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Celene GogertyAssistant Polk County Attorney
Elder Abuse:What you need to know
October 2, 2014
Note: Copyrighted materials used in this presentation are for educational purposes only pursuant to 17 U.S.C.
Section 107
Overview
Part I: The Problem
Part II: The Law
Part III: The Response
Part I: The Problem
Prevalence & underreporting Why are seniors susceptible? Risk factors Types of financial exploitation Outcomes of financial exploitation
Part I: The Problem
Prevalence
Studies say:
Financial exploitation may bethe most common form
of elder abuse
“Under the Radar: New York State Elder Abuse Prevalence Study” 2010
Prevalence
47% of people with dementia who are at home are
mistreated
(this study didn’t even ask about financial abuse)
Aileen Wiglesworth, Laura Mosqueda, Ruth Mulnard, Solomon Liao, Lisa Gibbs, William Fitzgerald, Screening for Abuse and Neglect of People with Dementia; Journal of the American Geriatrics Society, Vol. 58 Issue 3, March 11, 2010; http://www.centeronelderabuse.org/files/mp3/caregiving_interview.mp3
Prevalence
Studies say:
Around 7 % of elders abused
Pillemer K., Finkelhor D. The prevalence of elder abuse: a random sample survey. Gerontologist 1988;28:51-7Acierno, R., Hernandez-Tejada, M., Muzzy, W. & Steve, K. (2009) Final Report: National Elder Mistreatment Study (National Institute on Justice)
Prevalence
Studies say:
3.5% to 5.2% of elders financially exploited
“Under the Radar: New York State Elder Abuse Prevalence Study” 2010
Pop Quiz
Most frequent:
a) Child Abuseb) Domestic Abusec) Elder Abuse
Prevalence
Each year,
.09% of kids abused
.05% of women abused
7% of elders abusedUS Census 2010 ,US Department of Justice, US Department of Health and Human Services, NCEA
Abuse underreported
Iowa 65+ 450,000
3434 mandatory reports
> 1% of elder population
US Census 2010; Iowa Department of Human Services 2011
Underreporting
2010 NY study –
44x cases go unreportedvs. cases reported
Why would a victim underreport?
Ashamed Fear of a nursing home Not aware of support
resources Don’t know how to access
services
Johnson, Kelly, “Financial Crimes Against the Elderly” Office of Community Oriented Policing Services, Guide No. 20
Why would a victim underreport?
Close ties to the offender Don’t want offender punished Feel they are partially to
blame Cognitively impaired Overwhelmed Afraid
Why would a provider underreport?
Victims deny Uncertain about reporting
procedures Uncertain about laws &
resources Abuse was subtle
L Kennedy RD. Elder abuse and neglect: the experience, knowledge, and attitudes of primary care physicians. Fam Med 2005;37:481-5.
What is the cost?
Elder abuse almost
quadruples nursing home placement
Lachs. M. et al., Adult Protective Service Use and Nursing Home Placement, There Gerontologist (2002) 42 (6): 734 – 739
What is the cost?
Victims of mild abuse have
300% increased risk of dying
compared to non-abused in the 3 years after abuse
Lachs, MS, Williams, CS, O’Brien S, Pillemer, KA, Charlson ME. The mortality of elder mistreatment. JAMA 1998;280: 428-32
What is the financial cost?
No one knows – not studied
US household net worth
$53.1 trillion About 1/3 of it held by 65+
Miller, Mark, “Older people struggle with financial decisions”, Secondact.com, August 18, 2011
Two types of financial crime
Consumer fraud
Financial exploitation
Types of financial exploitation
“The Leech”
Types of financial exploitation
Plain old theft “Borrowing” money Denying services/care to conserve
funds Disposing of property w/o permission Cashing ss/pension checks w/o
permission Misusing debit/credit cards Giving victim’s money to
family/friends Forcing victim to sign over property
Tactics of financial exploiters
Tactics of financial exploiters
Use joint bank accounts Deed/title transfers Use power of attorney Use victim’s SSN to obtain credit Mortgage on victim’s home Use power as conservator
Offender characteristics – financial exploitation
Significantly younger than their victims
Three general types: adult relatives, professional caregivers, close friends or other persons of
trust
Warning signs of financial exploitation
New friend expresses sudden interest Caregiver has no visible means of
support Caregiver is overly interested in
finances Caregiver concerned about cost of
care Bills are not being paid Victim is isolated by caregiver Victim cannot explain their finances Signatures don’t match on the
checks Confused victim w/ caregiver @ bank
Outcomes of exploitation/fraud
Victim cannot afford meds, utilities, food
Victim goes on Medicaid to cover costs
Victim unable to choose their end of life care
Life savings are gone
Why are the elderly susceptible to exploitation?
Trust their family, care providers Gave financial authority away Capacity impaired by dementia,
etc. Afraid of being put in nursing
home Reluctant to get family “in
trouble”
Part II: The Law
Financial Exploitation of a Dependent Adult
Iowa Code 235B
Elder Abuse Civil petition
Iowa Code 235F
Dependent Adult Abuse
vs.Elder Abuse
“Dependent Adult” means…
• Adult• Unable to protect themselves
or obtain services or meet their own needs
• As a result of a physical or mental condition which requires assistance from another
“Dependent Adult” means…
Vulnerable because of medical condition
Dependent Adult?
Dependent Adult?
What if they don’t want help?
“It’s just a flesh wound!”
“Dependent Adult” means…
• Adult• Unable to protect themselves
or obtain services or meet their own needs
• As a result of a physical or mental condition which requires assistance from another
“Dependent Adult Abuse”:Financial Exploitation
• Using or misappropriating
• Funds, property, medications
• With intent to deprive• Benefits someone else• Without informed
consent of victim• Caretaker is
responsible for exploitation
“Caretaker” means…
• anyone• responsible for
providing protection, care or custody
• even if they are acting out of the “goodness of their heart”
Informed Consent
Nature of transaction/course of conduct
Disclose all material risks Probability of risk Available alternatives Answer all questions satisfactorily Probably needs to be in writing Presumes victim is competent
Dependent Adult Abuse Criminal Penalties
Over $100: Felony
$100 or less: Misdemeanor
Theft
Take possession or control of property
Misappropriate property in trust Obtains by deception Possesses stolen property Passing bad checks
Theft Criminal Penalties
$1000 or over Felony Under $1000 Misdemeanor
Other criminal offenses
Obtaining a Rx Drug by Fraud Assault/Harassment Theft, Fraud, & related offenses Forgery Neglect of a Dependent Person
Elder Abuse Civil petition
Iowa Code 235F
235F civil petition
Protects “vulnerable elder”
60+
Unable to protect themselves from abuse
As a result of mental/physical condition or advanced age
235F civil petition
“Financial exploitation”
KnowinglyBy undue influence, deception,
coercion, fraud, or extortion
235F civil petition
“Financial exploitation”
Obtain control or uses/divertsAssets of vulnerable adultWhile standing in position of
trust/confidence
235F civil petition
“Position of trust or confidence”
DOESN’T APPLY TO:Attorneys, banks, insurance agents,
securities agents or real estate agents
235F civil petition
Can be filed by substitute petitioner
235F civil petition
Emergency, temporary & permanent orders
235F civil petition
Remove perpetrator from homeAlternate housingReturn fundsProhibit transfers/use
Who is stealing?
EVERYONE
Joint accts/Deeds/Authorized Parties
May not have the right to take the property
Intent is key Why is the
suspect on the account
Look at the history
Joint accts/Deeds/Authorized Parties
Just to be clear…
Even if on a joint account, doesn’t mean both can take the money
Joint accts/Deeds/Authorized Parties
Victim have capacity to consent?
Under duress? Undue influence?
Duress/Undue influence
Duress: imminent threat of serious injury
Undue influence: Act of overpowering the will by
abusing the trust and confidence of victim
Mental capacity
Dementia or other chronic conditions UTI, substances, or temporary
conditions Brain injury Must have capacity to make decision
Mental capacity presumed?
Citizens State Bank v. RuebelIowa Court of Appeals, July 27, 2011
Citizens State Bank v. Ruebel
We do not agree with Citizens that a financial institution is exonerated “…from any responsibility to assure that any aging Iowan who guarantees a substantial debt for another is competent to understand the nature and the breath of the transaction.”
Conservatorship: ward’s ability to contract
A ward can’t contract unless court specifically authorizes.
Iowa Code Section 633.637
Fiduciary Duties
Must:Act in good faith on the principal’s behalfAvoid any act of self-dealingOnly act as authorized by the courtWard cannot give “okay”Must provide all material facts to principal
If court does not expressly allow it, they cannot do it
Part III: The Response
Teamwork approach
Teammates DHS/DIA Law Enforcement County Attorneys Medical providers/care providers Advocates/social workers Financial institutions Citizens/neighbors SDM The victim
Can I report?
Can voluntarily call DHS, even if not mandatory reporter
Can call law enforcement
What gets reported to DHS?
Must be:1. “dependent adult”2. “abuse”
and3. by a “caretaker”*
*unless self neglect
Criminal outcomes
Prison or jail time Probation Victim impact statement at
sentencing No contact order Restitution
Additional DHS protections
DHS Emergency Protective Orders
If abuse exists (even if self-inflicted)
Immediate threat Victim can’t consent to services Can only be requested by DHS
Emergency Protective Orders
Provide services Removal Suspend POA authority Suspend
guardian/conservator Appoint
guardian/conservator
Emergency Protective Orders
No contact orders Order abusers out of victim’s
home Freeze accounts Stop abusers from removing
victim or committing them
Emergency Protective Orders
Temporary Leads to guardianship/conservator
hrgs
Civil Elder Abuse Petitions
Iowa Chapter 235F
Private cause of action Can be initiated by
guardian/conservator or “other interested person”
Similar to civil DA petition
Iowa Chapter 235F
Physical abuse Sexual assault Neglect Financial Exploitation
Iowa Chapter 235F
Move Restraining order Suspend powers Freeze out financial exploiters Can’t agree not to notify govt One year – can be extended
If you don’t report it…
What happens?
The abuse continues
Conclusion“If we all stand strong together and speak up, we can begin to take the necessary steps to end the cycle of elder abuse.
If elder abuse happened to me, Mickey Rooney, it can happen to anyone.”
March 2, 2011
Contact:
Celene GogertyAssistant Polk County Attorney222 Fifth AvenueDes Moines, IA 50309(515) [email protected]
