By
Margaret K. Dore, Esq., MBA
The Voice of Experience, American Bar
Association
Volume 25, No. 4, Winter 2014
I graduated from law school
in 1986. I first worked for the courts and then for the United States
Department of Justice. After that, I worked for other lawyers, and then, in
1994, I officially started my own practice in Washington State. Like many
lawyers with a new practice, I signed up for court-appointed work in the
guardianship/probate context. This was mostly guardian ad litem work. Once in
awhile, I was appointed as an attorney for a proposed ward, termed an “alleged
incapacitated person.” In other states, a guardianship might be called a
“conservatorship” or an “interdiction.” A guardian ad litem might be called a
“court visitor.”
My Guardianship Cases
Most of my
guardianship cases were straightforward. There would typically be a elderly
person who could no longer handle his or her affairs. I would be the guardian
ad litem. My job would be to determine whether the person needed a guardian,
and if that were the case, to recommend a person or agency to fill that
role.
My work also included private pay cases with moderate estates.
With these cases, I would sometimes see financial abuse and exploitation. For
example, there was an elderly woman whose nephew took her to the bank each week
to obtain a large cash withdrawal. She had dementia, but she could pass as
“competent” to get the money. In another case, “an old friend from 30 years
ago” took “Jim,” a 90 year old man, to lunch. The friend invited Jim to live
with him in exchange for making the friend sole beneficiary of his will. Jim
agreed. The will was executed and he went to live with the friend in a nearby
town. A guardianship was started and I was appointed guardian ad litem. I
drove to the friend’s house, which was dilapidated. Jim did not seem to have
his own room. I asked him if he would like to go home. He said “yes” and got
in my car. He was not incompetent, but he had allowed someone else to take
advantage of him. In another case, there was a disabled man whose caregiver had
used his credit card to remodel her home. He too was competent, but he had been
unable to protect himself.
In those first few years, I loved my
guardianship cases. I had been close to my grandmother and enjoyed working with
older people. I met guardians and other people who genuinely wanted to help
others.
But then I got a case involving a competent man who had been
railroaded into guardianship. The guardian, a company, refused to let him out.
The guardian also appeared to be churning the case, i.e., causing conflict and
then billing for work to respond to the conflict and/or to cause more conflict.
I have an accounting background and also saw markers of embezzlement. I tried
to tell the court, but the supervising commissioner didn’t know much about
accounting. She allowed the guardian to hire its own CPA to investigate the
situation, which predictably exonerated the guardian. The guardian had many
cases and if what I said had been proved true, there would have been political
fallout. There were also conflicts of interest among the lawyers.
At
this point, the scales began to fall from my eyes. My focus started to shift
from working within the system to seeing how the system itself sometimes
facilitates abuse. This led me to write articles addressing some of the
system’s flaws. See e.g., Margaret K. Dore, Ten Reasons People Get Railroaded
into Guardianship, 21 AM. J. FAM. L. 148 (2008), available at
www.margaretdore.com/pdf/Dore_AJFL_Winter08.pdf;
Margaret K. Dore, The Time is Now: Guardians Should be Licensed and Regulated
Under the Executive Branch, Not the Courts, WASH. ST. B. ASS’N B. NEWS, Mar.
2007 at 27-9, available at
http://maasdocuments.files.wordpress.com/2013/08/dore-the-time-is-now-ashx.pdfThe
MetLife Studies
In 2009, the MetLife Mature Market Institute
released its landmark study on elder financial abuse. See
www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf
The estimated financial loss by victims in the United States was $2.6 billion
per year.
The study also explained that perpetrators are often family
members, some of whom feel themselves “entitled” to the elder’s assets. The
study states that perpetrators start out with small crimes, such as stealing
jewelry and blank checks, before moving on to larger items or coercing elders to
sign over the deeds to their homes, change their wills or liquidate their
assets.
In 2011, Met Life released another study available at
www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf,
which described how financial abuse can be catalyst for other types of abuse and
which was illustrated by the following example. “A woman barely came away with
her life after her caretaker of four years stole money from her and pushed her
wheelchair in front of a train. After the incident the woman said, “We were so
good of friends . . . I’m so hurt that I can’t stop crying.”
Failure
to Report
A big reason that elder abuse and exploitation are
prevalent is that victims do not report. This failure to report can be for many
reasons. A mother being abused by her son might not want him to go to jail.
She might also be humiliated, ashamed or embarrassed about what’s happening.
She might be legitimately afraid that if she reveals the abuse, she will be put
under guardianship.
The statistics that I’ve seen on unreported cases
vary, from only 2 in 4 cases being reported, to one in 20 cases. Elder abuse
and exploitation are, regardless, a largely uncontrolled problem.
A
New Development: Legalized Assisted Suicide
Another development
relevant to abuse and exploitation is the ongoing push to legalize assisted
suicide and euthanasia in the United States. “Assisted suicide” means that
someone provides the means and/or information for another person to commit
suicide. If the assisting person is a physician who prescribes a lethal dose, a
more precise term is “physician-assisted suicide.” “Euthanasia,” by contrast,
is the direct administration of a lethal agent with the intent to cause another
person’s death.
In the United States, physician-assisted suicide is legal
in three states: Oregon, Washington and Vermont. Eligible patients are
required to be “terminal,” which means having less than six months to live.
Such patients, however, are not necessarily dying. One reason is because
expectations of life expectancy can be wrong. Treatment can also lead to
recovery. I have a friend who was talked out of using Oregon’s law in 2000.
Her doctor, who did not believe in assisted suicide, convinced her to be treated
instead. She is still alive today, 13 years later.
Oregon’s law was
enacted by a ballot measure in 1997. Washington’s law was passed by another
measure in 2008 and went into effect in 2009. Vermont’s law was enacted on May
20, 2013. All three laws are a recipe for abuse. Onw reason is that they allow
someone else to talk for the patient during the lethal dose request process.
Moreover, once the lethal dose is issued by the pharmacy, there is no oversight
over administration. Even if the patient struggled, who would know? [See e.g.,
http://www.choiceillusion.org/2013/11/quick-facts-about-assisted-suicide_11.html]
Here
in Washington State, we have already had informal proposals to expand our law to
non-terminal people. The first time I saw this was in a newspaper article in
2011. More recently, there was a newspaper column suggesting euthanasia “if you
couldn’t save enough money to see yourself through your old age,” which would be
involuntary euthanasia. Prior to our law being passed, I never heard anyone
talk like this.
I have written multiple articles discussing problems with
legalization, including Margaret K. Dore, "Death with Dignity”: What Do We
Advise Our Clients?," King Co. B. ASS’N, B. BuLL., May 2009, available at
www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm;
Margaret K. Dore, Aid in Dying: Not Legal in Idaho; Not About Choice, 52 THE
ADVOCATE [the official publication of the Idaho State Bar] 9, 18-20 (Sept. 2013)
available at
www.margaretdore.com/pdf/Not_Legal_in_Idaho.pdf
My Cases Involving the Oregon and Washington Assisted Suicide
Laws
I have had two clients whose parents signed up for the lethal
dose. In the first case, one side of the family wanted the father to take the
lethal dose, while the other did not. He spent the last months of his life
caught in the middle and traumatized over whether or not he should kill
himself. My client, his adult daughter, was also traumatized. The father did
not take the lethal dose and died a natural death.
In the other case,
it's not clear that administration of the lethal dose was voluntary. A man who
was present told my client that the father refused to take the lethal dose when
it was delivered (“You’re not killing me. I’m going to bed”), but then took it
the next night when he was high on alcohol. The man who told this to my client
later recanted. My client did not want to pursue the matter
further.
Conclusion
In my guardianship cases, people were
financially abused and sometimes treated terribly, but nobody died and sometimes
we were able to make their lives much better. With legal assisted suicide, the
abuse is final. Don’t make Washinton’s mistake.
Margaret K. Dore (
margaretdore@margaretdore.com)
JD, MBA, is an attorney in private practice in Washington State where assisted
suicide is legal. She is a former Law Clerk to the Washington State Supreme
Court and the Washington State Court of Appeals. She worked for a year with the
U.S. Department of Justice and is president of Choice is an Illusion,
www.choiceillusion.org, a nonprofit
corporation opposed to assisted suicide and euthanasia.
