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) 286-3417Celene.gogerty@polkcountyiowa.gov