March 01, 2014

Elder Financial Abuse—A View from the Front Lines, Part II: How to Intervene

Catherine A. Seal

Editor’s Note: This is the second of a three-part article on elder financial abuse. Part I was “Preventing and Identifying Elder Financial Abuse.” Part II is “How to Intervene.” Part III will address “Remedies.”

The intervention method depends upon the intervenor and the nature of the abuse.

Family Intervention

It can be difficult for family members to intervene for many reasons.

The senior may be estranged from family for reasons having nothing to do with the current abuse situation. Common scenarios are a history of mental illness, alcoholism, or abuse by the senior or his or her deceased spouse. Alternatively, the current perpetrator may be intimidating family members to keep them away, either through threats of harm or by using his or her authority as agent. Perpetrators sometimes call the police to claim that the family members are harassing the senior when the family tries to visit. The senior may be telling the family to stay away, particularly in cases of undue influence.

Family members may consult with an elder law attorney, who might recommend several options.

  • Call Adult Protective Services (APS) to make a welfare check on the senior;
  • Ask the agent to account for his or her actions as agent under a power of attorney or as trustee under a trust;
  • Petition for appointment of a conservator for the senior and a review of financial records;
  • Contact law enforcement directly. While a welfare check is likely to result, if law enforcement is presented with a power of attorney that appears on its face to be properly executed, without more information, it may be difficult for law enforcement to do more. However, improper financial transactions or similar kinds of evidence may be able to trigger a police investigation.
  • Avoid questionable self-help methods, such as securing a new power of attorney or “granny snatching.”

A family’s attorney or other professional may attempt some sort of intervention. An attorney with a longstanding history with a client may take action if the client indicates a willingness to cooperate with a strategy that places an individual other than the perpetrator in charge of finances. However, professional interventions, particularly in cases where the professional does not have enough information, can sometimes end up placing a perpetrator in charge under the guise of ridding the senior of an undue influencer.

Red Flags: Third-Party Reports

It may happen that someone other than a family member recognizes red flags for elder abuse. Common situations include the following.

 

  • A home care agency, assisted living facility, or skilled nursing facility with an outstanding balance for services may contact APS with a concern about the unpaid bill.
  • A physician’s office may notice that appointments have been missed.
  • A bank employee may notice that the individual is being accompanied to the bank by someone not seen with the senior until recently. This is particularly troubling when a debit card is requested for the first time or savings accounts are rapidly depleted.
  • Someone is in the home for some reason and notes that the environment does not appear to be conducive to the well-being of the senior who is residing there. This may be a repairperson working on an appliance or utility, a paramedic or fire fighter responding to a call, or a contractor or service provider. This situation sometimes generates a call to law enforcement or APS.
  • A nosy neighbor could call law enforcement or APS.

Adult Protect Services Intervention

As a result of a report or referral, APS may intervene by sending trained caseworkers to investigate. If the facts warrant an intervention, APS may refer the case to the county attorney for appointment of a conservator or guardian. If the facts appear to suggest that a crime has been committed, APS is likely to contact law enforcement.

Cases of financial exploitation generally require a review of financial records. Some kinds of exploitation are obvious; they may include, for example, transfer of a deed to the senior’s residence to another individual. Other kinds of exploitation must be located through a review of data.

In reviewing a case to determine whether financial abuse may have occurred, an investigator may do the following:

  • Review the real property records for property currently owned by the senior;
  • Obtain an ownership and encumbrance report on all real property owned.
  • Search the grantor/grantee index of the county property records for a number of years to see which documents have been filed with the senior’s name. This will show property transfers for property no longer titled in the senior’s name and recording of a power of attorney was used for property transactions.
  • If there is a known perpetrator, conduct a search for the individual’s name in publicly available court databases in the local jurisdiction. This may provide basic information on all criminal and civil court cases to which the individual has been a party. If the individual has a criminal record or a number of outstanding judgments, red flags are raised.
  • Search in the government records database for information on motor vehicles recently owned by the senior.
  • Review past tax returns, if available, for information on past income-generating assets.
  • Gather bank records for several years. If records begin at a time when the senior was handling his or her own finances, this will show a picture of the senior’s financial habits before the financial abuse began. Bank records need to include copies of checks.
  • Gather copies of past credit card statements.

Many people have confided that they do not believe they have the expertise to uncover financial exploitation in a review of financial records. However, it is actually possible to locate problem transactions. Look over all the checks. Google the payees if you cannot determine the nature of the transaction. Note all checks for cash, withdrawals from ATMs, and charges for things not commonly purchased by seniors. High charges for gasoline for a homebound senior, charges for liquor stores, or purchases of electronics or restaurant meals should all be examined, particularly if the prior records are available and these were not customary charges for the senior.

To be continued in the next issue of The Voice of Experience. Part III will address “Remedies.”

 

Catherine A. Seal

Catherine A. Seal is a partner in Kirtland & Seal, LLC. A certified elder law attorney, her elder law practice focuses primarily on protective proceedings and elder financial exploitation. She is a member of the National Academy of Elder Law Attorneys (NAELA), the ABA Real Property, Probate and Trust Law Section; and the ABA SLD, where she co-chairs the Elder Abuse Working Group of the Elder Law Committee. She serves as treasurer for NAELA’s Executive Committee and is a fellow of the Academy. She is also the Fourth Judicial District of Colorado’s public administrator.