Financial Abuse of the Elderly: Sometimes Unnoticed, Always Predatory

Caution to elders and family members of elders. This happens too often:

Via The New York Times 11/27/15 Elizabeth Olson

It was only after Mariana Cooper, a widow in Seattle, found herself with strained finances that she confessed to her granddaughter that she was afraid she had been bilked out of much of her savings.

Over three years, Ms. Cooper, 86, had written at least a dozen checks totaling more than $217,000 to someone she considered a friend and confidante. But the money was never paid back or used on her behalf, according to court documents, and in early November the woman who took advantage of Ms. Cooper, Janet Bauml, was convicted on nine counts of felony theft. (She faces sentencing on Dec. 11.)

Ms. Cooper, who lost her home and now lives in a retirement community, is one of an estimated five million older American residents annually who are victimized to some extent by a caregiver, friend, family member, lawyer or financial adviser.

With 10,000 people turning 65 every day for the next decade, a growing pool of retirees are susceptible to such exploitation. As many as one in 20 older adults

said they were financially mistreated in the recent past, according to a study financed by the Justice Department.

Traditionally, such exploitation, whether by family, friends or acquaintances, often has been minimized as a private matter, and either dismissed with little or no penalty or handled in civil court.

Even when the sums are large, cases like Ms. Cooper’s are often difficult to prosecute because of their legal complexity and because the exploitation goes unnoticed or continues for long periods. Money seeps out of savings and retirement funds so slowly it draws attention only after it is too late.

Ms. Cooper, for example, wrote her first check, for $3,000, in early 2008, and later gave Ms. Bauml her power of attorney. In early 2012, after Ms. Cooper realized that Ms. Bauml was not going to repay her in time for her to afford a new roof for her house, she told her granddaughter, Amy A. Lecoq, about the checks. She later called the police.

Ms. Bauml maintained that Ms. Cooper gave her money for services she provided as a home organizer or as loans.

Later, testing by a geriatric mental health specialist found that Ms. Cooper had moderate dementia, which showed her judgment had been impaired.

The diagnosis “helped the jury to understand why she would keep signing all these checks to this woman as loans when she was never being paid back,” said Page B. Ulrey, senior deputy prosecutor for King County, Wash., who pressed the case against Ms. Bauml.

The case was challenging in part because Washington State does not have an elder abuse statute, said Ms. Ulrey, who is one of a small but growing number of prosecutors around the country with the specific duty of prosecuting those who take financial advantage of elders, whether it is connected to investments, contracts or other fraud.

As the number of complaints grows, more municipalities are trying to combat such abuse, which is often intertwined with physical or sexual abuse, and emotional neglect.

Some organizations also have set up shelters, modeled on those for victims of domestic abuse. In the Bronx, for example, the Weinberg Center for Elder Abuse Prevention at the Hebrew Home in Riverdale started such a shelter in 2005. Since then, 14 other such shelters have been opened in various long-term care operations around the country to deal with urgent cases of financial abuse.

One such woman, who agreed to talk only if she was not identified by her last name, stayed at Riverdale after she was threatened with eviction. A neighbor discovered that the woman, a 73-year-old widow named Irene, had not paid her rent in six months because relatives living with her had been withdrawing money from her account and leaving her short of funds.

“I had to leave with one small suitcase,” Irene said. “They were abusing me.”

She was later able to move to federally subsidized housing away from the abusive situation.

To help elders in financial and other distress, more municipalities, using federal funds, are training law enforcement officers, prosecutors, and social workers how to spot the sometimes subtle signals that may indicate someone has been swindled.

“We see many cases where someone convinces an older person to give them the power of attorney, and then uses that authority to strip their bank accounts, or take the title of their home,” said Amy Mix, a lawyer at the AARP Legal Counsel for the Elderly, which works with the Adult Protective Services division in the District of Columbia government as well as the city’s police department.

In the most recent fiscal year, 934 cases of abuse were reported in Washington. About one-quarter of those were financial exploitation, according to Sheila Y. Jones, chief of Adult Protective Services. “And they involve millions of dollars,” she said.

But many cases are not counted officially because older people are reluctant to pursue legal remedies against relatives and friends. Louise Pearson, 80, a retired government computer analyst, declined to press charges against a security guard in her building who had befriended her and later obtained $30,000 from her savings.

“There was something about him you just had to take to,” Ms. Pearson said.

When she finally asked Malika Moore, a social worker at Iona Senior Services in Washington, for some assistance with her shaky finances, the social worker realized that the situation was serious.

One clue, she said, was that, “When I opened her refrigerator, it was empty.”

Ms. Moore was able to get Ms. Pearson home-delivered meals, and after the bank confirmed that she was missing savings, help to find a conservator to handle her money. Ms. Pearson, who now lives in a housing complex for the elderly, said, “I get money whenever I need it, and more than I did before.”

In Seattle, Ms. Cooper’s granddaughter expressed determination to educate others on the warning signs of financial abuse. “I wish we had known some of the red flags,” she said.

But even though she’s a trained social worker, it’s not surprising she missed the signs. She was deeply involved in caring for her mother, Ms. Cooper’s daughter, who was fighting cancer and died shortly before the period when her grandmother was writing the checks.

“Our family saw her regularly,” Ms. Lecoq said, “but we just didn’t see indications of what was going on.”

In retrospect, she might have been more suspicious with “my grandmother suddenly having a new friend and a friend who got so close so fast.”

Once Ms. Lecoq and her husband, John, recognized what had happened, they pushed for prosecution. Ms. Ulrey, the prosecutor, said the case required medical tests and search warrants for both the victim’s and the suspect’s financial accounts.

Ms. Cooper was unable to recover her lost money and worries about how long she will be able to pay for her retirement home. “She’s ashamed and embarrassed and feels guilty,” Ms. Lecoq said of her grandmother. “But I tell her: ‘You were a victim of a crime.’”

To help older people, families and friends should be on the lookout for some of the warning signs of financial abuse. These include not being able to cover normal expenses; paying for excessive, unexpected gifts to others; and signing over power of attorney or transferring property to unrelated individuals. 

To learn more about protecting the savings of the elderly and helping them avoid being exploited financially, these publications are worth reading: 

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Son Must Pay for Mother’s Care Under Filial Responsibility

A Pennsylvania appeals court holds that a son is required to pay for his mother’s care under the state’s filial responsibility law even though the mother does not have outstanding medical bills and the son claims he had an abusive childhood. Eori v. Eori (Pa. Super. Ct., No. 1342 WDA 2014, Aug. 7, 2015).


Joseph Eori is attorney-in-fact for his mother, Dolly Eori, who requires 24-hour care.  Ms. Eori lives with Mr. Eori, and her medical and caregiving expenses exceed her income.

Mr. Eori filed a complaint on behalf of his mother seeking filial support from his brother, Joshua Ryan. Mr. Ryan objected, arguing, among other things, that his mother was not indigent because she did not have outstanding medical bills and that he had an abusive childhood. Pennsylvania’s filial responsibility law negates the support obligation if the parent abandoned the child for a 10-year period. The trial court granted the petition for support, and Mr. Ryan appealed.

The Pennsylvania Superior Court affirms, holding that Mr. Ryan is required to provide support to his mother. The court agrees with the trial court’s decision that the filial responsibility law doesn’t require a showing of unpaid bills or liabilities to justify a claim. In addition, the court affirms the trial court’s ruling that while Mr. Ryan may not have had an ideal childhood, there was no evidence that his mother abandoned him.

For the full text of this decision, click here.

Seeking long-term care? How your local Ombudsman can help…

    • OMBUDSMAN: What is the Program/Service   Via www.aging.ny.gov

      Educating, empowering and advocating for long-term care residents. The Ombudsman Program is an effective advocate and resource for older adults and persons with disabilities, who live in nursing homes, assisted living and other licensed adult care homes. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life.
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      The Ombudsman Program advocates for residents by investigating and resolving complaints made by or on behalf of residents; promoting the development of resident and family councils; and informing government agencies, providers and the general public about issues and concerns impacting residents of long-term care facilities.

      Mandated by the federal Older Americans Act, in New York the Ombudsman Program is administratively housed at the State Office for the Aging (NYSOFA), and provides advocacy services through a network of 36 local programs. Each local Ombudsman Program is lead by a designated ombudsman coordinator who recruits, trains and supervises a corps of volunteers, currently more than 1000 statewide. These certified volunteers provide a regular presence in nursing homes and adult care facilities are available to help residents with questions and concerns about their care and living conditions.

      Conversations with the ombudsman are confidential and residents or other persons can register a complaint anonymously. Ombudsmen handle a wide variety of complaints involving quality of care, residents’ rights, discharge, medications, lost or stolen items, dietary issues, and quality of life concerns. Ombudsmen can also provide information and consultation about how to choose a facility and how to pay for long-term care.

    • Who is Eligible?

      While the program serves all residents of licensed long-term care facilities regardless of age.

    • Is There a Cost?

      Ombudsman services are provided free of charge.

READ ABOUT PROTECTING YOUR ASSETS FOR YOUR FAMILY WHILE GETTING THE CARE YOU NEED

An Attorney Who Advised Against Life Estate While Conducting Medicaid Planning Is Liable for Legal Malpractice

An Attorney Who Advised Against Life Estate While Conducting Medicaid Planning Is Liable for Legal Malpractice

Medicaid Planning

A Massachusetts appeals court rules that an attorney who negligently advised a client that obtaining a life estate in property would hurt her chances of qualifying for Medicaid damaged the client because deprivation of a property right is actual damage. Brissette v. Ryan (Mass. Ct. App., No. 14-P-919, Oct. 29, 2015).

Marie Brissette and her husband consulted attorney Edward Ryan about protecting their house if they eventually needed Medicaid. Mr. Ryan advised them to transfer the house to their children and reserve a life estate, which they did. Thirteen years later, they wanted to sell that house and buy another house. Mr. Ryan advised them not to retain a life estate in the new property because it would make them ineligible for Medicaid and Medicaid could obtain a lien on the property. The Brissettes sold their house and used the money to buy a new house in the name of two of their children.

After her husband died, Mrs. Brissette sued Mr. Ryan for legal malpractice, arguing that due to his incorrect advice not to obtain a life estate on the new property, she had no legal right to it, which subjected her to the risk of being forced to move out by her children. A jury found Mr. Ryan liable for $100,000 in damages. Ryan appealed and the judge entered a judgment n.o.v., ruling that Mr. Ryan’s negligence did not cause Mrs. Brissette any actual harm because her children testified that they would never evict her. Mrs. Brissette appealed.

The Massachusetts Court of Appeals reverses and reinstates the jury’s verdict, holding that deprivation of a property right is actual damage. According to the court, “the fact that because of [Mr.] Ryan’s negligence [Mrs. Brissette] has no right to alienate the property during her lifetime by, for example, renting or mortgaging it, means that she did not obtain something of value that she otherwise would have. ”

TO READ THE TOP 8 MISTAKES IN MEDICAID PLANNING CLICK HERE.

For the full text of this decision, go to: http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/14p0919.pdf

Be sure to consult with an experienced Medicaid Planning Attorney before making any planning decisions.

Questions? Email me at medicaid@RaphanLaw.com

Regards,

Brian