Remedies For Elder Financial Abuse: State Criminal Prosecution
Although the Adult Protective Services (“APS”) statutes and programs in all 50 states and the District of Columbia recognize elder financial abuse as a reportable action, not all states specifically recognize elder financial abuse or exploitation as a distinct crime. In those states, however, basic criminal laws against theft, fraud, deception, larceny, forgery, and embezzlement can be invoked to prosecute elder financial abuse and seek restitution for the elder. The burden of proof for a conviction under such statutes is typically “beyond a reasonable doubt.”
Frequently, however, prosecutors refuse to pursue elder financial abuse actions for a variety of reasons, including (i) insufficient support of APS investigations by law enforcement personnel; (ii) limited budget resources; (iii) the effect of the incapacity or death of the victim on the ability to marshal sufficient probative evidence; and (iv) the refusal of the victim to cooperate with the development of the case.
Specially trained multi-disciplinary teams of criminal justice and social service professionals are increasingly being trained and deployed to enhance state efforts to prosecute elder financial abuse. Collaboration between and among the following disciplines promises to increase the effectiveness of state efforts to convict and punish the perpetrators of elder financial abuse: (i) APS,State Units on Aging, and Long-term Care Ombudsman Offices (“LTCO”); (ii) state and local law enforcement agencies; (iii) policy makers; (iv) financial and banking industries; (v) legal; (vi) social services agencies and social workers; (vii) medical and mental health care providers; (viii) public health officials; (ix) medical examiners and coroners; (x) state insurance, banking, and securities regulators; (xi) district Attorneys and state Attorneys General; and (xii) consumer protection agencies.
An example of a successful multi-disciplinary team established by the Georgia Department of Human Services Division of Aging Services, Forensic Special Investigations Unit, is the “At-Risk Adult Crime Tactics” (“ACT”) Specialist Program. Over 800 ACT specialists are working in Georgia, with promising results at the local, state and federal levels to combat and prosecute the abuse, neglect and exploitation (“ANE”) of at-risk adults. An ANE work group comprised of representatives of local agencies (e.g. county and city police departments, county District Attorney’s Offices), state agencies (e.g. the Georgia Bureau of Investigation, APS, LTCO, Medicaid, Inspector General, Georgia Association of Chiefs of Police, Georgia Criminal Justice Coordinating Council), and federal agencies (e.g. the FBI; the Offices of Inspector General of the Social Security Administration, HHS, FDA, VA; and the United States Attorney’s Office) meets bi-annually to identify and address obstacles to preventing and prosecuting crimes against at-risk adults. Recommended solutions include the following.
(a) Increased public education and awareness of ANE of at-risk adults.
(b) Mandatory training of criminal justice personnel at all levels (e.g. law enforcement, prosecutors, judges) on ANE of at-risk adults.
(c) Expedited investigation and prosecution of crimes against at-risk adults.
(d) Development and codification of evidence preservation procedures designed to enhance prosecution of ANE crimes against at-risk adults.
(e) Development of multi-disciplinary cooperation and collaboration between law enforcement and non-law enforcement government agencies to ensure equal protection for at-risk adult victims.
(f) Facilitation of information sharing between and among government agencies to support investigations and enforcement.
(g) Statutory changes to enable law enforcement to obtain financial records related to abuse and exploitation in a no-cost or low-cost manner.
(h) Development of funding resources to implement the foregoing recommendations.
The activities of the Georgia Department of Human Services Division of Aging Services to combat the societal plague of ANE of at-risk adults is documented in a recent public television production Elder Abuse: Hiding in Plain Sight (available at https://www.gpb.org/elder-abuse).
Part 10 of this series will explore the challenges of prosecuting interstate and international elder financial abuse schemes.
Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.