Financial Abuse of Elderly Adults
| Publication year | 1994 |
| Pages | 1077 |
| Citation | Vol. 23 No. 5 Pg. 1077 |
1994, May, Pg. 1077. Financial Abuse of Elderly Adults
Joan's financial records were in shambles, her bank accounts and investments were depleted, and her home was in foreclosure when her children discovered the fraud. The nephew who had exploited her was long-lost again. Joan, a sixty-eight-year-old widow, was too embarrassed to press charges, and the district attorney was unwilling to prosecute.
Months earlier, a sympathetic attorney listened as the nephew explained that Joan was not paying her bills on time, her checks were bouncing and she could not remember her investments. Her children lived in another state. The lawyer helped him become a joint tenant on Joan's investment accounts and credit cards and drafted a durable power of attorney granting the nephew broad powers as her agent.
Joan was the latest victim of a growing crisis: financial abuse of the elderly and disabled adults. This article explores a 1991 Colorado law that streamlines a citizen's ability to report this problem and suggests steps attorneys should take to prevent financial abuse of elderly adults. While this article refers only to elderly adults, many of the points are applicable to all at-risk adults, a group which is broader and defined in the statute.
The Colorado legislature adopted CRS § 26--3.1--101, effective July 1, 1991, urging specified individuals to report elderly abuse, including financial exploitation, to the county department of social services. The statute defines "exploitation" as the illegal or improper use of an at-risk adult's resources for another person's profit or advantage.(fn1) An "at-risk adult" is any individual at least eighteen years of age who is susceptible to mistreatment and lacks sufficient understanding to make responsible decisions regarding his or her affairs.(fn2)
Although forty-three states mandate reporting of abuse, Colorado is one of seven states that merely urge certain individuals to report abuse. Any person may report suspected mistreatment, but the following Colorado professionals are specifically urged to report such abuse: physicians, nurses and other medical personnel, social caseworkers, police and fire workers, nursing home personnel, bankers and court-appointed guardians and caseworkers.(fn3) Attorneys are not included as a reporting class, although, as explained below, the Colorado Rules of Professional Conduct may require reporting.
The Colorado Department of Social Services provides a toll-free, recorded message detailing how to report elder abuse, at (800) 773--1366. Reports of abuse should be made to the county department of social services or, if after hours, to the local police department. The receiving agency must prepare a written report within forty-eight hours after the abuse was reported, including the name and address of the at-risk adult and his or her caretaker; the at-risk adult's age; the nature of the injury and condition likely to lead to mistreatment; and other pertinent information.(fn4) The receiving agency must then forward the report to the district attorney and to the local law enforcement agency within twenty-four hours.(fn5)
Any person who makes a report, other than a perpetrator, is immune from civil or criminal liability unless the report is false or made in bad faith or in reckless disregard of the truth.(fn6) The reports must be kept confidential by the receiving agencies. The name and address of the informant, caretaker or the at-risk adult may be disclosed only when authorized by a court for good cause.(fn7)
The agency receiving the report must formally investigate the abuse charge and conduct a face-to-face interview with the alleged victim.(fn8) If warranted, the county department of social services can initiate protective services and petition the court for the appointment of a guardian or conservator, despite the elderly person's objections.(fn9) The statute requires that only the least restrictive protective services should be provided.(fn10)
The following are common fact patterns that may indicate elder financial abuse:
1) the elder person is being exploited by a relative, friend or caregiver whom he or she trusts and depends on for basic needs;
2) a recent acquaintance---on whom the elder person has come to rely to-tally---expresses gushy, undying affection for the new, wealthy "friend";
3) the elder person complains about once having money, but does not seem to have much anymore;
4) although having adequate financial resources, the elder person is living well below his or her means;
5) large withdrawals are made from the elder person's bank account, and checks are beginning to bounce;
6) an eviction or foreclosure notice arrives, but the elder person recently owned the house;
7) the elder person has signed papers but does not realize what they were for, or does not understand why a meeting has been scheduled with the attorney, or has recently signed a will, apparently lacking the testamentary capacity required to make one;
8) the elder person's caretaker is evasive about financial arrangements or asks only financial questions, not questions about care.
However, not all cases of financial abuse involve bad intent or fraud. Common examples include the reluctant caretaker who abuses the elder person out of passive neglect,(fn11) or the well-meaning relatives who may be impoverishing the elder person in order to qualify him or her for Medicaid.
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