Karen C. Buck, The Legal Intelligencer
April 27, 2015
Under the leadership of its highest court, Pennsylvania is breaking ground in a field of national importance: elder justice.
Chaired by Justice Debra Todd and formed under the tenure of former Chief Justice Ronald D. Castille, a group of 38 judges, prosecutors, attorneys, aging specialists and advocates from across the state convened in April 2013 in Harrisburg at the Administrative Office of Pennsylvania Courts with Court Administrator Zygmont Pines and the skilled AOPC staff, and would spend the next year-and-a-half studying issues of access to justice faced by one of the largest populations in our commonwealth: older Pennsylvanians. The focus: the legal and health crisis of elder abuse—injuring well over 5 million Americans each year, costing older Americans and their families over $36 billion in losses to elder financial exploitation alone—and how we protect rights, minimize paternalism and ensure oversight when life-changing interventions such as guardianship are pursued. The Elder Law Task Force of Pennsylvania, perhaps the most ambitious in the nation, was launched.
As the only nonprofit in Pennsylvania solely focused on protecting the legal rights of Pennsylvania seniors, the SeniorLAW Center was honored to be a member of this groundbreaking initiative and its ongoing work, which will have powerful impact on many aspects of the lives and futures of Pennsylvania’s 2.7 million seniors—the fourth largest percentage in the country, growing to 25 percent of our state’s population and over 3.3 million individuals by 2020.
The task force met its goal of delivering “a blueprint” for change in both the civil and criminal justice systems and other branches of government, issuing a comprehensive 284-page report with 130 detailed and often bold recommendations in November 2014. Ambitious in scope, the report recommends best practices in court rules, legislation, education and oversight, focusing on how Pennsylvania elders interact with the state court system, access legal information, assistance and protections, and calling on all branches of government, legal and community leaders, and the public to put them into practice.
Two critical recommendations were immediately implemented by the Supreme Court: (1) the creation of a new Office of Elder Justice in the courts and (2) and the formation of an Advisory Council on Elder Justice in the Courts, chaired by Superior Court Judge Paula F. Ott. This smaller leadership group is working to move the recommendations of the task force forward.
Elder Law Versus Elder Justice
The term “elder law” is well known, but “elder justice” is a newer term, focused not on estate administration and planning but on protecting the legal rights, safety and security of elders, including preventing, responding to and prosecuting elder abuse and protecting victims’ rights, health and lives. Why must this be a national and Pennsylvania priority? By sheer numbers and economic impact alone, issues of elder justice demand our attention as members of the legal and business communities and as those who care about Pennsylvania families.
Elder abuse, neglect or exploitation is likely to affect each one of our extended professional and personal networks. No older American or family is immune: elder abuse cuts across all economic, racial, religious, geographic, gender and cultural lines, no matter how wealthy, educated, sophisticated or even famous. Film star Mickey Rooney was a victim, and testified about his ordeal to the U.S. Senate Special Committee on Aging in 2011, three years before his death. Rooney described feeling “scared, disappointed, yes, and angry,” and had filed a restraining order against his stepson and stepdaughter for “unbearable” financial and emotional abuse over a 10-year period, leaving him powerless over his assets and personal life—limiting him, he said, to canned foods dropped off at his door and facing foreclosure while his abuser led a lavish lifestyle. “I felt trapped, scared, used, and frustrated. But above all, I felt helpless. For years I suffered silently,” he said. Rooney urged Congress to confirm that elder abuse “is a crime and we will not allow it in the United States of America.” Despite a show business career spanning more than 80 years, Rooney said he had lost most of his fortune because of elder abuse and financial mismanagement by his stepson, against whom he later obtained a $2.8 million stipulated judgment. He died last year at the age of 93.
Elder abuse is vast, pervasive and underreported: One of every 10 people 60 and older who lives at home suffers abuse, neglect of exploitation, yet only one in 24 cases is reported to authorities. Elder abuse is expensive: Violence against elders adds more than $5.3 billion in direct medical costs to the nation’s annual health expenditures. Elder abuse is deadly: Victims are three times more likely to die prematurely.
How is Pennsylvania leading the nation in its response? With comprehensive and ambitious recommendations, which may affect financial institutions (mandatory training and reporting of suspected financial abuse are recommended); evidentiary and prosecutorial practices (to preserve testimony, track victim data, preclude perpetrators from causing excessive delays to await a victim’s death); new private causes of action for elder abuse; amending the slayer’s statute to preclude abusers from benefiting from their crimes; strengthened oversight, mandatory training and reporting for all who serve as guardians, including attorneys; 29 American Bar Association recommendations to improve court practices, knowledge and environments for elder victims and litigants; an “emeritus program” enabling retired and voluntarily inactive attorneys to serve elders pro bono; a “Bill of Rights of an Alleged Incapacitated Person” to be distributed to individuals, families and guardians when a person is served with a petition for guardianship and at the time the person is adjudicated incapacitated; creation of a pilot specialty “elder court” in Philadelphia (led by President Judge Sheila Woods-Skipper and a local committee of judges, attorneys, senior court staff and advocates); and much more.
The Civil Justice Crisis
Importantly, the report includes specific recommendations to improve access to justice for elders, including the low-income and most vulnerable.
Pennsylvania seniors need access to civil legal aid to address critical legal issues, including those affecting basic human needs of safety, shelter and sustenance, to know and protect their rights, to navigate the judicial and legal systems, and to seek access to justice. The May 2014 report, “Toward Equal Justice for All: Report of the Civil Legal Justice Coalition,” highlights this crisis in the state’s civil justice system, showing that the lack of representation for low-income, unrepresented litigants negatively affects the quality of justice for those unable to afford counsel and the courts’ administration, and undermines the rule of law.
Pennsylvania is facing a “civil justice crisis” in which at least 80 percent of the critical legal needs of most low-income individuals and families go unmet, a result of increasing need and decreasing funding for civil legal aid. Pennsylvania elders are particularly affected, in light of low fixed incomes, high poverty rates and additional challenges and obstacles such as disabilities, isolation, lack of transportation, health problems and issues of mobility and access. Like other low-income individuals, elders who cannot afford a lawyer for their most basic legal problems do not have the right to one. They must navigate the legal system alone.
Senior poverty in Pennsylvania is severe and often hidden: 10.1 percent of older women in Pennsylvania live in poverty. Pennsylvania seniors face alarming rates of deep poverty, defined as less than 50 percent of the federal poverty level, or less than $500 per month. Deep poverty for Pennsylvanians 65 and older rose 11 percent between 2011 and 2012. The National Women’s Law Center reports that 750,000 older women across the nation live in deep poverty, with dramatic increases from 2011-12.
The growing justice gap in Pennsylvania reflects a national trend. According to a 2009 study of the “justice gap,” there is one lawyer for every 177 people above the poverty level in the United States. For the poor, there is one lawyer for every 4,198 people. Since that study, the disparity has increased.
Access to civil legal services in basic human needs cases provides significant economic and social benefits to individuals and the community: for each dollar spent on legal aid, there is an $11 return to Pennsylvania and its residents, saving costs associated with domestic violence, foster care, child custody, housing, health care, crime and imprisonment. The Elder Law Task Force recommended consideration of how to better fund and improve access to legal services to low-income Pennsylvania elders to meet the civil justice crisis.
Who should be concerned about these issues and the work of elder justice? Each one of us. As lawyers, judges, legislators, prosecutors, bar associations, government leaders, family members and citizens, we and our work will be affected by aging. Each of these professions is identified in the report. Aging will impact not only the courts and our legal system, but our health care systems, financial institutions, military and veterans services, employment policies, housing, and familial responsibilities, affecting our budgets, employees, families and many aspects of our own lives.
Aging is the universal condition. So it is in our self-interest to heed the call of elder justice—for ourselves and our families. If we live, we will age. And don’t we want justice to be there when we arrive?
Karen C. Buck is the executive director of SeniorLAW Center, which protects the rights of older Pennsylvanians, providing free legal representation, education and advocacy. SeniorLAW Center (www.seniorlawcenter.org) is set to celebrate elder justice and advocates at its May 14 gala.
Reprinted with permission from the April 27, 2015 issue of The Legal Intelligencer (c)2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.