What Every Oklahoma Elder Lawyer Should Know About the Protective Services for Vulnerable
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WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOW ABOUT THE PROTECTIVE SERVICES FOR VULNERABLE ADULTS ACT By Brock R. Ellis December 1, 2003
INTRODUCTION
Harry, age 72, was hospitalized due to the amputation of his leg. He signed over power of attorney to his son, John. John did not have a job nor did his wife. Harry had an estate of $400,000; plenty of money to support all of them. The son and his wife moved in and took over. They remodeled the house and purchased expensive luxury items. They say they remodeled the bathroom for Harry. The bathroom was still not wheel chair accessible and no ramps were built to allow Harry access to the house. Harry was very capable of making his own decisions but was not included in the decisions on how to spend his money. Other family members were told they could not visit unless the made prior arrangements with John, who would deny all of them contact.1
Harry’s story is sad, but by no means unique. Thousands of cases, eerily similar to
Harry’s, are reported every year. Many stories of vulnerable adult abuse are much worse. In recent years, however, the United States Congress, in conjunction with the several states, has developed what could be an effective scheme to help eliminate these terrible acts.
For example, Oklahoma’s Department of Human Services (DHS) investigates allegations of vulnerable adult abuse. The DHS receives its funding from the federal government and from the citizens of Oklahoma. The investigatory authority is vested to the Department of Human
Services via the Protective Services for Vulnerable Adults Act (PSVAA).2 Furthermore, the
PSVAA includes criminal charges for those people who fail to report known acts of vulnerable
1 National Center on Elder Abuse, 2000 National Survey, available at
1 adult abuse.3 These criminal charges could have lasting effects on elder law attorneys as well as the rest of the legal community.
The purpose of this paper is to give a broad overview of the Protective Services for
Vulnerable Adults Act, as well as to analyze its effect on the legal community. First, this paper will provide a statistical overview of elder abuse in the nation and Oklahoma. Second, this paper will provide a brief history of elder abuse laws in the United States and in Oklahoma. Then, this paper will offer a summary of the Act, including the legal consequences of failing to comply with the statute. This paper will follow up with the direct effects this act could have on
Oklahoma attorneys. Finally, this paper will present some techniques that the legal community can use to help curb the problem of elder abuse.
STATISTICS & HISTORY
Elder abuse is not a new phenomenon. But, congressional attention to it is relatively recent. In 1975 the Federal government began funding State Protective Services programs for all adults (over the age of eighteen) under Title XX of the Social Security Act.4 In 1977 Oklahoma passed its first Adult Protection Legislation.5 The present-day Protective Services for Vulnerable
Adults Act (PSVAA) was contrived from that legislation.6 The PSVAA provides a system of protection for the vulnerable adult. Also, the act imposes criminal penalties for failing to report known acts of vulnerable adult abuse.
3 OKLA. STAT. tit. 43A § 10-104 (1991). 4 42 U.S.C.S. § 1397a (2003). 5 Adult Protective Services—Information about Adult Protective Services, available at
2 In a national survey conducted by the National Center of Elder Abuse, forty states reported a total of 166,019 cases of vulnerable adult abuse.7 In that survey Oklahoma reported
3,399 cases of abuse.8 The most recent data out of Oklahoma shows that by May of 2003 more then 1,360 cases had been reported that year. Of those cases 1,277 investigations were conducted by the Department of Human Services, and 790 cases of abuse were confirmed.9
The number of reported abusive acts committed against vulnerable adults is staggering.
However, the national survey informs that only one in five cases are reported. Often, vulnerable adults fail to make reports because the adult is incapacitated, scared, or embarrassed, or because the adult cannot recognize that the abuse is occurring.
Another major reason why so many adult abuse cases go unreported is that society lacks knowledge of elder abuse, and people are naive about this despicable situation. In addition, our inability to detect and diagnose elder abuse leads to many unreported cases. The National
Institute of Justice has identified a number of factors, which explain the under-reporting of elder abuse.10 First, there are no established signs of elder abuse. There are many symptoms that create a possibility of abuse; however, these symptoms alone do not equal abuse. Furthermore, these symptoms often go unnoticed for far too long.
Second, it is very hard to distinguish elder abuse from some of the common illnesses older people suffer. Third, ageism results in a devaluation of an older person’s life. People
7 National Center on Elder Abuse, supra note 1. 8 Id. at 61. 9 Oklahoma Adult Protective Services, Adult Protective Services By Type of Referral and County Table, available at
3 begin to care less and pay attention less. Finally, there are very few experts in the field of forensic geriatrics.11
Another major problem in stopping elder abuse is that out of all the reported cases every year, very few violators ever get prosecuted. Georgia Hamer of the Adult Protective Services
Division of the Oklahoma Department of Health Services believes that part of the reason for the lack of prosecution of adult abusers is due to the reluctance of the district attorneys to prosecute.
This disinclination to prosecute comes from the difficulty in proving these kinds of cases.
Prosecutors explain that forensic evidence is hard to provide. Combine that with the problems of juror perspective (it is hard for many people to believe that a child would abuse his or her parents), bias, and ageism, and it is easy to see how so many cases never make it to court.
The rest of this paper is devoted to discussing the current PSVAA and the implications the act has on the elderly. Oklahoma lawyers need to be fully aware of these implications because they could have lasting effects on an attorney.
THE PROTECTIVE SERVICES FOR VULNERABE ADULTS ACT (PSVAA)
The Oklahoma Protective Services for Vulnerable Adults Act (PSVAA) was enacted in
1991. The legislature ratified the PSVAA to stop elder abuse while at the same time in order to protect, “to the maximum degree of feasibility,” the rights of all individuals.12 When lawmakers realized that older citizens could be just as vulnerable to abuse as children, they proposed this legislation. The rationale for the PSVAA is that due to the infirmities of aging, incapacity, and
11 Elder Justice: Medical Forensic Issues Concerning Abuse and Neglect (2000), available at
4 many other disabilities that effect our aging population many elderly citizens are unable to protect themselves from abuse, neglect, and exploitation.13
Section 10.104(A) is the meat and bones of the PSVAA. It states,
Any person having reasonable cause to believe that a vulnerable adult is suffering from abuse, neglect, or exploitation shall make a report to either the Department of Human Services, the office of the district attorney in the county in which the suspected abuse, neglect, or exploitation occurred or the local municipal police department or sheriff’s department as soon as such person is aware of the situation. If a report is made to the Department of Health Services, the county office, after investigating the report, shall forward its findings to the office of the District Attorney in the county in which the suspected abuse, neglect, or exploitation occurred.14
In order to understand the full implications of the act, one must know the definitions of many of the key terms.
DEFINITIONS
The PSVAA defines a “vulnerable adult” as, “an incapacitated person, substantially impaired in the ability to provide adequately for the care or custody of self, is unable to manage his or her property and financial affairs effectively, or to protect ones self from abuse.”15 An
“incapacitated person” is defined as, “any person, 18 years and older, who is impaired by reason of mental or physical [defect] whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired without the assistance from others, or a person whom a guardian or conservator has been appointed.”16
13 Id. 14 OKLA. STAT. tit. 43A § 10-104(A) (2000). 15 OKLA. STAT. tit. 43A § 10-103(A)(5) (2001). 16 OKLA. STAT. tit. 43A § 10-103(A)(4)(a)&(b) (2001).
5 The PSVAA defines “abuse”, “neglect”, and “exploitation” very broadly. “Abuse” is defined as, “the causing or allowing to be caused the infliction of physical pain, injury, or mental anguish.” Abuse includes unreasonable restraint or confinement, verbal abuse, and sexual abuse.17
“Neglect” is defined as, “a failure to provide protection, adequate shelter, clothing, nutrition, health care, or causing or permitting harm or risk of harm through the action, inaction or lack of supervision by another individual.”18 The act also requires that a caretaker must do its best to stop self-neglect, meaning the caretaker must take reasonable action to insure the adult meets the necessary requirements for his or her own health and safety.19
“Financial exploitation” is defined as, “the improper use of a vulnerable adult’s financial, real or personal resources for the benefit of another person, through the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense.”20 The story of
Harry21 is a typical example of financial exploitation.
REQUIREMENTS OF THE ACT
The act requires a report to be sent to the Department of Human Services (DHS) by the person who suspects elder abuse as soon as that person is aware of the situation. The report must include the name and address of the vulnerable adult, the name and address of the caretaker, and a description of the situation.22
17 OKLA. STAT. tit. 43A § 10-103(A)(8) (2001). 18 OKLA. STAT. tit. 43A § 10-103(A)(10) (2001). 19 Available at
6 Upon discovering, after investigation,23 that the adult is indeed vulnerable, under the terms of the statute, and is in need of protective services, the DHS will immediately provide for the services of the PSVAA to be implemented. Due Process of law requires consent of the vulnerable adult.24 If the adult grants no consent, and DHS has no cause to believe the adult lacks capacity, then the investigation will be terminated.25
LEGAL CONSEQUENCES
Any person failing to promptly report the situation shall be guilty of a misdemeanor.26 A misdemeanor is punishable by no more then a $1,000 fine and/or no more then one year in jail.
The PSVAA requires everyone who has reasonable cause to believe a vulnerable adult is being subjected to abuse to report the abuse to Department of Human Services or the District
Attorney’s office.27 However, the act goes on to specifically name groups of people who are required to report. Included in the list are physicians, operators of emergency response vehicles, social workers and other mental health professionals, law enforcement officials, staff of domestic violence programs, and long-term care facility personnel.28
Any person making a false report without good faith shall be liable for any actual damages suffered by the person or persons being reported, and for punitive damages.29 The good faith requirement is a very low hurdle to jump and is not meant to deter reporting. The purpose
23 Procedures of a thorough investigation are found in OKLA. STAT. tit. 43A § 10.105 (1991). 24 OKLA. STAT. tit. 43A § 10-106(A) (1997). 25 Id. 26 OKLA. STAT. tit. 43A § 10-104(C) (2000). 27 Id. 28 OKLA. STAT. tit. 43A § 10-104(A) (2000). 29 OKLA. STAT. tit. 43A § 10-104(E) (2000).
7 of this clause is to avoid malicious use of the PSVAA to promote the agenda of an individual attempting to influence the situation of the vulnerable adult to his or her advantage.
The act also contains a retaliation or “whistle-blowing” clause that protects any employee who makes a report or cooperates in an investigation.30 The purpose of this clause is to protect the employment of honest individuals who work for care facilities.
OKLAHOMA ATTORNEYS’ OBLIGATION
As mentioned, everyone has a duty to report the suspected abuse, and can be subject to penalties for failure to report that abuse under penalty of law. However, questions often arise when one refers to attorneys. Does the attorney’s confidential relationship permit the disclosure of the abuse? Is the disclosure a violation of the attorney-client privilege and a violation of the attorney’s ethical obligations? In other words, must an attorney report the suspected abuse?
By referencing the Oklahoma Rules of Professional Conduct (ORPC)31 it appears that an attorney has an ethical obligation to report the suspected abuse to the department of Human
Services. The Preamble to the ORPC states that a lawyer is a public citizen, an officer of the legal system, and a representative of clients. First, a lawyer is a public citizen. As a citizen a lawyer has a duty to all other citizens to respect the laws of the State of Oklahoma and the
United States. Second, a lawyer is an officer of the legal system with a duty to protect and uphold the laws of the state. Finally, and most importantly, an attorney is a representative of
30 OKLA. STAT. tit. 43A § 10-104(G) (2000). 31 OKLA. STAT. tit. 5 Ch. 1, App. 3-A (2003).
8 his/her clients. As a representative an attorney has several duties. One of those duties is to evaluate the client’s affairs and report them to the client or to others.32
Furthermore, the preamble says, “In all professional functions a lawyer should…maintain communication with client concerning the representation [and] should keep confidential information relating to representation of the client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.”33 In the case of vulnerable adult abuse, an attorney is required by the PSVAA to report suspicious behavior.
Rule 1.6 of the ORPC requires an attorney not to reveal confidential information without informed consent.34 However, this rule has distinct exceptions. These exceptions are in place for the protection of the client as well as the legal system. One of the exceptions to the rule requires a lawyer to reveal information when the law requires. The PSVAA requires an attorney to reveal the information in order to comply with the laws of Oklahoma. A failure to do so could result in ethical violations as well potential criminal liability.
Rule 2.1 of the ORPC requires an attorney to exercise independent judgment and render candid advice to his client.35 In addition, an attorney is not just bound to legal analysis. An
32 OKLA. STAT. tit. 5 Ch. 1, App. 3-A, Preamble (2003). 33 Id. 34 OKLA. STAT. tit. 5 Ch. 1, App. 3-A, Rule 1.6 (2003). Rule 1.6 Confidentiality of Information b. A lawyer may reveal information relating to the representation of a client to the extent the l awyer reasonably believes necessary: (4) or as otherwise permitted under these Rules c. A lawyer shall reveal such information when required by law or court order. 35 OKLA. STAT. tit. 5 Ch. 1, App. 3-A, Rule 2.1 (2003). Rule 2.1 Duty as Advisor A. Lawyer must exercise independent judgment and render candid advice; may refer to moral, economic, social and political factors 1. This may involve telling the client unpleasant facts and alternatives 2. Purely technical, legal advice may sometimes be inadequate Lawyer may initiate advice giving if doing so would be in the client’s best interest.
9 attorney should also consider social, economic, or moral factors that could be relevant to the client’s situation. Attorneys are allowed to make independent decisions. The proper way to handle a situation of vulnerable adult abuse would be to explain to the client the duty of a lawyer to report the suspected acts of abuse.
Many vulnerable adults suffer from diminished capacity. When an attorney believes that a client with diminished capacity is at substantial risk of physical, financial, or other harm, the attorney may take reasonable protective action.36 Although this section of the MRPC does not require protective action, it is authorized. The definition of “substantial risk” is ambiguous at best, but it is safe to say that if an attorney witnesses what he or she believes to be signs of adult abuse there would be no ethical violation if that attorney reported the suspected adult abuse to the DHS based on a good faith belief that the client was in risk of harm.
An attorney should consider it his or her responsibility to know what those signs and symptoms are in order to provide the level of protection allowed by the MRPC and required by the PSVAA.
ATTORNEYS CAN HELP
Currently, the PSVAA has had very little effect on elder abuse. This could change dramatically with the help of the legal community. By getting the legal community involved, those vulnerable adults who retain legal assistance could have another level of protection.
Furthermore, considering the implications of failure to report37 and the ethical obligations
36 OKLA. STAT. tit. 5 O.S. Ch. 1, App. 3-A, Rule 1.14 (2003). (b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest. 37 OKLA. STAT. tit. 48A § 10.104(C) (1991). Individuals who fail to report acts of vulnerable adult abuse will be charged with a misdemeanor.
10 attorneys owe to their clients, an attorney should report the abuse out of legal and ethical necessity. In order to be a viable defense against abuse, all attorneys should be aware of the possible indication of abuse, neglect, or financial exploitation of a vulnerable adult.
SIGNS OF ABUSE AND NEGLECT
Physical signs of abuse and neglect include cuts, wounds, bruises, injuries that appear to be uncared for, pain from touching, poor skin color, sunken eyes, dehydration or malnutrition, frequent trips to the hospital, soiled clothing, lack of personal necessities, effects, or social contact.38 The emotional stability of a vulnerable adult can also reveal signs of elder abuse. Often the vulnerable adult will be fearful, anxious, angry, depressed, non-responsive, confused or disoriented, or provide implausible stories to describe their situation.39
SIGNS BY THE CARETAKER
If the vulnerable adult is being abused, chances are the attorney might come into contact with the abuser. Signs by a caretaker that indicate abuse include the caretaker acting indifferent to the vulnerable adult, preventing the adult from speaking to visitors. Also, the attorney might look to the history of the caretaker for past violent or criminal behavior.40 If an attorney becomes suspicious, he or she should conduct a limited background check of the caretaker. This would be the prudent thing to do.
38 Adult Protective Services—Information about Adult Protective Services, supra note 5. 39 Id. 40 Id.
11 ENVIRONMENTAL SIGNS OF ELDER ABUSE
An attorney should pay close attention to the environment surrounding the vulnerable adult. A clear sign of neglect is if the house that the vulnerable adult lives in is wholly inadequate for living. Look at the furniture, the temperature, and the smell in the house.
SIGNS OF FINANCIAL EXPLOITATION
Estimates show that 70 percent of the nation’s wealth is held by people over the age of fifty. That means that over the next 10 years the elderly will control roughly $10 trillion.41
Attempted exploitation of these funds is almost inevitable. Signs of financial exploitation are not as obvious as physical abuse to a layperson, but to an attorney the signs are easier to discover.
These signs include recent will changes in favor of caregiver, expensive gifts frequently being given to the caregiver, the vulnerable adult reporting that her personal belongings are missing, credit card problems, lack of funds in bank accounts, bounced checks, or unusual activity in vulnerable adults bank accounts.
Attorneys should ask question of all their vulnerable adult clients. Questions like, “what is your monthly income, have you made any loans, have you given away any property,” would assist a lawyer in determining if the adult suffers from abuse. The attorney should ask to see bank statements, tax returns, and credit card statements. Additionally, the attorney should follow up on these statements and returns as much as the attorney can.
41 Special Committee on Aging Hearing. Financial Predators and the Elderly (2002), available at
12 CONCLUSION
Prior to the 1970s vulnerable adults had very little protection. Many laws have been passed since then to help the vulnerable. Oklahoma’s passage of the Protective Services for
Vulnerable Adults Act in 1991 is yet another step in the right direction. However, this is not the final step. More needs to be done to spread the information on vulnerable adult abuse. The
Department of Human Services (DHS) should provide every household with information regarding vulnerable adult abuse. Furthermore, the DHS should recruit the assistance of
Oklahoma attorneys to help curb this terrible problem. The DHS should explain to all attorneys their legal and ethical obligations to their clients. DHS should also provide attorneys with the necessary knowledge to spot symptoms of abuse and know where to report it. Finally, DHS should give all attorney’s the telephone numbers and addresses of all the DHS office across the state.42 Also, DHS could send out a newsletter to all Oklahoma lawyers. The more Oklahoma attorneys know about vulnerable adult abuse the better off the elderly in this state will be.
42 See DHS website, available at
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