HOW SOME STATES ARE ADDRESSING THE FINANCIAL EXPLOITATION OF THE ELDERLY

The Senate Special Committee on Aging estimates that as many as five million elderly Americans suffer some form of abuse every year. They also think that 84% of elder abuse goes unreported.  Addressing it must involve legislative, social service, and economic experts. Even though  the federal government is taking a strong leadership role in addressing the problem of elder abuse, there are no federal laws in place. This is unacceptable!

I am glad to report that some states have taken some measures to address elder abuse, particularly the financial exploitation of the elderly. I will, in weeks to come, examine any law changes, cases and other states’ measures to protect our elderly. The two states that I have chosen for this week’s blog are California and New Hampshire.

California elder abuse laws including financial abuse laws are covered under Cal. Welfare & Institutions Code §15610.  In California, financial elder abuse laws apply to anyone 65 or older regardless of whether they have any diminished physical or mental capacity.  Financial elder abuse is defined as: when any person or entity “takes, secrets, appropriates, obtains or retains real or personal property of an elder for a wrongful use or with intent to defraud.”  It also includes “assisting” in the taking of any property of someone 65 or older.  The definition of “wrongful use” is: if the person “knew or should have known that this conduct is likely to be harmful to the elder.” While its intended comes from a good place, the law is to broad and vague.  Anyone with any knowledge of law knows the dangers of a law that is broad or vague.  It opens up a can of worms that defeats the purpose of the law.  This law could be applied to:

  1. employed seniors who may have been paid less due to lack of experience;
  2. an elder who accidentally received the wrong change during a purchase or any business transaction; and
  3. other employment matters.

The potential liability is extraordinary.  Hopefully, California will revisit this law and make the necessary modifications.

New Hampshire’s elder abuse statutes are under REV. STAT. § 631:8, Criminal Neglect of Elderly.  New Hampshire’s Attorney General’s Office has established The Elder Abuse and Financial Exploitation Unit (EAU) in the fall of 2006 and conducted its first full year of operation in 2007. The primary responsibility of the Unit is to prevent, investigate, and prosecute crimes involving elderly victims of abuse, neglect and financial exploitation on a statewide basis. The Unit consists of a prosecutor and an investigator. The New Hampshire Attorney General’s Office recognized that there were gaps in the local and state organizations working together on this issue.

The Unit has prosecuted cases involving physical abuse and financial exploitation such as property and identity theft, home improvement fraud, forgery, embezzlement, and fraud involving misuse of an elder’s assets by a fiduciary acting under a guardianship or power of attorney. Successful criminal prosecutions resulted in jail time for many defendants, as well as the recovery of thousands of dollars in restitution for senior victims. In one instance, EAU was successful  in convicting a woman who failed to provide her elderly, disabled mother with the proper care she needed at home that resulted in the mother’s death. EAU also worked with public and private agencies to speak to seniors and others about elder abuse.  New Hampshire is definitely a leader in addressing this growing problem.

This growing problem can only be addressed if people get involved.  Many seniors are losing their lives and savings.  Please report any incidents to the local authorities.  You can find out your elder abuse hotline by visiting www.nccafv.org.

If you have any questions or comments, please feel free to leave them.

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