Virginia Lawyers Weekly VA Lawyers Weekly
On March 2, 2011, a 90-year-old Mickey Rooney testified before the U.S. Senate Special Committee on Aging about his experience as the victim of financial elder abuse. After suffering for years, Rooney sued his stepson whom he accused of intimidating and bullying him, depriving him of medication and food, while also draining his financial accounts. The actor told the Senate committee, “Over the course of time, my daily life became unbearable….I felt trapped, scared, used and frustrated. But above all, I felt helpless. For years I suffered silently, unable to muster the courage to seek the help I knew I needed.” (1) Rooney noted to the Committee the complexity of elder abuse due to the fear of losing love and affection from family members. Yet for far too many older Americans, Rooney’s story is a daily reality.
Elder abuse is a growing epidemic. The National Center on Elder Abuse and the Administration on Aging estimate that over two million seniors are abused each year. Here in Virginia, the Virginia Department of Adult Protective Services receives over 12,000 reports of elder abuse a year with over 60 percent requiring intervention.(2) However, knowing an exact number of cases is very challenging as only a fraction of victims report their abuse.
Federal definitions for elder abuse first appeared in the 1987 Amendments to the Older Americans Act.(3) The Act defines elder abuse as the willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain or mental anguish including deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.(4) However, financial elder abuse refers to the illegal or improper use of an older adult’s funds, property or assets. Studies suggest that the most common form of elder abuse is the financial exploitation of seniors.(5) As people age 50 to 70 control over 70 percent of the wealth in the United States, often they are targets for financial exploitation. Seniors often become targets of financial exploitation among family members, caregivers, scam artists, financial advisers, home repair contractors, fiduciaries (such as agents under power of attorney and guardians), and others. According to the Alzheimer’s Association, seniors suffering with forms of dementia or other cognitive impairment are at greatest risk.
Financial exploitation can take many forms including but not limited to:
- Forging an elderly person’s signature
- Intimidating or tricking an elderly person into signing a deed, will or power of attorney or into signing over control of financial accounts or property
- Promising goods or services to an elderly person in exchange for money or property and then failing to deliver
According to the National Committee for the Prevention of Elder Abuse/ Metlife Mature Market Institute Study Crimes of Occasion, Desperation and Predation Against America’s Elders women are twice as likely as men to be victims and most victims fit the profile: They live alone; They are between the ages of 80 and 89; They need some level of help with health care or home maintenance; They are visibly vulnerable. We all have clients, family members and friends who fit this profile. They are fiercely independent, but they may not be able to do everything on their own. These are the people who need help, but do not realize it yet- or will not admit it.
Attorneys can unknowingly become part of an elder abuse perpetrator’s scheme or a senior’s greatest ally. It is widely recognized that it is difficult, even for experienced professionals to distinguish an ill advised but legitimate financial transaction from an exploitive transaction resulting from duress, undue influence, fraud or lack of informed consent. Common signs of financial exploitation include unusual financial transactions; unpaid bills, eviction or foreclosure notices or utility shutoff notices; missing property; newly-signed legal documents the senior does not understand or the appearance of a new caregiver or close “friend.”
Recently, the commonwealth took considerable action in the fight against elder abuse. Last year, the General Assembly passed enhancements to our abuse reporting requirements.(6) During their September session, the Supreme Court of Virginia, in Ayers v. Shaffer, addressed what effect fiduciary relationships, such as an agent under a durable power of attorney, have on transactions between the agent and principal. The court ruled that where a “confidential relationship” existed between the parties, undue influence is presumed and the person seeking to enforce the terms of the contract then carries the burden.(7) However, there is more work to be done.
The General Assembly received several proposals over the last few years concerning elder abuse. Some proposals would add an enhanced penalty when the victim of an existing crime is elderly or disabled. Other proposals would add a financial exploitation crime which includes an undue influence/coercion/ duress sort of element which would hopefully address many financial exploitation cases. More narrow proposals would address attorney fees thereby, making it easier for victims to find representation.(8)
The best way to protect elderly friends and love ones from abuse is to remain aware and involved. Seniors who are most at risk for abuse, neglect and financial exploitation are those who lack a strong network of alert and involved family members and friends. Perpetrators count on the ability to isolate, intimidate and control their victims. The more caring and informed people an elder has involved in his or her life, the less likely he or she will be victimized. As a legal practitioner working with elderly clients, you can insist on meeting with clients alone and always be aware of competency concerns with your clients. Often, inadequate evidence and proof makes it challenging to pursue elder abuse cases criminally or civilly. Lawyers can seek additional education to look for signs of elder abuse in their community. Furthermore, we can work to seek additional broader legislation making it easier to identify and seek justice for victims of financial elder abuse.
– By Melanie Lee. Lee practices with Lee Law Office in Richmond.
Endnotes
1 U.S. Senate Committee on Aging, hearing committee notes
2 APS, Adult Services Annual Survey, 2003
3 42 U.S. Code § 3001.
4 U.S.C.A. § 3002 (13) (Supp. 1993).
5 National Research Council. (2003) Elder mistreatment: Abuse, neglect and exploitation in an aging America. Washington, D.C.: The National Academies Press.
6 VA. CODE ANN. $63.2-1606
7 Ayers v. Shaffer (No. 122043 Va., Sept. 12, 2013).
8 During the writing of this article, the 2014 session of the General Assembly is hearing House Bill 312 sponsored by Del. David Toscano (D). The Act would provide that in any civil action to rescind a deed, contract, or other instrument, the plaintiff is entitled to reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the instrument was obtained by fraud or undue influence on the part of the defendant.
