Chapter 22 - § 22.7 • STATE REPORTING PROGRAMS AND CRIMINAL SANCTIONS FOR FINANCIAL EXPLOITATION
| Jurisdiction | Colorado |
Colorado has taken an interest in protecting its elder residents from financial exploitation and abuse by creating a program to receive and investigate reports of financial exploitation and abuse of elders and by imposing heightened sanctions on criminal conduct involving elder victims.
§ 22.7.1—Investigative and Reporting Roles of State and County Agencies
In Colorado, any person can report any incident of potential financial exploitation of an elder, among other acts of mistreatment of other at-risk persons, to a local county department with jurisdiction or to a law enforcement agency.92 The reports are urged but not mandatory.
However, certain professionals are now mandated to report known or suspected abuse or exploitation of elders to law enforcement within 24 hours of the observation, belief, or discovery. Those professionals include health-care providers such as doctors, nurses, social workers, and pharmacists; bank and other financial institution personnel; and nursing care agency staff and others specified that work with the vulnerable elder population.93 Willfully failing to report known or suspected abuse or exploitation by a mandatory reporter is a class 3 misdemeanor. Immunity from suit and liability is provided for those who report in good faith, except immunity is not provided if the reporter is also the perpetrator of the abuse.94 Additionally, knowingly filing a false report of abuse or exploitation of an elder is a class 3 misdemeanor offense.95
The Colorado legislature further provided that the law enforcement agency receiving the report of financial exploitation or other form of abuse of an elder shall complete a criminal investigation when appropriate.96 The law enforcement agency shall, to the extent possible, acquire the name, age, address, and contact information of the at-risk elder; the person making the report; the caretaker, if any; the name of the alleged perpetrator; the nature and extent of the elder's injury, whether physical or financial, if any; the nature and extent of the condition that required the report to be made; and any other pertinent information.97 Within 24 hours of receiving the report, the law enforcement agency shall provide notification of the report to the district attorney's office and the county human services department.98
Other individuals that are not mandatory reporters may also report known or suspected crimes. Additionally, one may report concerns of neglect of an at-risk individual in need of services to the Adult Protective Services agency. When a report is received by Adult Protective Services regarding mistreatment, self-neglect, or exploitation of an elder, the agency will cooperate with law enforcement to coordinate an appropriate response to ensure the best protection for the elder.99 The investigation should, at a minimum, include a "face-to-face interview" with the elder. If the appropriate county agency determines that mistreatment has occurred, then response actions should include the "provision of protective services."100
"Protective services" include, but are not limited to, receiving and investigating reports of mistreatment or self-neglect; providing casework and counseling services; arranging for the coordination, delivery, or monitoring of services, including medical care for the victim's physical or mental health needs; protecting the elder from mistreatment; assisting the elder with applications for public benefits; referring the elder to community service providers; and initiating probate proceedings.101
§ 22.7.2—Prosecuting Financial Exploitation as Crimes by Law Enforcement Agencies
The state may consider criminal charges against the abuser. Criminal charges that might apply in instances of financial exploitation of elders include theft, forgery, security fraud, and criminal exploitation. Criminal exploitation occurs when one knowingly uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk elder of the use, benefit, or possession of anything of value.102 For certain crimes, such as theft and exploitation, the Colorado legislature has augmented the normal penalties associated with these crimes when the victim is over 70 years of age or otherwise "at-risk."103 If a person commits theft from an elder and the person is either in a position of trust to the elder, the person is aware that the victim is 70 years of age or older, or an element or portion of the offense occurs in the presence of the elder, then the offense is a class 5 felony if the value of the item or items taken is below $500, and a class 3 felony if the value of the item is $500 or greater.104 In contrast, if the victim of a theft is not 70 years of age or older, the value of the item taken must be $2,000 or greater before it becomes a felony offense.105
While criminal penalties are, in theory, a strong weapon against the financial exploitation of elders, these offenses are complex, with many challenges. Victims may have cognitive impairment or be incapacitated and unable to testify. An elder victim's health or cognitive ability may decline during the course of the investigation or prosecution. Victims frequently are afraid, embarrassed, and fear losing their independence if they report abuse. Many may rely on the person who is abusing or exploiting them. Elder victims feel responsible for the abuser's getting arrested and charged criminally. They often believe that the offender will be sentenced to prison and they feel as if it is their fault or worry about disruption in the family if the abuser is prosecuted. Many elders do not realize that most financial offenders are eligible for probation and conditions may be imposed to address the issues that led to the offender's behavior. Courts have the ability to order monitored sobriety, drug or alcohol treatment, mental health treatment, and intensive supervision as conditions of probation. Many elder victims who learn that a prison sentence is not automatic are relieved and more willing to participate in the investigation. Law enforcement and prosecutors work to address the concerns of elder victims and empower them to feel comfortable disclosing the abuse.
Successful prosecution may depend on careful reconstruction of financial records showing a pattern of behavior that is inconsistent with the elder's needs or situation (i.e., 20 years of dance lessons, extensive computer or technical skills training for a retired person, or a 30-year annuity payout for a 90-year-old person).106 Until recently, law enforcement agencies and police departments were not well equipped to investigate and prosecute these kinds of cases. However, with the heightened awareness of the epidemic of elder abuse, law enforcement, prosecutors, and the legislature have placed a greater priority on protecting victims of elder abuse, investigating allegations of elder abuse, and prosecuting offenders. Many law enforcement agencies have realized the need to have specialized investigators or liaisons to work with the senior community and specialize in working with elder victims. As the needs of the community change and as resources allow, many departments are working to increase resources for the investigation of elder abuse. Some agencies may appoint an officer to work as a liaison to the senior community while others may create units dedicated to investigating crimes against elders.107
With the passage of SB 13-111 in 2013, the legislature mandated that a training curriculum be created and implemented for peace officers to recognize and address incidents of abuse and exploitation of at-risk elders. After January 1, 2015, every law enforcement agency must have at least one officer or deputy who has successfully completed the class.108 Although this training was mandated by the legislature in 2013, the recognition of the importance of identifying and investigating elder abuse began at least five years before that in Colorado. Around 2008, a grant was received that created a team of professionals from the Boulder District Attorney's office, Boulder Sheriff's Department, and Boulder Police Department to train every law enforcement officer in the jurisdiction about the dynamics of elder abuse and how to successfully investigate elder abuse cases. The Twentieth Judicial District Attorney's Office, Boulder County, has a Community Protection Division that prosecutes the physical and financial abuse of elder cases. In 2010, the First Judicial District Attorney's Office, serving Jefferson and Gilpin Counties, created
the first dedicated elder abuse unit in the state, with a team of professionals dedicated to prosecuting elder abuse cases. The team currently consists of two dedicated prosecutors, an investigator, a victim specialist, an elder abuse prevention specialist, and a forensic accountant. As recently as 2016, the Eighteenth Judicial District Attorney's Office created a team of prosecutors and an investigator to prosecute elder abuse through their special victims and economic crime units. Other agencies are following suit in determining how best to respond to the issues of elder abuse and successfully prosecute offenders.
With the heightened awareness of elder abuse and the increased focus on training law enforcement officers through mandatory reporting, the number of cases investigated and successfully prosecuted is on the rise. It remains difficult to draw conclusions statewide on the increase in elder abuse...
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