Thank you. I do not think there is one specific
answer to answer all of it. I think it is a multipronged
approach with multiple different necessary changes to take
place, such as the Senior$afe Act, such as auditing
conservatorship accounts, looking at more controls over power
of attorneys. I think there are a lot of things that we need to
do, and I think there are a lot of States that are doing
things. We have shared our source code with six other States.
It is available to give to anybody for free. I do not think it
is the be-all and the end-all answer, but it is a start, and
any other State that takes it on, I am really happy because
they will improve it, and then we will get a better system out
of it.
I think all of us need to work together, and I think in
order to work together, agencies like the National Center for
State Courts can help be that clearinghouse and can help us all
work together and share those resources so we are not
reinventing the wheel and we are not out there all alone.
Senator Casey. Thank you. I am out of time, but I want to
thank all of you for your great work. This is important. Thank
you.
The Chairman. Thank you.
Senator Warren?
Senator Warren. Thank you, and thank you very much again,
Madam Chair, for holding this hearing and for our Ranking
Member. It is a very important topic, and I appreciate your
doing this.
I want to ask just a little bit more about monitoring
guardians and how this is done, so when the State court
appoints someone as a guardian to make decisions on behalf of
someone who is no longer able to make decisions for themselves,
guardians obviously--most of them do a good job, but some abuse
this responsibility and exploit vulnerable seniors, so when the
exploitation of a senior is suspected, the burden of
investigating the case falls on the States for legal action
here.
Ms. Martin, as the executive director of Legal Services for
the Elderly in Maine, you see the effects of senior financial
abuse every day. I took a look at your testimony, and I see
that you emphasized the importance of State Adult Protective
Services agencies in preventing senior financial abuse. Could
you say just a bit more about why these agencies play such an
important role in preventing this abuse?
Ms. Martin. Well, in our experience, Adult Protective
Services is there for individuals for whom there may be no one
else to respond, no one else to investigate, no one else to
ensure safety or take action to ensure safety, and our
statewide help line gets hundreds if not thousands of calls
every year that we actually refer on to Adult Protective
Services. They are calls from concerned neighbors and family
members and individuals in the community worried about seniors,
and that is where we are sending those calls.
Senator Warren. Do State Adult Protective Services agencies
have adequate funding to tackle the scale of the senior abuse
problem that you see?
Ms. Martin. No. There is not adequate resources there. My
hat goes off to my colleagues in Adult Protective Services.
They do tremendous work, but they do not have adequate
resources. Our Adult Protective Services in Maine saw a 29-
percent increase in calls related to vulnerable seniors from
2010 to 2014, so that is a tremendous increase.
If we did some of the things we are talking about today in
this room which we need to do, you can imagine how those
numbers would go up even further.
Senator Warren. Right, so I appreciate this. You know, as
you know, the Social Security Act of 1974 gave the States the
authority to use Federal funds for Adult Protective Services to
protect vulnerable seniors from financial exploitation, and for
decades this funding, which has been administered by the U.S.
Department of Health and Human Services through the social
services block grant has been used to protect seniors from
financial exploitation.
As you testified--and I assume everyone would pretty much
agree with this--the States do not have enough money to do the
critical job that they are called on to do, but rather than
focus on ways to strengthen State fights against financial
exploitation of seniors, just this year Paul Ryan, the Speaker
of the House, has proposed to entirely eliminate this funding
from the 2017 budget plan, and Representative Kevin Brady, the
Republican Chairman of the House Ways and Means Committee, has
introduced a bill actually in the House of Representatives to
do exactly that, and it got substantial support. Every
Republican and four Democrats voted to support that bill and
move it forward, and this bill is called the ``Reducing
Duplicative and Ineffective Federal Funding Act.''
Ms. Martin, let me ask you, do you believe that the social
services block grant funding for Adult Protective Services who
fight senior financial abuse is duplicative and ineffective?
Ms. Martin. Well, to my knowledge, it is not duplicative,
and I certainly can tell you that their work is extraordinarily
effective and valuable and essential in our communities.
Senator Warren. Well, I appreciate that. Thank you, Ms.
Martin. You know, I do not think that this funding is
duplicative or ineffective either. I kind of think the bill
should be renamed the ``Reducing Critically Important and
Already Inadequate Federal Funding Act.''
It seems pretty clear to me that if Congress is serious
about preventing senior financial abuse, then we should be
increasing the funding for Adult Protective Services agencies,
not talking about eliminating it. You know, we beat this bill
back the first time it was proposed, but all the signs indicate
that the House may try again to cut this important program, and
I think that trying to destroy Adult Protective Services by
taking away Federal funding is absolutely the wrong way to go,
and if that is where Speaker Ryan wants to go, he should
explain that to the American people.
I just want to say I appreciate the work that all of you
do. I know that this is very difficult work done under very
difficult circumstances, but it makes such a human difference
to the people that you touch every day, so thank you for all
that you do.
Thank you, Madam Chairman.
The Chairman. Senator Blumenthal.
Senator Blumenthal. Thank you, Madam Chair, and thank you
for having this hearing. I feel like I have been at this
hearing before a number of times, and that may well be because
I am a member of the Judiciary Committee, and actually the
Judiciary Committee almost unanimously reported out a bill
called the ``Elder Abuse Prevention and Prosecution Act.'' I
led it with Senator Grassley, the Chairman of the Judiciary
Committee, and it is obviously a bipartisan bill. This is an
issue that cuts across committee jurisdictions in the U.S.
Senate, which is just one reflection of how broad an issue and
a problem it is in this country.
I also introduced a measure called the ``Robert Matava
Elder Abuse Protection Act,'' which is named after a
Connecticut World War II veteran, a member of the Greatest
Generation, Robert Matava, Purple Heart recipient and survivor
of the Battle of Iwo Jima, who was literally defrauded by his
son. When he left to go to Florida, the son took over the
business, took over his house, and then refused to let him come
back, so some of this stuff is really blatant and criminal, and
I know that none of you, at least so far as I know, is a
prosecutor, a criminal prosecutor, but let me just ask all of
you how diligent and responsible you think prosecutors are in
enforcing the criminal law against these crimes, because, after
all, we are calling it ``elder abuse,'' but that is a nice way
of saying they have defrauded, stolen, criminally abused people
who are among the most vulnerable, and maybe because of the
embarrassment and stigma involved or their age, decline to
report it to criminal authorities, so how diligent have the
prosecutors been? What more can be done to encourage reporting?
Ms. Martin. Well, I can speak just to the situation in
Maine, but I think we know there is real room for improvement,
but there are really some rays of hope on the horizon. Our
Attorney General convened a task force to look at what those
barriers were to prosecution. A number of recommendations were
made. Most of those have been implemented, including the
formation of a financial abuse specialist team through our
Adult Protective Services DHHS offices and leadership there,
and I think there is great commitment to increasing the rate of
prosecution and to make sure that people are held accountable
for these actions that, as you say, are criminal actions.
Senator Blumenthal. Any other observations?
Ms. Kruse. Just briefly, I see the most success in States
where they have specialized elder abuse prosecution units, and
I referred to that a little bit earlier, and I think you were
alluding to that as well, but the evidence in these cases can
be very difficult to comb through. The financial aspect of this
can be very complex, and it takes a lot of time, and it takes a
lot of resources to comb through this.
In addition, there needs to be proper training in the
prosecutor's office regarding the family dynamics that you are
going to see in some of these cases, and so I think having
these specialized units will provide the most effective
prosecution in these type of cases.
Senator Blumenthal. Because it not only provides a
mechanism or vehicle, a team, to go after these cases, but also
reflects a priority that is going to be given to it, and I know
the Maine Attorney General's office because I was Attorney
General of Connecticut, and we dealt frequently with that
office, and like Connecticut, it is a relatively small office,
so devotion of resources to this kind of issue is a major
commitment for that office, is it not?
Well, my time is about to expire, but I just want to say
finally how important reliable information is about this
problem and how lacking, I believe--and you should disagree
with me if I am wrong--how wanting and lacking good information
is about this problem, and one of the reasons we are here and
why, again, I thank the Chair and our Ranking Member, who is
herself a former prosecutor, this kind of awareness is very
important to raise.
Thank you very much.
The Chairman. Thank you, Senator.
I want to thank all of our witnesses for appearing today
and enhancing our understanding of the tragic issue of
financial exploitation of our seniors. When a senior becomes
incapacitated such that someone, whether a court-appointed
guardian or a friend or family member, needs to take over the
senior's financial affairs, the senior should not have to fear
theft, abuse, financial exploitation, and yet over and over
again, that is what we hear happening.
Many cases are truly shocking, such as some of the ones
that we have read about or heard described today. At times, the
elderly person is left destitute with their hard-earned savings
gone. In other cases, they are physically abused as well as
emotionally and financially exploited.
A key challenge that I have learned about today is that it
seems every State has a bit of a different system for handling
guardianships and for making sure that protections are in
place. In that regard, I particularly want to salute the State
of Minnesota for the work that you are doing and the fact that
you are willing to make your software available to other States
for free, even though it is going to cost them something to set
it up, monitor it, run it, et cetera.
I am very proud of the work that Legal Services for the
Elderly is doing in my State of Maine, working with other
advocates for our seniors, and I very much appreciate the work,
Ms. Martin, that you and your nonprofit organization are doing.
The fact that you have had a 24-percent increase in reports is
both good news and bad news. The good news is people are
starting to report these cases. The bad news is it is probably
the tip of the iceberg of what is going on. All of our
witnesses have added a great deal to our understanding.
This is the last hearing of this Committee for the 114th
Congress unless the month of December goes very badly here.
In which case we may have two more hearings, but I believe
that it is our last hearing, so I want to especially thank our
staffs today. They have worked extremely hard. They have worked
as a team. They may have differences at times, but they are
united in their goal to improve the quality of life for our
seniors.
As a Senator who does represent the State with the oldest
median age in the country--it is not Florida; it is Maine--I am
particularly passionate about making sure that our seniors
spend what are supposed to be their golden years in security
and with their well-being protected, and that is why we have
covered just a host of issues in this Congress, but we have
focused on three in particular: one is financial security for
our retirees; the second is biomedical research so that we can
make progress against Alzheimer's and other diseases that
particularly plague our seniors; and, third, we have focused on
financial exploitation and scams, and we have a hotline that is
very busy. It just seems that every time I am home myself I get
at least two or three scam calls, and one of these times I am
going to set up a sting operation.
Senator McCaskill. Now you are talking.
The Chairman. Yes. I have learned from our Ranking Member,
and most of all, I want to thank again our Ranking Member. It
has been such a great pleasure working with you, and I do not
know whom I am going to whisper to during a hearing when a
legal term with which I am unfamiliar comes up.
Senator McCaskill. Bob can help.
The Chairman. He can help? You have trained him that well?
Okay, but I do look forward to working closely with Senator Bob
Casey, who will be our new Ranking Member starting in January.
I am most proud of the fact that throughout this Congress
this Committee has acted as a team and, with very few
exceptions, it has not been a partisan Committee at all, and
certainly not in the way that the Ranking Member and I have
conducted it, and that is what we need more of in Washington.
Thank you all for being here. Committee members have until
Friday, December 9th, to submit questions for the record. This
concludes our hearing. Thank you.
[Whereupon, at 3:57 p.m., the Committee was adjourned.]
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APPENDIX
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Prepared Witness Statements
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