Families are frustrated. When someone thinks a person is taking financial advantage of an aging parent, the public message is an urge to report to Adult Protective Services. APS, sometimes called by other names, is a local government entity tasked with investigating complaints about elders. They, in turn can report evidence of a crime to the local District Attorney. Families of victims complain that the D.A. does not act. No prosecution of the perpetrator happens.
The crime of financial abuse of elders is rampant and growing. People are living longer and they become more vulnerable with age. An older, perhaps forgetful person is an easy target. Why isn’t law enforcement going after the perpetrators?
At AgingParents.com where we consult with elders and their families, we regularly hear about financial abuse. We always ask if the family has reported the matter to APS. Often, they have. Sometimes I report it myself, complete with evidence, witnesses, etc. In the last 15 years, not one case I know was reported or that I personally reported has ever been pursued by the District Attorney in my own county or those nearby.
Lack of Enforcement
Law enforcement will pursue a variety of crimes against elders, particularly if the elder is high profile or massive sums are involved. But for the ordinary dad who got ripped off by the caregiver, the District Attorney may have no interest. There has been a long-standing misperception among some D.A.s that financial elder abuse is not their territory. In my own state, California, there was even a policy in some counties that these crimes were not to be pursued. In other words, they didn’t just ignore it, they were officially supposed to ignore it.
The reasons for purposeful ignoring of a crime are unclear. However, the law is very clear. The specifics of the crime of taking money or property from an elder are spelled out and are punishable. One possible explanation for law enforcement’s unwillingness to charge these cases is that they think the families affected can go to a civil court on their own, and that is good enough.
The Error In Thinking That A Civil Case Will Be The Remedy
It is true that sometimes the same action can be both a crime and a civil offense. Think O.J. Simpson: he was charged with murder (and acquitted). He was also sued in a civil case for the same matter in what is called “wrongful death”. He lost that case and had a money judgment against him. The laws about elder abuse vary from state to state but there is a general recognition everywhere that it is a crime to steal, especially from an older, sometimes vulnerable person. And yet, some APS workers and some DAs simply tell the family of the victimized elder that they should go sue the abuser. “It’s a civil matter” is their excuse. And it is not a valid excuse. One can’t always sue the abuser nor get anything out of doing so.
Here’s why: first, the family of the victim has to pay an attorney and case costs for a civil lawsuit. That is a barrier in itself, as many people can’t afford the high cost of an attorney. Second, the criminal often takes all the elder’s money and spends it, so there may be nothing to get out of a lawsuit. There are exceptions, such as when an abuser takes an elder’s home or property. That can potentially be gotten back by way of a lawsuit, but in many cases there is nothing at all to get back in a civil case. The result of a criminal case can be jail and/or a fine and having to pay back ill-gotten money. In a civil case, the only helpful result is getting the money back. At least criminal prosecution can stop further abuse. And it costs the family and the victim of abuse nothing, as the D.A. represents “the people”. A civil case does not preclude an abuser’s repeat performance on a different victim, later on, or in a different state.
Are Things Changing?
I see hope for change in my own state. Education grants provided for nonprofit organizations to educate District Attorneys are supporting the motivation to pursue enforcement against the crime of financial elder abuse. It is time that victims and their families had the sense that financial abuse of elders will be aggressively prosecuted in every state, according to the criminal law of each state.
If you suspect elder abuse of a family member or friend, and you need advice about your options, you can get it at AgingParents.com. We’re a nurse-lawyer, psychologist team at the ready to offer expertise so you can make a smart decision. Call us at 866-962-4464 for professional guidance to relieve your distress.
By Carolyn L. Rosenblatt, RN, Attorney, Mediator, AgingParents.com