Ask any trust and estate litigator what the fastest rising trend in trust and estate litigation is and they will almost surely answer financial elder abuse. While the perpetrators of financial elder abuse are various, an increasing group of perpetrators are in-home caregivers. The combination of a large aging population in need of care, a desire to avoid the cost and emotional hardship associated with placing an elder in a nursing home, and a lack of family members able to stay at home and care for their related elders, has led to a huge increase in in-home caregivers being hired to care for elders.
Unfortunately, California does not regulate the in-home care industry, leaving consumers prey to individuals with criminal backgrounds who now have access to elders that are highly susceptible to abuse. A 2011 report prepared for the California Senate Rules Committee entitled “Caregiver Roulette: California Fails to Screen Those Who Care for the Elderly at Home” discussed the problem in depth and was highly critical of California’s failure to properly regulate the in-home care industry in the same manner it does nursing homes and other similar care facilities. Specifically, the report concluded that Senate Bill 692 enacted in 2008 providing private employers of in-home caregivers the ability to request Department of Justice checks and criminal background checks was ineffective and rarely used.
While California has failed to act to effectively protect elders from financial abuse perpetrated by in-home caregivers, on July 1, 2011, Napa County became the first California County to implement a law requiring government permits for in-home caregivers. Under the law, those seeking to provide in-home personal care or domestic services must pass a criminal background check and pay for an annual permit. The law applies to anyone (including family members) who is receiving compensation (including room and board) in exchange for caregiving. In just over a year since Napa County began enforcing the law, over 200 caregivers have been issued permits after undergoing background checks.
While Napa County’s law is a good start, it is just that…a start. A recent report by the MetLife Mature Market Institute reported that older Americans lost $2.9 billion as the result of elder abuse in 2011 - a whopping 12% increase from the previous year. California, and other counties within California, would be wise to enact similar laws requiring in-home caregivers to apply for government permits and to undergo background checks. Short of that, the instances of financial elder abuse will continue to rise, as will costly litigation associated with redressing such abuses.
Kevin Rodriguez is an Associate in Hopkins & Carley’s Trust & Estate Litigation department.