What is Financial Elder Abuse?

ELDER FINANCIAL ABUSE

            Law enforcement and elder advocates have recently found that the rate of elder abuse is growing at an alarming speed. People look around and find that the elderly have money, are vulnerable and target them. The desire to punish those who commit elder abuse is reflected in California law and should not go unreported.

Who Is An Elder?

            In the state of California, ‘elder’ is defined as persons 65 years and older (Welfare & Institution Code, § 15610.27). With regards to financial abuse, it is not a requirement that the elder has any diminished physical or mental capacity.

What is Financial Elder Abuse?

            Financial abuse involves the unauthorized use of an elder’s financial resources (funds or property) and results in the elder incurring financial loss due to fraud or other bad faith conduct.

            Financial elder abuse can be both a civil and criminal offence. Civil law defines civil elder financial abuse as when a person or entity does any of the following (Welfare & Institutions Code Section 15610.30):

• Takes, secretes, appropriates, obtains, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both;
• Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use or with intent to defraud, or both; or

Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an by undue influence.

Under the Welfare & Institutions Code, 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’.

            Whereas, criminal financial abuse includes the illegal or improper use of an elder’s financial resources and occurs when a person violates any provision of law proscribing theft, embezzlement, forgery, or fraud or proscribing identity theft (under section 530.5 of the Penal Code), with respect to the property or personal identifying information of an elder.  Furthermore, the person knows or should reasonably know that the victim is an elder.

Who are the Perpetrators of Financial Elder Abuse?

            Perpetrators of financial elder abuse can be caregivers, insurance companies, nursing homes, assisted living facilities, professionals or businesspersons, strangers and family members (including sons, daughters, grandchildren and spouses). There is no requirement to show discrimination based on age or an actual intention to exploit. There is also no requirement to show, in an employment setting, that the elder employee could not make his or her own decisions. Any individual who seeks out an elder with the intent of exploiting them is guilty of elder financial abuse. So long as it is obvious to a reasonable person that the individual is not entitled to the elder’s assets, he or she will be guilty of abuse even in the absence of intent to defraud.

Types of Financial Elder Abuse?

            Abuse of this nature spans a broad spectrum of conduct. It can be as simple as stealing some money out of an elder’s wallet, deceiving an elder to falsely pay money, forging a signature or as sophisticated as fraudulently taking control of an elder’s estate. In an employment relationship, the financial abuse laws would apply broadly and include every payment of wages, employment decisions that would affect wages and termination.

            There are many common examples of financial abuse, they include:

• Scams involving healthcare providers. This can include: (1) Charging for healthcare and not providing it; (2) Overcharging or duplicate billings for medical care or services; (3) Unlawful referral arrangements with other providers or for prescribing certain drugs; (4) Overmedicating or under medicating. Recommending fraudulent remedies for illnesses or other medical conditions; and (5) Medicaid fraud
• Real estate predatory lending elder abuse. This includes, for example, offering a senior citizen a loan when there’s no way he/she can repay it, or locking an elder into a loan with a balloon payment that is impossible to pay. Even if the perpetrator fails to obtain the property it is still possible to charge them with attempted senior fraud.
• Credit card/insolvency elder fraud. This can include (1) Fraudulent promises to repair his/her credit; (2) Offering fraudulent insurance to protect his/her credit cards against unauthorized charges; (3) Using counterfeit checks or debit cards to drain an elder’s bank account; or (4) File for bankruptcy under the victim’s name to avoid paying debts incurred under that name, or to avoid eviction.
• Investment fraud.
• Failure to pay an elder’s upkeep from a trust. For instance, a daughter trustee of her mother’s life estate does not provide enough money for her mother’s monthly upkeep or an abuse of Power of Attorney authorisation.
• Home repair senior fraud. This includes when a perpetrator offers to make home improvements, tree-trimming services, roof repair, paint touch-ups, for example, and either takes the money without performing the work, or doesn’t perform the promised work (or does a substandard job).
• Funeral and cemetery senior fraud. This is when a perpetrator scams or defrauds a senior into paying exorbitant costs for these arrangements or any costs for services that you are not provided.
• Telemarketing/mail/internet senior fraud. This includes soliciting a senior to (1) Donate to fraudulent charity; (2) Pay money to claim an illegitimate sweepstakes prize; or (3) Provide his/her personal information to use that information for unlawful purposes.

            If you believe that you or your loved one is victim of elder abuse, contact an experienced physical and financial elder abuse attorney at The Evans Law Firm. You may also call us at 415-441-8669 or e-mail us at info@evanslaw.com for a free and confidential consultation.