MN perspective on financial elder abuse

Financial crimes against elderly grow in number, complexity
Paul Beaumaster, Guest Columnist
December 25, 2009
Northfield News (MN)
http://www.northfieldnews.com/news.php?viewStory=51027
Financial crimes against the elderly are difficult to investigate and prosecute. Determining whether someone understood or gave informed consent to an action requires scrutiny of the victim and the relationship to the perpetrator. We must balance a victim’s right to make choices against protecting victims whose capacity to decide is diminished.

The prevalence of elder abuse grows as our population ages. Financial, telemarketing, Medicare, investment and Internet-related fraud cases are widespread. Rice County has an effective education program which assures fraud victims they are not at fault. In the wake of abuse, victims often suffer embarrassment and shame. The importance of being alert to older people’s needs for self-respect and self-determination cannot be overstated.

There are multiple legal tools to combat abuse and neglect. Financial abuse of older persons spans a broad spectrum. It includes the attendant who steals from a charge; the teenager using his grandmother’s credit card to buy stereo equipment; the son or daughter in financial trouble or addicted to alcohol, drugs or gambling who sees the older person as a way out; and expectant heirs who want to accelerate their inheritance. Financial abuse includes home-repair scammers and predatory lenders who mislead or coerce older homeowners into taking out home equity loans they can’t possibly repay, as well as “identity theft,” in which criminals obtain personal information to gain control of assets. The misuse of joint bank accounts, powers of attorney, trusts and guardianships is another aspect of financial abuse. These legal devices were created as protections, but in some cases become “licenses to steal.” It is difficult to investigate such cases. The evidence is in the hands of the perpetrator, and there is confusion about jurisdiction — civil or criminal.

Finally, it is impossible to talk about financial elder abuse without discussing capacity — whether victims understood and had sufficient capacity to exercise informed consent when they signed documents or gave gifts. People may be deemed incompetent if diagnosed with dementia, if they make poor decisions, or on the basis of age. The all-or-nothing concept of incompetence has given way to the use of “functional assessments” to determine capacity and look at the level of understanding necessary to execute legal documents. To execute a will, one must understand how much one has and the “natural objects of one’s bounty.” In cases of elder abuse, questions arise as to the capacity needed to give a gift or get married.

Many victims don’t realize they have been abused and refuse to take action against abusers; some even seem complicit. As a result, victims are caught between their abuser and a community that doesn’t want to think of this as an issue of power and control, or doesn’t see abuse as a criminal matter. I encourage those who might look at elder abuse with preconceived ideas to ask, “As a result of the intervention, will this elder be safer?” If you answer yes, other considerations should melt away.

Community awareness and reporting are key to preventing abuse of our elderly population.

— Paul Beaumaster is the Rice County attorney.

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