Tuesday, September 3, 2019

Things to know if you are being investigated by Oregon Adult Protective Services

There is a knock at the door. You answer and find yourself confronted by a representative of Oregon Adult Protective Services (APS). The APS investigator asks if he or she can come in and talk to you about an elder you know. You invite the agent in and you quickly realize that someone has made a complaint to Adult Protective Services accusing you of the financial exploitation of an elder.

In this post, I walk you through what is going on when you are investigated by APS and give some hints as to how to deal with the agency and the investigation.

What is Going On

Adult protective services is a division of the Oregon Department of Human Services. When a complaint is called in alleging the financial or physical abuse of an elder or person with disabilities, APS is obligated to investigate. The agents talk to the elder, if possible, witnesses and the alleged perpetrator. The investigation, once commenced, must be completed within 120 days. At the end of the investigation, the investigator finds that the allegations are "substantiated," "not substantiated" or "inconclusive." 

If the allegations of wrongdoing are "substantiated," the report is passed to the district attorney in the county in which the wrongdoing allegedly took place. The district attorney evaluates the case on the basis of whether there is sufficient evidence and injury to warrant criminal prosecution. If the district attorney decides to prosecute, the accused faces prison time and needs a criminal law lawyer. I am not one of those and do not defend in criminal cases.

In real life, almost none of the substantiated elder abuse reports delivered to the district attorney go any farther than the desk of an assistant DA. To prevail in a criminal case the DA must prove the exploitation beyond a reasonable doubt and the damage needs to be of sufficient magnitude to warrant expenditure of public resources on the case. I can't predict what district attorneys do. They are a mystery to me, but after working in this field for a long time I know that almost none of the substantiated elder abuse findings turn into a criminal prosecution.

If the district attorney does not prosecute then the report by the investigator goes into the super-secret APS file cabinet where nobody can see it unless you go through a whole bunch of complicated legal hoops. I can handle those hoops and get access to the report if it is important enough, but the process is so expensive that I seldom do it.

So Why Should I Care?

If you are being investigated and you know that you will probably not be prosecuted criminally and the report will disappear into the secret cabinet, you might well ask, why do I care? Perhaps you shouldn't, or at least you should not be as upset as the investigator probably made you. There are, however, more troubles that can arise.

Every APS office has a cozy relationship with a couple of lawyers (or professional fiduciaries) in the neighborhood who practice elder law. If The APS is intent upon going after the suspected bad guy the worker can contact the lawyer, give the lawyer the facts of the case, and suggest that the lawyer go after the perpetrator in civil court. The lawyer will file to have a guardian and/or conservator appointed for the allegedly abused elder on the grounds that the elder is being financially abused and is incapable of protecting him or herself. Even though neither the lawyer nor the fiduciary has a prior connection to the family, the courts generally allow this in the interests of protecting elders. The lawyer will nominate his or her favorite professional fiduciary, and when the court appoints a conservator, the conservator will then sue the perpetrator for financial elder abuse. 

The lawyer evaluates these cases on the basis of whether he can make any money from it. The APS investigator is protecting elders and going after bad guys. The civil lawyer who gets the case from the APS investigator is doing it for the money.

When the financial elder abuse case is filed and served, you are in trouble. Although elder financial abuse and financial exploitation are not identical in the law, they are very close. In an elder abuse civil case the plaintiff is allowed to seek triple damages -- triple the amount taken from the elder -- plus attorney fees. The accused, however, must pay his or her own fees no matter what the outcome. Being sued for elder financial abuse is no fun and defending the case is not for amateurs.

Even if you are not sued for elder abuse, the substantiated report in the secret cabinet can cause you a problem if you want to work in elder care or social services. Your background check will bring up the report and you will have some uncomfortable explaining to do.

How does APS operate and what powers does it have?

APS investigators operated largely on bluff and chutzpa?. You have no obligation to speak to an APS investigator and the investigators have no right to enter your home or request documents from you. Under certain circumstances, APS can obtain bank and financial records related to the case, but if you are under investigation you have no obligation to provide the investigator anything. They can, however, be aggressive and persistent, subtly implying that they have powers and legal tools that they, in reality, do not have.

Often when I represent the object of an APS investigation, I contact the APS investigator and make my client available for an interview in my office. In only one out of five cases, is APS willing to come to my office for the interview? I also request that the APS investigator not attempt to talk to my client without me present. Sometimes they agree to this, but they are not required to, and I have had APS workers with police appear at my client's home repeatedly, even after being asked not to do that. The rules that apply to lawyers when it comes to represented parties do not apply to APS.

Although APS can refer a case for criminal prosecution and it can slip the case to its favorite elder law lawyer, APS does not get restraining orders, does not itself file elder abuse civil cases, and rarely pays to have a guardian or conservator appointed. Those are the tools I have. APS does not.

Do you need a lawyer?

Although the APS investigator has a bank of Oregon Department of Justice lawyers backing him or her, the investigator often tells you in all sincerity that you don't need a lawyer. He or she may even intimate that getting a lawyer amounts to a lack of cooperation and makes it more likely the investigation will go against you. Being a lawyer, APS loves me when I am on their side, and hates me when I do defense. The agency is not a big fan of playing fair and evening the odds.

Suggestions for Dealing with APS

It tends to be pretty easy to figure out if you are the alleged perpetrator in the elder abuse complaint. The APS investigator may not say it directly, but you will be able to tell from the tenor and nature of the questions. If it looks like the agency is coming after you, I would suggest the following:
  • Lawyer up. I am not averse to having my clients talk to the APS investigator. I simply think that things go better for the alleged perpetrator if the interview takes place in my office.
  • Don't talk to the APS investigator without your lawyer, in the evening or in your home. 
  • Ask for a written statement of the results of the investigation. APS doesn't have to give you a written determination unless you ask for it.
  • Don't believe that APS can settle a potential civil case or somehow clear you. APS cannot give you a release, settle a case that has not been filed, or agree to make a certain finding if you do certain things. 

And No Matter What, APS is always right

My wife was a social worker before she retired. One morning at breakfast, I opined that social workers were poor sports. She asked, "Why is that?" 

I went on to explain that with other lawyers I litigate the case -- win it or lose it, forget about it -- and go on to the next one. But with the social workers, if they don't win, they remain mad about it for a long time. They seem like poor losers.
My wife looked up from her breakfast and told me, "That's because we are always right."

She nailed it. I have gone through a full trial after which the court ruled that APS got it wrong. The investigator's only response to the ruling was that the court system screwed up again. Once APS makes up its mind about you, no matter how much evidence there is to the contrary, the agency will never admit a mistake or change its mind. Live with it.