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July 01, 2013

No Higher Calling: Representing Victims of Financial Exploitation

Elder abuse cases often highlight the reality that the same frailties and vulnerabilities that make older clients easy victims also make them imperfect witnesses and poor advocates for their cause. Despite the difficulties and resource demands that financial exploitation cases involving the elderly present, there are no cases where a legal aid provider such as ours, Legal Services for the Elderly (LSE) in Maine, believes we are more clearly discharging our duties as advocates for our vulnerable elderly clients. Dogged pursuit of, and repeated success in, these civil cases is just one among the many actions that must be taken to rid our society of elder abuse.

LSE provides in-person extended representation services in a very limited number of situations. This includes matters such as evictions, foreclosures, public benefit appeals, and elder abuse. Of the case types handled, financial exploitation cases are among the most technically demanding and resource intensive. Financial exploitation litigation has been a significant part of LSE’s practice for over a decade for a number of reasons. First and foremost, it is often the only way to restore assets, safety, autonomy and dignity to elderly victims. Most of the financial exploitation cases handled by LSE involve family member perpetrators. Elderly victims who have their assets taken by family members typically do not want their relatives to be prosecuted. Even where that may be desired, LSE has found that law enforcement officials and prosecutors in Maine are very reluctant to pursue criminal charges for exploitation perpetrated by a family member. This leaves civil legal action as the only mechanism to restore safety and protect and recover stolen assets. The elderly victims helped by LSE simply do not have anywhere else to turn to for help in these situations.

The threat of the MaineCare (Maine’s Medicaid program) penalties (loss of MaineCare payment for long term care) is another driver in LSE undertaking representation and bringing civil action in these matters. The thefts elderly victims experience can be viewed as transfers for less than fair market value. LSE often finds it is necessary to bring these complex and time-consuming actions partly to protect elders from Medicaid penalties.

As the only senior legal services provider in the oldest state in the nation, the decision to commit increasingly limited resources toward these resource-intensive and complex cases is not one that LSE takes lightly. The wisdom of the decision must be evaluated in the context of the legal outcomes that can be achieved for financial exploitation victims, and the results are compelling, as demonstrated through two recent cases handled by LSE.

Arthur Green’s Case
This story starts with LSE’s intake paralegal receiving a call from a distraught elderly man who declared “I’m being evicted from my own house!” Arthur Green, a 72 year-old man who had worked construction all his life and lived in a house in Brooks, Maine, that he built with his own hands 30 years earlier had been served with an eviction notice by his 20-year-old granddaughter. Disoriented and depressed, Mr. Green had gone to consult a local attorney. The attorney quickly established that Mr. Green no longer owned his home—having deeded it away to his granddaughter. Realizing that Mr. Green was at risk of homelessness and aware that he did not have money to pursue a lawsuit, he directed Mr. Green to LSE.

Through interviews and research at the registry of deeds, LSE learned that Mr. Green’s granddaughter had arranged visits to the office of a lawyer in Massachusetts for the purpose of having her grandfather transfer his home, his camp, and all of his land in Brooks to her. Mr. Green signed over the deed with the understanding that he would retain a life estate and be allowed to live in his own home, on his own land in Brooks, rent free, for the rest of his life. Less than one year later, Mr. Green was served with a “notice to quit” by his own granddaughter—beginning the process of eviction. The land and buildings transferred by Mr. Green to his granddaughter were valued by the Town of Brooks at $181,900 and were actually worth roughly $300,000 at the time of the transfer.

LSE undertook representation in the eviction matter. An attempt to negotiate the return of Mr. Green’s home to him ended when the granddaughter listed it for quick sale. Given the risk that an arm’s-length sale posed to any future recovery, LSE took legal action to stop the sale and filed a lawsuit seeking the return of Mr. Green’s home and real estate.

In addition to seeking the return of Mr. Green’s home for its own sake, LSE was aware that in the eyes of the state’s Medicaid agency, the transfer of Mr. Green’s home to a family member for no payment would be viewed as “gifting” for the purpose of qualifying for Medicaid benefits. Mr. Green, in addition to facing possible eviction and losing the only item of value he owned in the world, could wind up facing a multi-year denial of long term care benefits­—at exactly the moment he would need them—due to the actions of his granddaughter.

Further negotiations with the granddaughter proved pointless and LSE filed a motion asking the court to rule that Mr. Green was under undue influence at the time of the transfer and to order the return of his home The expedited approach of filing a motion was pursued—instead of awaiting an in-court trial—based on an awareness that with an infirm and frail elder, time is of magnified importance. After oral arguments were held, the court ordered Mr. Green’s granddaughter to return his house and real estate to him. Mr. Green now lives in his own home—the home he built—the home he owns.

Gweldolyn Swank’s Case
Gwendolyn Swank is nearing 90 years of age and lives alone in Pemaquid, Maine. Some years ago she became concerned that there were drug dealers making their home in her neighborhood. Her neighbor and trusted friend of 30 years, Rodney Chapman, decided to prey on Swank’s fears and exponentially increase them.

Chapman convinced Swank that there was indeed a serious, ongoing, and threatening drug problem in the mobile home park. He said he would call his friend, a local judge, to see what they should do. This fictional local judge (believed to be Chapman or a co-conspirator) called Swank and told her that the local police could not handle the drug problem, and that he (the judge) would have to call in a favor with special law enforcement agents to come and take care of the problem. These agents, whom he called the “Texas Rangers” would need Swank to front them the money for the operation, $3,000 initially, to get started. She was promised re-payment.
Over the course of about five years, through an elaborate scheme involving many phone calls with imaginary Rangers and the fictitious local judge, Swank gave Chapman over $350,000. Ms. Swank was manipulated and lied to at every turn, trapped in her own home, isolated from friends and her church, at times likely drugged, promised the return of all her money, and promised safety from nefarious drug dealers.

When she finally sought help from LSE, Swank was guilt ridden for being so thoroughly fooled; she felt that the situation was her fault. She was also in dire financial straits and being harassed by collectors for bills that Chapman had incurred in her name. LSE represented Ms. Swank in four separate legal matters stemming from her exploitation. LSE resolved a lawsuit by a local bank resulting from overdrafts. LSE resolved a housing issue regarding a housing company’s refusal to allow Ms. Swank to seek subsidized housing due to her credit history (blotted by the exploitation she suffered) and LSE partially resolved a $62,000 income tax bill that accrued to Ms. Swank due to her reckless sale of all of her assets during the time of her exploitation.

LSE also sought to recover the stolen money from Chapman. While it became clear that any financial recovery was unlikely, LSE still saw this case through to (1) protect Ms. Swank from Medicaid penalties and (2) serve as an example of the type of results that are possible in these types of cases. LSE staff hopes this will encourage more attorneys to pursue these types of cases and more judges to take seriously the harm that victims suffer. Ultimately, the court handed down a $1.3 million judgment, sending a strong signal regarding financial exploitation of elders. Mr. Chapman is currently serving a five-year jail term after conviction for his theft from Ms. Swank. ■