Defending Accountants In Elder Care/Elder Abuse Litigation (Part 3)
by Arthur V. Pearson

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Problems for the Defense

Claims and litigation in this area come with problems that are unique, due to the age of the parties and witnesses, the highly charged emotional context in which these claims often arise, the involvement directly or indirectly of government over-sight agencies, the view judges and jurors have about the elderly and those who care for them, the unspoken agendas of the people behind the claim, and the causes of action often alleged.

AGE

By definition, elder care claims often involve parties and witnesses who are of advanced age and who may be ill, infirm, or questionably competent to testify under oath. If it is not the elder for whom the engagement was created, it may be that elder's roommate in the care facility or assisted living situation, relatives, or heirs who are themselves elderly, or friends of the elder and others who may be compromised to some extent by their age.

WITNESS ISSUES

Preservation of testimony: Counsel cannot know when a witness will suddenly die. Even the healthiest of us cannot be assured to be alive for a known period time. As we get older and into our seventies, eighties, and beyond, the risk of death becomes greater. All-important witnesses must be identified very early on and their testimony preserved as quickly as possible. Video taped depositions should be used where possible.

Competency: Again, due to the age of parties or witnesses, the question must always be addressed whether the witness is competent to testify. Even after a deposition is taken, a party may seek to bar its use based on evidence that the witness was incompetent at the time the deposition was taken. To avoid these evidentiary problems, steps should be taken when planning depositions to create a foundation for the witness's competency.

Failure of recollection: Often elderly witnesses, even when fully competent, do not have the best memories. To the extent possible, documents, photographs, and other materials that have memorialized events should be available to use at depositions to refresh the recollection of the witness.

Setting the scene: Many elderly witnesses are confused about why there is litigation, who is suing whom, or why they are being asked to testify. It can be very helpful to explain to the witness, in advance of the deposition, what the matter is about and who the parties are.

THE EMOTIONAL PLAYING FIELD

Generally: Many contend that elders do not enjoy the same level of respect and deference that they had in years gone by. While that may be true, our society still seeks to act protectively for the elderly (or at least thinks it should), and views those who take advantage of the elderly as morally deficient. Because of this potential taint of the defendant, these cases do not have a "business as usual" flavor of most professional malpractice cases.

The Courts: When defending a CPA who has been accused of doing some-thing improper to an elderly person, counsel will often find himself or herself defending a client for whom the court may feel disdain. Judges will rarely admit to that bias, but it nevertheless exists to some degree.

The Jury: Juries have no professional requirement to be unbiased, as does the judiciary. They will come to your matter with the ingrained response that the elderly should be protected, even against their own had decisions, which may make it easier for the plain-tiff to sell their case. Thus, a trial by jury may not always he the preferred choice for a defendant.

GOVERNMENT AGENCIES

We know there are several agencies that may get involved in elder abuse charges. Adult Protective Services, probate court investigators, public conservators appointed by the court, police agencies, etc. Many of these agencies are not objective arbiters of the facts, but rather are there to protect the elderly, and come to the task with that bias. They can and do write inflammatory reports, accept as true statements of witnesses who are obviously biased, reach and publish conclusions adverse to the defendant, and create a flavor in a case very harmful to the defense, before defense counsel is retained.

PUBLIC CONSERVATORS

Many states have a process in which an incompetent elder will have their financial and personal affairs assumed by a court appointed conservator. These conservators are private contractors who are often teamed with counsel experienced in this area to represents the interest of the elder. They have the powers similar to those possessed by unrestricted attorney-in-fact or trustee. They are compensated out of the assets of the conservatee's estate. Should they feel there is a potential claim against any one who served the elder prior to their appointment, they have enormous financial incentive to commence and pursue such a claim. Their ostensible mission is to recoup assets for the conservatee that were taken or dissipated by the defendant. A noble endeavor. However, they get paid by the hour, often at very high rates, to pursue these claims.

UNSPOKEN AGENDAS

The mix of the elderly and infirm who own substantial assets, competing groups of heirs who are more concerned about their inheritance than the day-to-day welfare of their prospective benefactor, outside CPAs involved in the elder's affairs who may be viewed as "affiliated" with a particular group of heirs, and uneven testamentary dispositions, create an inflammatory situation. The CPA involved in elder care services may find himself or herself in litigation that has less to do with the services he or she rendered or the amounts charged, and more to do with a strategy to compromise a potentially damaging witness (the CPA) in a will contest, or a fight over who will be the conservator, or simply to remove someone who acts for the elder and is "too close" to one group of heirs. It is this kind of family conflict, of which the CPA may be wholly unaware, that is a potential trap for CPAs providing elder care services. It is problematic because it is unseen, and therefore more difficult to protect against.

COVERAGE ISSUES

These cases will frequently contain allegations of intentional misconduct in order to obtain attorney's fees, punitive damages, damage multipliers, etc. Most insurance policies exclude intentional acts from coverage. Defense counsel will frequently be in the position of having to exercise extreme care in representing the insured so as to fully discharge counsel's duty to protect the insured, avoid further complicating the coverage issues, and conduct a vigorous defense.

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