Balancing Independence and Vulnerability of Older Adults | Part 3
“Balancing Independence and Vulnerability of Older Adults: What if Granny Wants to Gamble?” is a three-part special:
- Synopsis: An introduction and overview to lecture.
- Part 1: Discusses women’s differing longevity and the differences in how men and women manage finances later in life.
- Part 2: Will talk about elder financial abuse and the perpetrators.
- Part 3 (this podcast): The final part will recommend steps that lawyers can take to protect autonomy of older adults, especially women.
“Balancing Independence and Vulnerability of Older Adults: What if Granny Wants to Gamble?” That’s the subject of today’s ACTEC Trust and Estate Talk.
Welcome to the conclusion of our Lecture “Balancing Independence and Vulnerability of Older Adults: What if Granny Wants to Gamble?” This podcast is a special edition of ACTEC Trust and Estate Talk. This is Susan Snyder, ACTEC Fellow from Chicago. Professor Mary Radford, ACTEC Fellow from Atlanta, Georgia presented the annual Trachtman Lecture in front of a live audience at ACTEC’s Annual Meeting in March of 2019. Our previous podcasts included a discussion of elder financial abuse and who commits it, protecting the autonomy of older adults, and understanding what the law can do to protect against abuses. Today she will conclude the lecture with recommendations for lawyers and society in considering an individual’s autonomy, reducing stereotypes of older adults, especially women, and protecting those older adults from elder financial abuse.
What Can Lawyers Do?
So, question number two: what about lawyers? What can we do? Well, we are often the arbiters of the balance between autonomy and vulnerability. We hear about it first. So first and obviously, we need to educate ourselves about the risk factors for financial abuse and not be shy about discussing these with every single client. We might even want to come up with a set of screening questions for our clients. But sadly, much of the elder financial abuse is actually committed, again, by those who are close to the victim through the use of vehicles that lawyers prepare: Powers of Attorney, Wills, Trusts, Deeds for joint ownership of property. So, I know I am preaching to the choir here, but every lawyer should resist the temptation to write a document for someone who is not there. In other words, when your client comes in, your longtime trusted client, and says “Could you just whip up a simple Power of Attorney for my mom?” your answer is “No, I must meet and consult with your mother before I write that document.”
So, the next thing that we lawyers need to do is ramp up our understanding of capacity and all of the various tests that are out there to help people determine the levels of capacity. And then, if we have a client who is exhibiting some beginnings of perhaps a progressive degree disease like Alzheimer’s, we need to put into place mechanisms that will help her in her eventual incapacity and not just garden- variety Trusts and Powers of Attorney. We have to build protections in — trust protectors, family oversight committees — always keeping in mind again, that it’s possible that the person to whom we are giving power may end up abusing that.
We also, as lawyers, need to demand a lot more clarity from our American Bar Association and our state bar associations about how we are supposed to deal with people with diminished capacity. The Model Rule of Professional Conduct that many of you are familiar with is 1.14 (one.one-four) or 1.14 (one.fourteen) (there’s some debate as to what you call it). It’s entitled “Client with Diminished Capacity.” Well, it’s basically, in my mind, unsatisfactory. It says: treat your client, even though the person has diminished capacity, as a normal client in a normal client-attorney relationship unless you can’t and then you may take protective action. Dualistic, a complete one end of the spectrum to the other. And it ignores that whole area of susceptibility, of vulnerability. We could have clients who still have a high level of capacity, but they maybe are grieving over the death of a spouse and being taken advantage of by somebody else. Or one of our clients is an accident victim who needs pain medication, expensive pain medication, and doesn’t understand that buying it online is not necessarily going to produce the maximum results.
So again, we need to ask the American Bar Association, demand that the American Bar Association look at this rule and come up with much more nuanced ways of dealing with people who lack capacity.
We also need to demand, both of state legislators and the bar associations, that they clarify our responsibilities when it comes to reporting elder abuse. Now you remember I told you about mandatory reporters. In some states, lawyers are mandatory reporters. That is so contrary to the basic client confidentiality that’s the hallmark of a lawyer-client relationship that we do need to lobby those state legislators to take lawyers off that list. But on the other end of the spectrum, lawyers need to have the discretion to report abuse without fearing professional discipline to themselves.
So for example, the State of Illinois in its reporting statute basically says that any person may report suspected elder abuse and that, if it is done in good faith with the best interests of the victim in mind, then the reporter is immunized from professional disciplinary action even if the information was otherwise confidential. And the State of Georgia, in our professional conduct rules, allows a lawyer to reveal information that would otherwise have been deemed confidential, if that information is necessary to avoid or prevent substantial financial harm that would result from third party criminal conduct.
So lastly with us as lawyers, we should follow the example that’s been set by the other allied professionals who are dealing with the finances of older individuals and that is that we should ask for one or more “trusted contacts” as they are referred to by the SEC. Ask our clients to give us the name or names of people with whom we can discuss if we start to have questions about the client’s capacity.
What Can All of us in This Room Do?
So, question number three: what can everybody in this room do to help balance autonomy and vulnerability? Well, the first thing that we can do is recognize elder financial abuse for the national epidemic that it is. Mickey Rooney’s testimony in 2014 in front of Congress, facilitated by ACTEC Fellows Bruce Ross and Vivian Thoreen, brought this issue to the forefront, but it still seems to be travelling under the radar screen of many people.
We who are more sophisticated (and hopefully right now are not being victimized), we need to learn about elder financial abuse, and we need to keep abreast of the sophistication of the scammers. So, for example just recently when the new Medicare cards came out, the scammers learned that they could get sensitive information by calling people up and saying, “You can’t get your new Medicare card until you give us your Social Security number.” They have also learned how to change caller ID. So instead of “unknown caller,” it will have the name of a bank or the name of a charity that will pop up when they call. They know how to do these free trial offers with all the tiny hidden print that nobody can find. And these free trial offers of prescriptions of drugs or of supplements end up with a lot of people being tied into very difficult contracts that they can’t get out of. And again, as I mentioned before, the Internet scammers have become so good at hacking into personal computers and scaring people to think that they have to call and give away information.
And we are being bombarded by e-mail too. I know most of you can’t read this, but when I was preparing this speech I got this e-mail from Western Union, not quite so official looking but it basically told me that I had been one of the seven lucky beneficiaries who had been chosen to receive 1.5 million dollars in the United Nations Humanitarian Aid Poverty Alleviation Program. It also told me that I could only get it in increments of 7600 dollars a day. So anyway, needless to say, I didn’t respond.
But the bottom line is that we all know vulnerable adults, people who are out there and we can give them very, very simple advice. Simple advice like, do not give out personal information over the phone, no matter what that caller ID says. Never ever let anybody into your computer, install spyware and install malware, or some advice so simple as just hang up.
We can also familiarize ourselves with the range of services that are available for people who are alone. So, for example, for a relatively modest fee, you can have a professional service rather than the drug addicted son, handle your bill paying and you can use a ride sharing service, rather than the drug addicted son, to get you to your medical appointments. Some companies now offer prepaid credit cards that can be set up to basically disable certain kinds of transactions and at the same time give these individuals who have the cards a modicum of financial freedom. The other thing that we need to remember is modern technology is making it easier for people to live alone, but those who are alone again are the more likely ones to be targeted. So sometimes, just staying in touch is enough.
But what about that other lurking danger? We talked about protecting more, now let’s talk about protecting autonomy. How can we fight the skyrocketing onslaught of elder abuse, but at the same time make sure we don’t jeopardize the freedom of granny? If she has capacity, if she can afford it, her freedom to gamble. Well basically, this overprotection revolves around something that I have already mentioned and that is that every single, almost without fail discussion of elder abuse, discussion of elder financial abuse assumes that elders are all the same. But what we need to remember is that all of those statistics like the ones I threw out at you, have got another side to them. So, for example if I tell you again, that 1 in 10 individuals aged 65 and over have Alzheimer’s, that means 9 out of 10 don’t. If I tell you that 48 percent of women aged 75 and older are living by themselves, that means the other half are not. The other half are engaging with others. In fact, trends from the 1990s indicate that the percentage of older women who are institutionalized is actually going down. And another issue that’s important for us to remember is yes, our children are boomerang children. In other words, they come back as adults to live with us. But the good part of that is that now many older women are in fact living in multigenerational households rather than by ourselves.
So how do we start? Well, we start by something that sounds pretty funny or simple, but that is excising from our vocabulary certain words like “old maid, dowdy, old hag, blue haired, little old lady, old codger and over the hill.” Now it’s tempting to put “old coot” on this list, but then I read on the AARP website this definition of a coot. “A coot is a tough, adaptable water bird. It can fly and swim; can you?” Love it. But the stereotypes are out there.
So, what’s wrong with that? Why should we attempt to eliminate all this stereotyping? Well, more and more psychological studies are illustrating that stereotyping has lasting negative effects on those people who are the victims of it. A Canadian study in 2018 bombarded the control group with several negative stereotyped images depending upon their race, their gender, their age and a number of other things. And they found that not only did these people have immediate negative reactions, but that they became later, over time, more aggressive. They exhibited a lack of control and they started making less and less wise decisions. Now on the other end of the spectrum, in a 2014 study the participants who were aged 60 and older were exposed to subliminal positive age stereotypes. And this happened over a four-week period. Not surprisingly, these people indicated over time that they had greater self-esteem and decreased levels of anxiety about aging. But what was really impressive is that these individuals showed more positive health results than another group that had been engaged in an exercise program for six months.
So again, it’s important that we flip the stereotypes. Recent studies are showing that positive attitudes toward aging quicken recovery from severe disability, shorten hospital stays and even increase longevity. So hand in hand with these negative stereotypes come the negative generalizations about age and these are generalizations that both the scammers and the people who are trying to fight the scammers are using all the time. And again, generalizations are not basically wrong, but they tend to be the place, the refuge for people who don’t want to look deeper and try to figure out what is the truth behind this generalization.
So, before I wrap up, I am going to quickly just look at three age-based generalizations and then some of the studies that flesh those out. First generalization, older people, particularly older women are depressed and unhappy. Okay? This might explain why scammers bombard older women with products that are going to renew their youth and their happiness or with relationships that are going to bring joy back into their lives.
Well, researchers are just beginning to look into whether this is true. There was a 2010 study by Stony Brook University that showed that yes, in fact, emotional health, emotional happiness does go down, but then it starts back up again about age 60. But my favorite study is a 2017 UK study that proclaimed that women on the whole are generally unhappier than men until they reach the age of 85. So, the psychologists were asked to ponder why is that so and they concluded because so many women are widowed at that point. I am not going to say anymore – so much for that.
Okay, generalization number two, older people, particularly older women, lack the ability to make sound decisions. Now again, I have mentioned some studies as recently as 2009 that have led us to believe that that very possibly is true. But again, MetLife in 2011 or 2013 did a study called Healthy Brain, Healthy Decisions and this added more nuance to the earlier studies because it indicated that many of the people who were used in those early studies had dementia. So of course their decision-making was going to be impaired, but this study said that for the average individual who is age 65 or older, strategic learning capacity and the conscientiousness of one’s decisions increase with age.
So, there was a Harvard study that talked about the effect of aging on the brain and on decision- making. It said these physical changes that are the changes in the brain enable the aging brain to become better at detecting relationships between diverse sources of information. Capturing the big picture and understanding the global implications of specific issues. Perhaps this is the foundation of wisdom.
Robert Frost expressed the same view but a little bit more eloquently. He said:
I think young people have insight. They have a flash here and a flash there. It’s like stars coming out of the sky in the early evening. However, it is later in the dark of life that you see forms and constellations.
And as to the brains of women in particular, a study published just last month indicates that while many people’s brains do in fact shrink, on average the female brain is about three years younger in terms of that shrinkage than the male brain. So in other words, according to this study, older women tend to score better than men of the same age on tests of reason, memory and problem solving.
So, our last generalization, number three: older people are less creative and less able to learn new things, otherwise known as “can’t teach an old dog new tricks”, okay? This is persistent in our society. The generalization is that youth and creativity and mental flexibility are reciprocally related. And the opposite of that, of course, is that old people are in a rut. They can’t learn anything new.
So, why is this dangerous, first of all, and why is it relevant to my discussion today? Well first of all, it’s dangerous because it has both internal and external consequences. Internally again, people are internalizing the concept that they can’t learn anything new, so they don’t try. They don’t engage after retirement and all of the many activities that will keep them socially involved, that will keep them healthy, they basically just say I am too old to do that.
So, the external connection is a little bit more complex. So, bear with me here. Externally again, this notion that older people are not creative causes many influential industries, when they are looking to hire to advertise for “dynamic, new age, progressive” workers — otherwise known as young workers. And in some agenciess, in some industries like ad agencies for example, more than 60 percent of the employees are aged 25 to 44 and only 5 percent are old over age 50. In fact, the ad agency has been referred to as a “Peter Pan industry” that has ageism on steroids.
So, these younger hip workers come in and saturate the media, again with the stereotypes about age including “youth equals beauty.” And this saturation gives fraudsters a very powerful tool for selling their most notorious product, the anti-aging product. Basically, the product that’s going to make you 10 years younger, renew your skin, an ancient beauty secret. And I am all for these things if they work, but basically the FBI says that the vast majority of these are not only fraudulent, but that many of these contain arsenic, beryllium and cadmium — all of which are carcinogens — along with high levels of aluminum and dangerous levels of bacteria from sources such as urine. Yeah, okay. So, to comprehend the danger here we only need to think back to the last decade of the Botox scam that left many victims with burns and swelling and in some cases even poisoned by botulism. So again, these hip workers, these youth culture industries are feeding stereotypes. We have all seen a version of this ad: “I have fallen and I can’t get up.” Okay? This is the older person in the eyes of America. Feeble, frail, in need of protection.
So why not replace these ads with ads like these from two United Kingdom department stores. The lady in the magenta cape is in an Harvey Nichols advertisement. Harvey Nichols is the department store. They are celebrating the 100th anniversary of Vogue and she’s 100 years old. And look at the lady in the blue hair. Isn’t she gorgeous?
So basically, again we have got an industry that is feeding the stereotype. So, we have to ask the question, well, are they right? Is in fact it true that older people are less creative? And the studies are saying exactly the opposite. First of all, there are lots of obvious exceptions. Benjamin Franklin was 78 when he invented the bifocal lens. Frank Lloyd Wright was 91 when he completed designing the Guggenheim Museum. Giuseppe Verdi wrote the opera Falstaff at the age of 85. And somebody familiar to many of you, Anna Marie Robertson, otherwise known as Grandma Moses, started painting at the age of 75 and continued doing so almost up until her death at 101.
One interesting thing that is coming out of these studies is that in fact the aging brain more closely resembles the so-called creative brain. In our poem again, Jenny Joseph mourns the strictures of her current life, but it’s current middle aged life. And she says she longs for the day when she can go out in my slippers in the rain and pick flowers in other people’s gardens and learn to spit. So, it is exactly this type of fearlessness and lack of inhibition that is now more and more being associated with creativity. So, in other words, aging does bring a thinning of that portion of the brain that governs self-conscious awareness. But scientists are saying that that also is very likely to be seen in the creative brain.
And in addition, scientists are saying that we older people tend to be more distractible. It sounds like we’re doddy, but no, what they are discovering is that this trait called cognitive inhibition aids creativity. The opposite of cognitive inhibition or disinhibition is basically cognitive control. And that’s the ability to stay focused and to complete tasks. Well, this is great in terms of our day-to-day lives, in our day-to-day activities, but when we are cognitively disinhibited, then we look at all of the information that’s around us and this enhances our ability to detect patterns and to approach problems in a novel manner and to reach solutions by relying on broad associations performed from diverse bits of information. So, in other words, the research concludes that reduced cognitive control in older adults may boost creativity and their ability to solve problems with insight.
I realize that my comments today have kind of bounced between two parallel universes. We have the universe of the woman in red who is perhaps demented, vulnerable, alone, frail. And then we have the confident woman in purple. The woman who is facing life with joy and with all sorts of optimism, and we have to, I hope, learn to think about all of our lives in parameters other than age. Remember, young people have fantasies too. If a 25-year-old male decided that he was going to skip work so he could build his fantasy football team and then invest some money in making sure they won, would we institutionalize him? Of course not. Of course not.
So, in conclusion, we definitely do need to face head-on the reality of elder financial abuse. But we need to frame the threat not as to the elders themselves, but as to those who are vulnerable, not to those who have reached a certain age. We need to protect the many older women who are alone, but part of that protection must be guarding the autonomy of our aging population. We might and often need to remind ourselves that, for many women, aging isn’t a descent into madness, but rather it’s a loosening of the restraints of middle age and a loosening of the filters that permeated their lives when they were young. And the fact that the filters have worn down doesn’t necessarily mean that the individual needs to be protected from herself.
So, in short, sometimes older women simply want to spend their pensions on brandy, lots of it. They want to eat sausages by the pound instead of seven servings of fruits and vegetables a day. They want to wear terrible shirts and grow fat instead of wearing age-appropriate clothing and counting their calories. And sometimes, we older women simply want to wear purple with a red hat that doesn’t match. Thank you.
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