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Note: The following does not contain the full publication of this article due to permission rights. Parts written by another author have been omitted.
| Elderly adults may seek legal representation after experiencing abuse or identity theft. This article discusses legal procedures that can be used to stop or prevent abuse. It also gives an overview of identity theft, how to help clients prevent it, and how to assist clients who are victims of identity theft. |
Protecting Clients from Abuse and Identity Theft
Elder abuse assumes a variety of forms. An elderly person might seek legal assistance after experiencing physical abuse; caregiver neglect; financial exploitation; or emotional, verbal, or sexual abuse. A person interested in the welfare of the older adult might seek legal intervention to stop the abuse of an elderly family member or friend, or to attempt to prevent an older adult from harming
him or herself through self-neglect 1 . Additionally, an elderly person might inquire about identity theft, either in terms of prevention or when seeking legal representation after being a victim of identity theft.
When a client approaches an attorney to discuss a possible case of elder abuse or identity theft, the attorney should assist the client in notifying local police and the state's adult protective services agency. However, such notification often is not enough to protect victims of elder abuse or identity theft, and attorneys should be prepared to advise clients on additional steps to take to protect themselves or other victims. This article will describe legal procedures attorneys can use when presented with a case of elder abuse, including protective orders, guardianships, and conservatorships.
These procedures can be used to help stop abuse and to assist the client in regaining control of his or her financial affairs, physical well being, and living environment. This article will also discuss techniques useful for protecting elderly persons from the widespread crime of identity theft.
Elder Abuse
The National Center on Elder Abuse reported in its Survey of State Adult Protective Services ("NCEA Survey") that between one and two million Americans aged 65 or older have been the victims of elder abuse. 2 Elder abuse is underreported; excluding self-neglect, data suggest that only one in fourteen incidents are reported. 3 Only one of every twenty-five instances of financial exploitation is reported. 4 Females are slightly more likely than males to be victims of elder abuse. 5
Perpetrators of elder abuse are most often family members. According to NCEA Survey results, in 30 percent of reported cases, the spouse or intimate partner of a victim was the perpetrator, and adult children accounted for 18 percent of the alleged perpetrators. 6 In the NCEA Survey, other family members are identified as perpetrators in 7 percent of elder abuse cases. These family categories account for 55 percent of substantiated reports. 7
Mandatory Reporting and Emergency Intervention
Colorado does not have a mandatory reporting requirement for abuse of an at-risk adult. Persons urged to make a report are set forth in CRS § 26-3.1-102 and include physicians, medical examiners, hospital and nursing home personnel, psychologists and mental health workers, social workers, dentists, law enforcement personnel, ombudsmen, workers for licensed care facilities, fire protection personnel, guardians and conservators, and several other categories. Attorneys are not among those urged to report abuse of at-risk adults but may, as with other persons, file a report. 8 Reports are kept confidential unless released by a court for good cause. 9
Cases of elder abuse often require prompt action to prevent further harm. An attorney representing a person being abused or a person interested in protecting an elderly person's welfare can get emergency protective orders promptly in place by filing a verified complaint for a civil protective order. A temporary civil protective order can be issued to prevent imminent danger to life or health or thwart the emotional abuse of an elderly adult by restraining the abuser from contact with him or her to prevent the abuser from continuing the acts alleged in the complaint. 10
Emergency intervention might also include the filing of petitions for temporary guardianship and/or special conservatorship. When there is danger of substantial harm to the respondent's health, safety, or welfare, the court may appoint a temporary guardian. 11 The court may issue orders of special conservatorship to preserve the person's property or to apply the value of the property as required for his or her support. 12 These legal protections may be obtained simultaneously or separately in the same case, and the court will hear the matters at the earliest possible time.
The Civil Protective Order: A temporary or permanent civil protective order may be sought to prevent: (1) assaults and threatened bodily harm; (2) domestic abuse; (3) emotional abuse of an elder or of an at-risk adult; and (4) stalking. 13 The civil protective order enables an attorney to assist the elderly victim by keeping the perpetrator of the abuse away from the victim and restraining the abuser from threatening, molesting, or injuring the victim. Additionally, the protective order may require that the perpetrator be excluded from the family home or from the home of another party upon a showing that physical or emotional harm would otherwise result. 14
Interestingly, any person who knows of or suspects mistreatment or abuse of an elderly or at-risk adult may bring the action seeking a civil protective order. 15 In that event, a copy of the complaint, citation, and temporary order must be served on "the person to be protected;" that is, the elder or at-risk person and the defendant. 16
The process for obtaining a civil protective order is governed by CRS §§ 13-14-101 and -102. Although a duly authorized municipal, district, juvenile, or probate court is authorized to issue civil protective orders, most orders are issued by the county court. Therefore, the practitioner should consult County Court Rules of Civil Procedure ("CCRCP") Rule 365, in addition to the applicable statute.
Upon submission of a proper and verified complaint 17 and after a hearing, the judge or magistrate may issue a temporary civil protective order if he or she is satisfied that there is sufficient cause. A hearing to show cause why the temporary civil protective order should not be made permanent must be set for a "return date" within fourteen days of the issuance of the temporary order. Before the return date, the defendant must be served with a copy of the complaint, order, and citation according to Rule 304 of the CCRCP or Rule 4 of the District Court Rules of Civil Procedure. 18
At the hearing on the citation and after examination of the record and evidence, the judge or magistrate may issue a permanent civil protective order. If the judge or magistrate finds that the defendant has committed acts that are grounds for a civil protective order and, unless restrained, will continue to commit such acts, the judge or magistrate shall order that the temporary order be made permanent. 19 If certain conditions are met and the judge or magistrate finds that it is in the best interests of the parties, the temporary civil protective order and the hearing may be continued for up to 120 days, or may be continued for fourteen days at the request of either party and upon a finding of good cause. 20
Appointment of an Emergency Guardian: An attorney may, on behalf of a person interested in the welfare of an at-risk adult, petition for the appointment of an emergency guardian. 21 The emergency guardian can help safeguard the victim by implementing a care plan recommended by medical professionals and by taking immediate steps to ensure that the elderly person will live in a safe, secure, and medically appropriate environment.
The court may give the emergency guardian limited or unlimited powers, as needed, before a permanent guardian is appointed. 22
To begin the process for appointment of an emergency guardian, a petition for permanent guardian must be filed, and a request for the appointment of an emergency guardian must be made in the petition. 23 The court will grant a hearing on the appointment of an emergency guardian if compliance with the procedures for appointment of a permanent guardian likely will result in substantial harm to the respondent's health, safety, or welfare, and if no other person appears to have the authority and willingness to act in the circumstances. 24 Appointment of an emergency guardian, with or without notice, is not a determination of the respondent's incapacity. 25(See accompanying sidebar for discussion of incapacity as it relates to the appointment of an emergency guardian.)
The Colorado Probate Code 26 requires that the respondent in a guardianship action be personally served with proper notice. If an order appointing an emergency guardian is issued ex parte, the respondent must be served with notice of the appointment within forty-eight hours after the hearing for the appointment of the emergency guardian. 27 Appointment of counsel for the respondent is mandatory, and the respondent is entitled to a hearing within ten days of the appointment. The appointment of an emergency guardian may not exceed sixty days. 28 Upon the entry of the order appointing an emergency guardian, the court will issue Letters of Emergency Guardianship reflecting the appointment of the emergency guardian and showing the duration of the appointment. Any restrictions imposed in the court's order will be reflected in the Letters. 29
Appointment of a Special Conservator: To provide protection of an older adult's property, an attorney may seek immediate control through the appointment of a special conservator. A special conservator is a person appointed by the court to manage the estate or affairs of someone who is legally incapable of doing so. The appointment of a special or permanent conservator is not a determination of incapacity of the protected person. 30
Because no finding of incapacity is required, the petitioner may be the person in need of protection. In this example, an older adult may seek to have a special conservator appointed to stop or prevent further financial exploitation or abuse by a family member or other acquaintance. The appointment of a conservator can insulate the older adult from manipulation and provide a necessary buffer from a financial exploiter.
Following a preliminary hearing and without notice to others, the court may appoint a special conservator while a petition for the appointment of a permanent conservator or other protective proceeding is pending. The special conservator preserves and protects the assets while also applying the property of the respondent for the support of the respondent or his or her dependents. 31 Although the respondent must be personally served with a copy of the petition for appointment of a permanent conservator and notice of hearing, 32 a special conservator may be appointed without prior notice to the respondent and the persons listed in the petition. 33
Of course, the attorney should favor notice to the respondent and other interested persons. In some cases, however, such notice could trigger further financial exploitation of the respondent before a special conservator is appointed. In these cases, the attorney should be prepared to show why notice should not be given. Unlike emergency guardianships, no time limit is specified for the term of appointment of a special conservator. 34
Upon appointment and issuance of Letters of Special Conservatorship, the special conservator should take immediate possession of the respondent's bank accounts and other assets. The interests of the respondent are not transferable or assignable by the respondent once a conservator is appointed. Title to the respondent's assets vests in the conservator unless restricted by the court. 35 Nevertheless, the special conservator should record the Letters of Special Conservatorship in the county in which the respondent may have interests in real estate. (See accompanying sidebar for discussion of incapacity as it relates to the appointment of a special conservator.)
Incapacity and the Appointment of Guardians and ConservatorsThe appointment of either an emergency guardian 1 or a special conservator 2 is not a finding of incapacity. However, the petitioner must allege incapacity or assert a functional disability sufficient to warrant the appointment of a guardian or conservator. 3 For the court to appoint a guardian, the petitioner must show by clear and convincing evidence that the individual is "unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or For the court to appoint a conservator, the petitioner must prove "by clear and convincing evidence, the individual is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance" 5 The limited or unlimited conservator may be appointed if, by a preponderance of the evidence, the court finds the following:
1. CRS§ 15-14-312(3). 2. CRS§ 15-14-409(4). 3. CRS §§ 15-14-102 (5) and 15-14-401. See generally Glatstein, supra, note 28; Spiegle and Crona, "Legal Guidelines and Methods For Evaluating Capacity," 32 The Colorado Lawyer 65 (June 2003) (in-depth discussion of these issues); Mitchell, "Crisis Intervention to Prevent Elder Abuse: Emergency Guardianships and Other Legal Procedures," 33 The Colorado Lawyer 91 (July 2004). 4. CRS § 15-14-102(5). 5.CRS§15-14-401(b)(I). 6. CRS § 15-14-401(l)(b)(II). |
Agent Accountability:
In some instances, a fiduciary acting under a power of attorney may be the financial exploiter. The unauthorized use of power of attorney by the agent has become a common source of elder abuse. According to CRS § 15-14-602, "agent" generally means a person who is authorized by an "agency instrument" to act on behalf of the principal.
As relevant to this section, the principal is a natural person who signs the power of attorney or other "instrument of agency" that grants powers to the agent. The provisions of Part 6 of Article 14, Title 15 of CRS would normally be used only by the attorney if a conservator has not been appointed. Upon appointment, a conservator normally would revoke any prior power of attorney so that the conservator will have sole control over the protected person's assets.
If an attorney suspects that an agent is abusing his or her authority, the attorney could petition to obtain control over the agent's actions on behalf of the alleged victim. 36 However, the petitioner must show "that the principal lacks the capacity to control or revoke the agency instrument." Presumably, the petitioner must show that the principal "lacks capacity" because of an inability to manage his or her financial affairs. Psychosocial factors, such as the dependence of the principal on the agent and possible undue influence, might satisfy this burden as well. 37
If the court finds that the agent has exceeded his or her authority or "that the agent's action or inaction has caused or threatens substantial harm to the principal's person or property in a manner not authorized or intended by the principal," the court may appoint a guardian or conservator or revoke the agency and impose limitations as it deems proper. 38 Because an agent also has a duty to account, 39 an attorney could obtain an accounting before determining whether to seek the appointment of a guardian or conservator.
Additionally, if the court finds that the agent is not acting for the benefit of the principal according to the terms of the agency instrument, or that the agent's action or inaction has caused or threatens substantial harm to the principal's person or property in a way not authorized or intended by the principal, the court may order a guardian of the principal's person or a conservator of the principal's estate, or both, to exercise any powers of the principal under the agency instrument. Thus, the guardian or conservator has the power to revoke the agency. The court also has the authority to enter additional orders without appointment of a guardian or conservator as the court deems necessary to provide for the best interests of the principal. 40
NOTES
1. The National Center on Elder Abuse ("NCEA"), "A Response to the Abuse of Vulnerable Adults: The 2000 Survey of State Adult Protective Services," ("NCEA Survey") at 28 (available at http://www.elderabusecenter.org/pdf/research/apsreport030703.pdf) ("NCEA Survey"). Self-neglect is the most frequently occurring form of maltreatment facing elderly people.
2. Id
3. NCEA Fact Sheet, 2005 (available at http://www.elderabusecenter.org/default.cfm?p=statistics.cfm.
4. "NCEA Survey," supra, note 1
5. According to the "NCEA Survey," 59 percent of victims are female and 41 percent are male.
6. Id.
7. Id.
8. CRS § 26-3.1-102(1)(c)
9. CRS §§ 26-3.1-102(7)(a) and (b).
10. CRS § 13-14-102(4)(a)
11. CRS § 15-14-312(1).
12 . CRS § 15-14-406(7).
13. CRS § 13-14-102(1.5).
14. CRS § 13-14-102(15).
15. CRS §§ 13-14-102(5), 26-3.1-102(l)(b), and(l)(c).
16. CRS § 13-14-102(6).
17. Standard forms are available at http://www.courts.state.co.us/chs/court/forms/restrainingorderforms/restrainingorder.htm.
18. CRS § 13-14-102(5), (6) and (7).
19. CRS § 13-14-102(9).
20. CRS § 13-14-102(9)(b).
21. Black's Law Dictionary (%t\i ed. 2004) ("[a] guardian is a person who has the legal authority and duty to care for another's person or property, especially because of the other's infancy, incapacity, or disability and may be appointed either for all purposes or for a specific purpose").
22. CRS § 15-14-312.
23. CRS § 15-14-304.
24. CRS § 15-14-312.
25. CRS § 15-14-312(3).
26. CRS §§ 15-14-309 et seg.
27. CRS § 15-14-312(2).
28. CRS § 15-14-312. See generally Glatstein, Dineen, Franklin, Kirch, and Steenrod, "Highlights of Colorado's New Guardianship and Conservatorship Laws," 30 The Colorado Lawyer 5 (Jan. 2001).
29. See CPC Form 17.
30. CRS § 15-14-409(4).
31. CRS § 15-14-406(7).
32. CRS § 1514-404.
33. CRS § 15-14-406(7).
34. See generally Glatstein, supra, note 28.
35. CRS §§ 15-14-421 and 422.
36. CRS§ 15-14-609.
37. There is no cross reference in CRS § 15-14-609 to the criteria for appointment of a conservator.
38. CES § 15-14-609(1).
39. CRS § 15-14-606.
40. CRS § 15-14-609.
