CRIMINAL PROSECUTION FOR FINANCIAL EXPLOITATION OF THE ELDERLY – THE SQUEAKY WHEEL GETS THE OIL
“It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.” — Hubert H. Humphrey
It is a sad fact that most people who commit financial exploitation against the elderly get away with it. Often, the exploitation becomes so easy that the exploiter does it more than once and against more than one victim. Their actions become increasingly bolder, and with few exceptions, their greed leads them to steal larger sums of money from each new victim. This is why they must be prosecuted to the full extent, as there WILL be another victim.
Unfortunately, financial crimes against the elderly continue to escalate at an alarming rate and, more often than not, are never prosecuted. Because exploitation is misunderstood, those who witness it either do the wrong thing or nothing at all to prevent it. Witnesses often fail to act because they mistakenly believe that confused victims don’t have capacity but must be treated as if they did. When a reporting officer does not properly recognize an exploitation crime, they make a common mistake of classifying the crime as a civil matter because the incapacitated victim signed legal documents transferring assets or because consent was apparently given. Attorneys tend to shy away from pursuing criminal investigations on behalf of their clients because they couldn’t justify charging elderly or mentally infirm victims exorbitant fees. How could an attorney claim that an elderly client chose to retain his or her services at a specified rate per hour and then insist in the same breath that the client doesn’t have the capacity to make financial decisions?
Even more alarming, as my recent experience in attempting to have a home health aide arrested for theft from an elderly client (detailed below) revealed, is the general feeling of helplessness or careless attitude expressed by several law enforcement officers – why bother, even if one arrest is made, there’s a thousand more waiting in line to prey upon the elderly. What is unclear is whether the increasing number of elderly exploitation cases is the cause or the result of this kind of thinking.
My recent experience in seeking prosecution of a home health aide proved difficult and was frustrated by this seemingly disinterested attitude among law enforcement officers. My client, 80+ years of age, had recently lost her husband of more than fifty years. Her memory was on the decline and her recent loss left her alone, depressed, and unfortunately, vulnerable. Her only adult son resided outside of the State of Florida. Prior to our involvement, the son had terminated the former home health agency and hired a new agency to replace them. The client had come to enjoy the new companionship and company provided by the new home health aides and she grew to trust them. Unfortunately, her trust and increasing level of comfort with the aides are what made her an easy target.
After being retained to assist the client with various matters, we were contacted by a fraud investigator from one of the client’s various financial institutions about some recent suspicious activity in her account. It was learned that one of the home health aides had changed the address on the client’s account to the aide’s own personal address. Thereafter, the aide proceeded to order new checks which were sent to her address, and began issuing checks made out to cash and deposited them into her own personal accounts at the same institution. Initially, the amounts taken were small, between $50 and $100. Once she got away with these amounts, the checks increased in number and amounts, totaling nearly $50,000.00 over a span of a couple of months. These monies remained undetected due to all statements going to the aide’s home address. Local law enforcement was then immediately contacted.
Upon arrival at the client’s home, I was advised that the officers had already arrived and left. After waiting nearly an hour, another officer finally arrived at the scene. Much to my surprise, the officer did not seem concerned that the aide’s personal accounts had been frozen by the bank, or upon her learning of this, may flee, or worse, attempt to make contact with the client. Even more alarming were his statements to myself and the client that the true victim was the bank and that even if he arrested the aide that night, there would be a thousand more to replace her. It became abundantly clear that I would need to build this case myself in order for them to prosecute.
The next day, with the assistance of the bank’s fraud investigator, copies of all financial statements, canceled checks, and deposit slips were obtained, clearly establishing a case of financial theft from an elderly person, in excess of $50,000.00. With this evidence, attempts were made to follow up with the prior night’s reporting officer who, I was advised, had not prepared a report or assigned it a case number. Frustrated, I worked my way up the chain of command, being the “squeaky wheel” one officer had indicated I would need to be to get anything done. As if the standard policy was taken from a script, one officer after another, “there are a thousand others out there” to take her place, and this one arrest would not stop the others, etc., etc. Finally, a lengthy e-mail to the chief resulted in a call back from a detective assigned to the case. I was advised they were going to investigate, but that it would take time and they could not use the records I obtained from the bank, which they have to subpoena on their own.
The following day, less than forty-eight hours after reporting the crime to police, I was informed by the bank that they were receiving calls from the aide, inquiring about her frozen accounts. After receiving no information from the banks, she then attempted to contact the client to arrange a lunch meeting. Now, surely the police would need to get involved, right? Sadly, this was not the case. In fact, several calls to the detective and officers involved, have not been returned for several weeks.
Despite the seemingly hopeless position, I found myself in, I continued my pursuit of charges against this aide. As it turns out, the squeaky wheel does in fact get the oil. Upon further investigation by federal agents contacted for assistance, it was learned that this particular aide may be involved in a much larger criminal network. Investigations are now continuing and based upon our efforts, will likely result in the issuance of several indictments against those involved in this and several other cases involving exploitation of the elderly.
Unfortunately, for millions of other victims, there are thousands of more caretakers, home health aides, and unscrupulous family members ready to prey upon the elderly and vulnerable members of our communities. Unless we arm ourselves with the knowledge of how such crimes tend to occur, by whom they are committed, what preventive measures can be taken, as well as what to do if you suspect someone is being financially exploited, the problem will only worsen. If someone you love has a person in their life, be it friend, family, caregiver, or even a trusted professional and you feel they are taking over that person’s finances or are otherwise abusing the trust given them, contact a professional immediately, such as an elder law attorney, care manager, and local adult protective services agency about your options. The reality is the police and prosecutor’s office will need you to practically build the case for them in order for them to prosecute. Those members of our society in their twilight years, the elderly, will need you to be their voice.