Elder Justice Elusive, But Advocates Are Hard at Work Securing It

It has been almost a year since BLM protests rocked the country and drew much-needed attention to the severe lack of justice for people of color in the United States—an intractable problem for which the work is just beginning. The need for racial equity inspired one of ASA’s five pillars (Equity & Justice) and was a running theme to our recent On Aging 2021 conference.

For those who registered but missed the National Forum on Older Adults, COVID-19 and Access to Justice, we highly recommend watching it online. Here’s a brief rundown of what you missed on April 9, but could now view in its entirety.

Paul Greenwood, who spent 25 years prosecuting elder abuse cases in San Diego County, moderated the Forum, and first detailed the type of elder abuse he ran into, the complexity of the issue and how “access to justice for older adults is under threat; we are in for major challenges and elder financial abuse is a virtual pandemic that is on the rise.”

Greenwood spoke of the need to break through the barrier of silence surrounding elder abuse and better train prosecutors and the police to ensure such abuse is never relegated to “civil matter” status. His message to those involved in this work is to “prosecute with purpose, passion and perseverance.”

Panelist and Director of the American Bar Association Commission on Law and Aging Charles Sabatino gave an overview of the concept of access to justice, saying that if an older adult has no knowledge of their rights, they can’t possibly have access to justice. “Are the courts and court proceedings accessible to older and disabled people? Are the environments threatening or safe?” All such matters play into the ability of older adults to gain justice.

‘Older adults’ civil rights are very much alive as an issue, including with the recently debated Equality Act.’

Justice in Aging’s (JIA) Directing Attorney for Equity Advocacy Denny Chan did a quick rundown of civil rights, bringing up Derek Chauvin, voting restrictions and anti-Asian violence. “Conversations about access to justice cannot be divorced from the lived experience of older adults,” said Chan. “We knew that in 2019, but what 2020 has done is to reconfirm those instincts—poverty is racialized, and we must acknowledge systemic racism and discrimination.”

Chan explained progress made on the civil rights front with the Civil Rights Act, Fair Housing Act, Age Discrimination in Employment Act, Americans with Disabilities Act and Section 1557 of the ACA, which prohibits discrimination based on race, color, national origin, sex, age and disability in health programs receiving federal financial assistance. Chan admitted, though, that despite such protections, older adults are commonly discriminated against in employment, on the basis of other identities they hold and in crisis standards of care hospitals sometimes use to triage COVID patients.

But the future holds promise, as Chan says older adults’ civil rights are very much alive as an issue, including with the recently debated Equality Act, as well as renewed attention to systemic inequities.

Where Racial and Elder Justice Intersect

His colleague Vivianne Mbaku, a staff attorney at JIA, addressed the intersection of elder and racial justice, eloquently describing her personal journey exploring a role in the racial justice movement and how to find her place, one that would consider the role of elder justice in the racial justice movement. “When you think of an older adult, who do you see?” she asked. “Do you see a white man or woman with grey hair? I see my late grandfather, who was a vet, a black man, and worked for the United States Postal Service all of his career.”

Black, Latino and LGBTQ elders are less likely to seek out support from social services agencies and the police as they fear repeating racialized encounters they’ve had in the past, she said. Mbaku also spoke of the tricky issues of reporting potential elder abuse in families and a fear of involving the police or losing the support that exists within that same family.

‘Do we want to punish those who commit elder abuse? Yes in theory, but that’s not always what happens.’

The solution, Mbaku felt, lies in restorative justice. “Do we want to punish those who commit elder abuse? Yes in theory, but that’s not always what happens. The most common perpetrators are family members, who are also the source of housing and income. Once you layer the complexities of race and implicit bias you can see where the problems arise,” she said. Bringing all parties to the table to address the issue candidly, as a violation of people and relationships rather than a violation of the law, can remedy the situation and prevent harms.

Seeking Restitution

Later in the Forum Judith Stein, executive director of the Center for Medicare Advocacy, covered gaining proper access to healthcare and the rights of elders and people with disabilities, mentioning that, oddly, there are elder justice issues within Medicare itself, in how it’s worded.

Lori Smetanka, executive director of Consumer Voice shared harrowing tales of what went on in nursing homes during COVID. As older adult safety from the virus was seen as paramount, they were often left isolated in their rooms, unable to leave, even for a shower.

“Some say there were more than 40,000 deaths due to isolation alone,” said Smetanka.

Elders were moved from rooms or even facilities with little notice, one person she spoke with hadn’t left her room in six months. Another stepped outside for some fresh air and wasn’t allowed back in. What Smetanka described was extreme trauma to a vulnerable population.

Meanwhile, more than 30 states enacted immunity legislation on the part of the facility owners, preventing families from gaining restitution.

The panel then switched subjects as Charles Golbert, a judge-appointed Cook County Public Guardian, zeroed in on financial exploitation and all the work he and his staff of 200 have done across the past 10 years to recover $50 million for victimized older adults.

“We’re strong believers in putting elder abuses in the spotlight and we are aggressive about getting publicity for what has happened,” he said.

This Forum provided a window into the daily trauma that can occur in elders’ lives, but the people involved in fighting it are an inspiring group well worth listening to.