Virginia Legislative Update: Financial Exploitation of Elders

Are there really people out there who don't realize that financial exploitation of patients is a crime? Cathy Montville reports:

http://finance.yahoo.com/news/first-person-elder-financial-abuse-crime-152300386--finance.html

What I learned during last winter's bill reading was that there's a widespread feeling across Virginia that existing laws should go farther. What I learned today, popping back over to http://lis.virginia.gov, was that our legislature failed to reach a clear agreement about how to revise the laws so that more crooks could be caught and fewer nuisance claims could be brought against those who genuinely care for patients. Several bills were proposed, then tabled for further discussion next year.

It's not that there was serious objection to the idea of adding a paragraph like this one to the state law. It seems to be more a lack of agreement about the precise wording; specifically, about how many years people who exploit disabled patients should spend in jail.

"Any person who knowingly exploits the impaired mental or physical capacity of an incapacitated adult or an adult by deception, intimidation, undue influence, coercion, harassment, duress, or misrepresentation to use, obtain, convert, or take control of or to endeavor to use, obtain, convert, or take control of the incapacitated adult's or adult's money, assets, property, or financial resources with the intent to deprive the incapacitated adult or adult of the use, benefit, or possession of the money, assets, property, or financial resources and to convert such money, assets, property, or financial resources to the perpetrator's own use or benefit is guilty of a Class 5 felony. However, any responsible person or a person who has a fiduciary relationship with the incapacitated adult or adult, including but not limited to a court-appointed or voluntary guardian, trustee, attorney, conservator, executor, or person with a power of attorney, who violates this section is guilty of a Class 3 felony."

It's hard to draw the lines, for the same reasons that it's hard to build a rat-proof house. Patient abusers have much in common with rats. They diligently search for, and then nibble around the edges of, any crack until they can slither inside...a wall, or a law.

Accusations of patient abuse tend to be made from both sides. Home care providers, inside or outside the family, inevitably become involved. Judgment calls have to be made.

A patient accepted two great-nieces as home care providers. They were nice Christian girls, ages eighteen and twenty-two. They had no formal training as nurses. What they'd seen in nursing homes was that difficult patients, especially the ones who had trouble getting to the toilet in time, were dressed in flimsy little slit-back shirts and "restrained" in bed. Since they were too modest to bathe a patient themselves, and depended on their boyfriends to do that chore after work, the quality of care they were providing was atrocious. The patient never agreed to use the term "abuse" to describe their time with him, and didn't want any kind of penalty imposed on them...but he was so afraid of getting into a similar situation that he panicked when any other young woman entered the house, feeling a need to avoid any possibility of having to depend on a young woman as a nurse. This was one of the less distressing cases I've observed firsthand, because the girls genuinely cared about their great-uncle and were willing to release him into more competent hands without a fight.

A patient who was depending on heavy doses of medication to control his blood pressure was perceived as "foggy" and "confused" on his best days. Since his wife had been his sole heir, his hired man hustled the patient into a law office, on the day after his wife died, to draw up a new will. The patient, obviously in shock, seemed more confused than usual and could remember the name of only one of his siblings. The lawyer pushed him to assign power of attorney to the hired man. The hired man, who had no experience in this sort of thing, little imagination, little education, and I suspect a low I.Q., proceeded to pay himself and his wife generous wages and put the patient on an austerity budget that included unqualified nurses, poor diet, inappropriate medication, and no mental stimulation of any kind. The sister whose name the patient had remembered alerted the other siblings to the patient's deteriorating condition and inadequate care. Relatives were then dragged into a custody battle with the hired man, who probably did not consciously intend to hasten the patient's demise, but certainly didn't want to lose the salary the lawyer had told him he could pay himself. The patient wanted the hired man demoted without the stress (to the patient) and disgrace (to, in his mind, all parties) of a lawsuit. Although ruled competent to charge the hired man with abuse, the patient refused to do so, and would retreat back into "confused" behavior when urged to help prosecute the hired man.

A patient who was conscious, and intelligent, but extremely weak due to acute physical illness, had a greedy relative who wanted him to be "incompetent." I was with the patient the first two times this relative sent in a psychiatrist to examine his mental capacity. The psychiatrist would have pronounced the patient incompetent the first time if I hadn't insisted, "He knows what people are saying; he's just not strong enough to answer in complete sentences. If you ask him yes-or-no questions you'll get sensible answers." The second time, the relative arranged for the patient to be examined while he was sedated after a procedure that had bruised his throat; again I insisted that the patient would be able to answer yes-or-no questions intelligently in another day or two. On the third try the relative sent in a third psychiatrist before I got there, and I walked into the patient's room to find my patient obviously conscious and very unhappy that he'd been ruled incompetent at last. Even this patient did not seem to want to use his severely limited energy to denounce his relative.

It's hard to depend on legislation to protect patients from financial abuse, because it's hard to say exactly when a patient is being abused financially...but we can try.

For one thing, we can categorically say that if medical insurance is made mandatory, and insurance agents are authorized to make health care decisions for patients, a lot of patients will feel financially abused.