Mandatory Elder Abuse Reporting for Oregon Lawyers Mark

Mandatory Elder Abuse Reporting for Oregon Lawyers Mark Johnson Roberts Deputy General Counsel Oregon State Bar Amber A. Hollister, General Counsel

Attorneys’ Abuse Reporting Duties ELDERS CHILDREN MENTAL ILLNESS/ DEVELOPMENTAL DISABILITY LONG-TERM CARE RESIDENT

Oregon’s Changing Demographics • Over 50, 000 Oregonians turn 65 each year. • Oregonians have 15 expected “healthy” years beyond age 65. • About 600, 000 people last year; about 900, 000 in 2020. • In 2030, an estimated 20 percent of Oregonians will be 65 or older.

Elder Abuse Reporters Physicians, Dentists, Optometrists, Chiropractors, and Nurses Audiologists and Speech Pathologists Police Officers and Firefighters Department of Human Services and Oregon Health Authority Workers Owners and Employees of Adult Foster Care Facilities Clergy, Social Workers, Psychologists, Counselors, and Psychotherapists Physical, Speech and Occupational Therapists Senior Center Workers and Information and Referral or Outreach Workers Members of the Legislative Assembly Attorneys

Legislative Purpose “The Legislative Assembly finds that for the purpose of preventing abuse, safeguarding and enhancing the welfare of elderly persons, it is necessary and in the public interest to require mandatory reports and investigations of allegedly abused elderly persons. ” ORS 124. 055

Reported Abuse in Oregon 40, 000 35, 000 30, 000 25, 000 20, 000 15, 000 10, 000 5, 000 0 201 1 2014 ü Reports: Over 38, 000 ü Almost 33, 000 adults ü Investigations: 18, 185 ü More than half living in the community ü Over 4, 000 in licensed settings ü Findings of abuse: 4, 544 (4, 208 victims)

Where does abuse occur? 66% at home 34% care facility

Your Elder Abuse Reporting Duty You must report elder abuse if you have Contact with an Elder or an Abuser and Reasonable Cause to Believe that A person 65 or Older Has Been Abused, UNLESS an exception applies. This duty exists 24 hours a day, 7 days a week.

Contact

What is Contact? A touching or meeting; association or relationship Need not be to be linked to abuse BUT there must be physical or associational contact Receiving information in a public meeting about someone is not sufficient (AG opinion) Telephone or email contact? Can be before or after the abuse or the disclosure

Reasonable Cause

What is Reasonable Cause? Any reasonable suspicion of abuse should be reported. Reasonable suspicion is more than a hunch. It requires an ability to point to articulable facts based on the totality of the circumstances. Your obligation to report does not depend upon whether abuse actually occurred

What is Abuse?

Financial Exploitation v Wrongfully taking* the property of an elderly person Alarming an elderly person by a threat to take property v v Misappropriating money from any account (EVEN JOINT) Failing to use income or assets effectively for support and maintenance of person v *“including, but not limited to, deceit, trickery, subterfuge, coercion, harassment, duress, fraud, or undue influence” (OAR 411 -020 -0002(1)(e))

Abandonment or Neglect v Desertion for any period of time v Failure to provide basic care or services v May be active or passive (OAR 411 -020 -0002(1)(b)(A)(i) v Religious exception, ORS 124. 095

Verbal Abuse Threat of significant harm Derogatory or inappropriate names, insults, verbal assaults, profanity, ridicule Harassment, coercion, threats, intimidation, humiliation, mental cruelty, inappropriate sexual comments Victim’s comprehension immaterial (OAR 411 -020 -0002(1)(d)(B)(i))

Physical Abuse Physical injury caused by other than accidental means, or apparently inconsistent with the explanation given for it. Willful infliction of physical pain or injury Includes force-feeding and all physical punishments (OAR 411 -020 -0002(1)(a)(B)(ii)) Presumed to injure the non-responsive (OAR 411 -020 -0002(1)(a)(C))

Sexual Abuse • • • Enumerated sex crimes Sexual contact without consent Sexual harassment Sexual exploitation Sexual contact with (non-spouse) employee of a paid facility or caregiver BUT NOT with the paid caregiver themselves

Seclusion & Restraint Involuntary seclusion for convenience or discipline Wrongful use of a physical or chemical restraint

Warning Signs Unexplained injury or one that doesn't fit the explanation given for it Elder not permitted to speak for themselves or without the presence of others. Being extremely withdrawn and non- communicative or non-responsive. Unpaid bills, overdue rent, utility shut- off notices

2014 Substantiated Abuse

Exceptions to Reporting

Exceptions: Certain Client Confidences Attorney-Client Privileged under ORS 40. 225 (OEC 503) OR Information communicated during representation that is detrimental to client if disclosed (reconciles RPC 1. 6 duty)

[information relating to the representation of a client] Lawyer Confidences—RPC 1. 6 A/C Privileged Likely Detrimental Secrets Embarrassing

A/C Privileged [Likely] Detrimental Reporting Never Required Secrets Embarrassing Reporting Always Required

May I Report? Yes, if: A/C Privileged [Likely] Detrimental Reporting Never Required q Informed Consent q Implied Authorization q Client Intends to Commit Crime q Prevent Death or Injury

Exception: Spiritual Treatment Voluntary Through prayer Recognized church Duly accredited practitioner

How to Report

Immediately = without delay To DHS or law enforcement Oral report required Give as much as information as possible Explain allegation of abuse Reporting Hotline: 1 -855 -503 -SAFE or call DHS Branch Offices

Report Should Include … Names and addresses Nature and extent of abuse Explanation given for the abuse Cause of abuse and identity of perpetrator.

Behind the Scenes Screening Investigation and Evaluation (Substantiated, Unsubstantiated, Inconclusive) Follow up with Reporter Possible Law Enforcement Involvement

Community-Based Complaint Outcomes (2013) (~8000 complaints) 2013 Outcomes Incidence Risk reduced 673 Victim declined intervention 442 Issue resolved 429 Referred to District Attorney 369 Accepted services 235 Entered care setting 223 Guardian / Conservator appointed 112 Victim deceased 56 Moved out of the area 42 Services not available 35

Immunity & Anonymity Immunity Anonymity • Report made in good faith • Reasonable grounds • Anonymous reports accepted but not preferred

Consequences Class A violation (fine) Failure to perform duties of office Tort liability Not generally an ethics violation

Hypothetical No. 1 You are representing Pat, a 69 year old woman, in a dissolution. You notice that there are large withdrawals from Pat’s savings account. Pat explains that her niece Jane has been taking care of her for the past year, and that she writes Jane regular checks to help pay for groceries. The checks total $30, 000. You share this information with Pat and she is shocked that the number is so high. You know that Pat has been experiencing some mild dementia and is under the care of a doctor. Pat is adamant that she loves Jane and doesn’t want to do anything about it. Do you have a duty to report elder abuse?

Hypothetical No. 2 At a hot yoga class, your yoga buddy Sam mentions that she is worried about her 71 -year-old mother, Sally. Sam explains that Sally is at home recovering from a knee replacement. Sam visited Sally yesterday and she had not bathed for two weeks and complained she had missed several doctor’s appointments. Sam’s sister, Amanda, is being paid about $750 a month by the state to take care of Sally, but Sam thinks Amanda may be using the money to improve her shoe collection. You remember meeting Sally at a yin yoga class a few months ago, prior to her surgery. Do you have a duty to report?

Hypothetical No. 3 Your neighbor Jack approaches you while you are raking leaves on a beautiful fall day. Jack is concerned that his brothers are bilking his father John for free vacations and new cars. Jack explains that his father has been despondent after the death of his wife of 50 years, and seems to have lost all of his zest for life. Jack says he is upset because he feels like his family is taking advantage of his father when he is mired in grief. Do you have a duty to report elder abuse?

Mark Johnson Roberts Deputy General Counsel Oregon State Bar 503. 431. 6363 1. 800. 452. 8260 x 363 mjohnsonroberts@osbar. org