Attorney Perspectives of Financial Capacity Among Older Adults
Elizabeth M. Bownes
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Summary

About 5 million U.S. older adults face financial abuse yearly, losing $2.9–$36.5B. A study of 18 attorneys found reliance on experience and interviews, underscoring the need for research and interdisciplinary methods to address it.

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2023

Attorney Perspectives of Financial Capacity Among Older Adults

Keywords financial abuse; financial exploitation; older adults; financial capacity; legal field; thematic analysis; attorneys; assessment methods; experiential knowledge; detection; interdisciplinary work

Abstract

Annually in the United States, around five million older adults fall victim to financial abuse and/or exploitation of some form, losing an estimated $2.9 to $36.5 billion each year (National Council on Aging, 2021). While it is known that financial exploitation is under- detected and underreported, there are few data to explain the process of assessing capacity within the legal field. Using thematic analysis methodology, 18 attorneys with varying levels of elder law experience participated in a semi-structured virtual interview. Specifically, the current study sought to examine how attorneys perceive financial capacity, the typical conditions under which capacity issues are identified, and the protocol followed to address capacity concerns. Using thematic analysis, major and minor themes, as well as subthemes, were identified to explain ways in which attorneys tend to rely on their own experiential knowledge, semi-structured interview and evaluation process, and often longstanding relationships with their clients and/or their families to assess for financial capacity and detect financial capacity or exploitation concerns.

Attorney understanding of financial exploitation was typically limited to family, friend, and/or caregiver perpetrators, though some attorneys cited past issues with financial representatives and/or designated power of attorney as well. Examples of cues included abnormal financial spending and/or requests and suspicious interpersonal relationships or interactions. In regards to assessing financial capacity, attorneys tended to again rely on experiential learning, as well as the use of routine interview questions, typically related to psychosocial and financial background. These findings highlight not only the need for future financial capacity and exploitation research involving attorneys and their older adult clients, but also the importance of increased interdisciplinary work among those in close proximity with older adults and improved policies to make financial capacity assessment and financial exploitation prosecution more feasible for all to obtain.

INTRODUCTION

In recent decades, older adults have experienced financial exploitation at an increasing and alarming rate (Teaster et al., 2012). Various studies report the prevalence of elder financial exploitation ranges from 2.7 percent to 6.6 percent (Deane, 2018). Annually in the United States, around five million older adults fall victim to financial abuse and/or exploitation of some form, losing an estimated $2.9 to $36.5 billion each year (National Council on Aging (NCOA), 2021). This issue has been deemed both a “public health crisis” and “virtual pandemic”, and is likely to be underreported (Acierno et al., 2010; Lachs & Pillemer, 2015; Deane, 2018). In fact, New York’s “Under the Radar” study estimated 44 undocumented incidents involving financial exploitation take place for each reported incident (United States Government Accountability Office, 2011).

To prevent and/or mitigate issues related to financial exploitation, the rights of older adults must be carefully considered. This involves the assessment of one’s financial autonomy, capacity, and competency. However, there are large gaps in data and barriers to empirical research (e.g., older adults who might not realize they are being exploited or are too embarrassed to report), which prevent us from quantifying the enormity of this problem. Previous research calls for heightened sensitivity among non-psychological professionals (finance, law, healthcare) to help detect and assist older adults with a history of financial exploitation, as well as those who are subject to exploitation in the future (Lichtenberg, 2013; Deane, 2018). The U.S. Securities and Exchange Commission called for a reform through the development of an integrated and systemic approach that includes creation of cross-communication and collaboration between the

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Abstract

Annually in the United States, around five million older adults fall victim to financial abuse and/or exploitation of some form, losing an estimated $2.9 to $36.5 billion each year (National Council on Aging, 2021). While it is known that financial exploitation is under- detected and underreported, there are few data to explain the process of assessing capacity within the legal field. Using thematic analysis methodology, 18 attorneys with varying levels of elder law experience participated in a semi-structured virtual interview. Specifically, the current study sought to examine how attorneys perceive financial capacity, the typical conditions under which capacity issues are identified, and the protocol followed to address capacity concerns. Using thematic analysis, major and minor themes, as well as subthemes, were identified to explain ways in which attorneys tend to rely on their own experiential knowledge, semi-structured interview and evaluation process, and often longstanding relationships with their clients and/or their families to assess for financial capacity and detect financial capacity or exploitation concerns.

Attorney understanding of financial exploitation was typically limited to family, friend, and/or caregiver perpetrators, though some attorneys cited past issues with financial representatives and/or designated power of attorney as well. Examples of cues included abnormal financial spending and/or requests and suspicious interpersonal relationships or interactions. In regards to assessing financial capacity, attorneys tended to again rely on experiential learning, as well as the use of routine interview questions, typically related to psychosocial and financial background. These findings highlight not only the need for future financial capacity and exploitation research involving attorneys and their older adult clients, but also the importance of increased interdisciplinary work among those in close proximity with older adults and improved policies to make financial capacity assessment and financial exploitation prosecution more feasible for all to obtain.

INTRODUCTION

Financial exploitation of older adults has increased significantly in recent years. Studies indicate that between 2.7% and 6.6% of older adults experience financial exploitation. Each year in the United States, approximately five million older adults are victims of financial abuse, resulting in an estimated loss of $2.9 billion to $36.5 billion annually. This problem is often described as a major public health crisis and is likely underreported. One study suggested that for every reported case, there are 44 unreported incidents of financial exploitation.

To address financial exploitation, it is essential to consider the rights of older adults. This includes evaluating an individual's financial independence, ability to make decisions, and understanding of financial matters. However, a lack of comprehensive data and research challenges (such as victims being unaware or too embarrassed to report) make it difficult to fully understand the scope of this issue. Prior research highlights the need for professionals in fields like finance, law, and healthcare to be more aware and sensitive to detect and help older adults who have experienced or may experience financial exploitation. The U.S. Securities and Exchange Commission has recommended a comprehensive and coordinated approach, emphasizing better communication and cooperation among different organizations.

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Abstract

Annually in the United States, around five million older adults fall victim to financial abuse and/or exploitation of some form, losing an estimated $2.9 to $36.5 billion each year (National Council on Aging, 2021). While it is known that financial exploitation is under- detected and underreported, there are few data to explain the process of assessing capacity within the legal field. Using thematic analysis methodology, 18 attorneys with varying levels of elder law experience participated in a semi-structured virtual interview. Specifically, the current study sought to examine how attorneys perceive financial capacity, the typical conditions under which capacity issues are identified, and the protocol followed to address capacity concerns. Using thematic analysis, major and minor themes, as well as subthemes, were identified to explain ways in which attorneys tend to rely on their own experiential knowledge, semi-structured interview and evaluation process, and often longstanding relationships with their clients and/or their families to assess for financial capacity and detect financial capacity or exploitation concerns.

Attorney understanding of financial exploitation was typically limited to family, friend, and/or caregiver perpetrators, though some attorneys cited past issues with financial representatives and/or designated power of attorney as well. Examples of cues included abnormal financial spending and/or requests and suspicious interpersonal relationships or interactions. In regards to assessing financial capacity, attorneys tended to again rely on experiential learning, as well as the use of routine interview questions, typically related to psychosocial and financial background. These findings highlight not only the need for future financial capacity and exploitation research involving attorneys and their older adult clients, but also the importance of increased interdisciplinary work among those in close proximity with older adults and improved policies to make financial capacity assessment and financial exploitation prosecution more feasible for all to obtain.

INTRODUCTION

Older adults have been experiencing a concerning rise in financial exploitation in recent decades. Studies show that between 2.7% and 6.6% of older adults are affected. Each year in the United States, about five million older adults become victims of some type of financial abuse or exploitation, resulting in an estimated loss of $2.9 billion to $36.5 billion. This problem is often called a "public health crisis" or "virtual pandemic" and is likely more widespread than reported. One study in New York estimated that for every reported incident of financial exploitation, 44 go unreported.

To help prevent or lessen financial exploitation, it is important to consider the rights of older adults. This includes looking at a person's financial independence, ability to make decisions, and legal competence. However, there is not enough data, and research faces challenges. For example, some older adults may not realize they are being exploited or might be too ashamed to report it. This makes it difficult to fully understand the size of the problem. Past research suggests that professionals in fields such as finance, law, and healthcare, who are not psychologists, need to be more aware of this issue. They can help identify and assist older adults who have been or may be financially exploited. The U.S. Securities and Exchange Commission has asked for changes, suggesting a connected and organized approach. This approach would involve better communication and teamwork among different groups.

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Abstract

Annually in the United States, around five million older adults fall victim to financial abuse and/or exploitation of some form, losing an estimated $2.9 to $36.5 billion each year (National Council on Aging, 2021). While it is known that financial exploitation is under- detected and underreported, there are few data to explain the process of assessing capacity within the legal field. Using thematic analysis methodology, 18 attorneys with varying levels of elder law experience participated in a semi-structured virtual interview. Specifically, the current study sought to examine how attorneys perceive financial capacity, the typical conditions under which capacity issues are identified, and the protocol followed to address capacity concerns. Using thematic analysis, major and minor themes, as well as subthemes, were identified to explain ways in which attorneys tend to rely on their own experiential knowledge, semi-structured interview and evaluation process, and often longstanding relationships with their clients and/or their families to assess for financial capacity and detect financial capacity or exploitation concerns.

Attorney understanding of financial exploitation was typically limited to family, friend, and/or caregiver perpetrators, though some attorneys cited past issues with financial representatives and/or designated power of attorney as well. Examples of cues included abnormal financial spending and/or requests and suspicious interpersonal relationships or interactions. In regards to assessing financial capacity, attorneys tended to again rely on experiential learning, as well as the use of routine interview questions, typically related to psychosocial and financial background. These findings highlight not only the need for future financial capacity and exploitation research involving attorneys and their older adult clients, but also the importance of increased interdisciplinary work among those in close proximity with older adults and improved policies to make financial capacity assessment and financial exploitation prosecution more feasible for all to obtain.

INTRODUCTION

In recent years, more older adults have been victims of financial exploitation. Reports show that between 2.7% and 6.6% of older adults experience this problem. Each year in the United States, about five million older adults lose an estimated $2.9 billion to $36.5 billion due to financial abuse. Experts have called this problem a "public health crisis" because it is likely that many cases are not reported. One study in New York found that for every reported case, 44 others were not documented.

To help prevent financial exploitation, it is important to consider the rights of older adults. This includes looking at their ability to make financial decisions and manage their money. However, there is not enough information or research to fully understand how big this problem is. This is partly because some older adults may not realize they are being exploited or might feel ashamed to report it. Previous research suggests that professionals in fields like finance, law, and healthcare should be more aware of this issue to help older adults who have been or might be exploited. The U.S. Securities and Exchange Commission has called for a new approach that involves better communication and teamwork between these different groups.

Open Article as PDF

Abstract

Annually in the United States, around five million older adults fall victim to financial abuse and/or exploitation of some form, losing an estimated $2.9 to $36.5 billion each year (National Council on Aging, 2021). While it is known that financial exploitation is under- detected and underreported, there are few data to explain the process of assessing capacity within the legal field. Using thematic analysis methodology, 18 attorneys with varying levels of elder law experience participated in a semi-structured virtual interview. Specifically, the current study sought to examine how attorneys perceive financial capacity, the typical conditions under which capacity issues are identified, and the protocol followed to address capacity concerns. Using thematic analysis, major and minor themes, as well as subthemes, were identified to explain ways in which attorneys tend to rely on their own experiential knowledge, semi-structured interview and evaluation process, and often longstanding relationships with their clients and/or their families to assess for financial capacity and detect financial capacity or exploitation concerns.

Attorney understanding of financial exploitation was typically limited to family, friend, and/or caregiver perpetrators, though some attorneys cited past issues with financial representatives and/or designated power of attorney as well. Examples of cues included abnormal financial spending and/or requests and suspicious interpersonal relationships or interactions. In regards to assessing financial capacity, attorneys tended to again rely on experiential learning, as well as the use of routine interview questions, typically related to psychosocial and financial background. These findings highlight not only the need for future financial capacity and exploitation research involving attorneys and their older adult clients, but also the importance of increased interdisciplinary work among those in close proximity with older adults and improved policies to make financial capacity assessment and financial exploitation prosecution more feasible for all to obtain.

INTRODUCTION

Older adults are losing money more and more often because of financial scams. This problem has grown a lot in recent years.

Reports show that about 3 to 7 out of every 100 older adults are victims of these scams. Each year in the United States, about five million older adults lose money this way. They lose anywhere from almost $3 billion to over $36 billion each year.

Experts call this a big problem, like a widespread sickness. Many cases are not reported. One study found that for every case reported, 44 others were not.

To stop these problems, it is important to think about the rights of older adults. This means looking at how they make money decisions and if they are able to understand them. However, it is hard to get all the facts because many cases are hidden. Some older adults do not know they are being tricked, or they feel too ashamed to tell anyone.

Past studies suggest that people in jobs like banking, law, and health care need to be more aware. They can help find and support older adults who have been tricked or might be tricked in the future. The government has asked for a better way to work together to solve this problem.

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Footnotes and Citation

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Bownes, E. M. (2023). Attorney Perspectives of Financial Capacity Among Older Adults. ProQuest Dissertations & Theses.

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