Exploitation of the Elderly May Become Easier to Prosecute

The Governor recently signed a bill into law that may help to curb the growing exploitation problem in the state. Financial exploitation of the elderly is less reported than other forms of abuse. It is believed that only 1 in 14 cases of financial exploitation against disabled adults are reported and that the yearly number of cases nationwide could exceed 850,000. According to the National Center on Elder Abuse, the elderly may be reluctant to report abuse themselves because of fear of retaliation, lack of physical and/or cognitive ability to report, or because they don’t want to get the abuser (90% of whom are family members) in trouble.

Representative Kathleen Passidomo sponsored House Bill 409 which substantially changes what will now be considered exploitation. This law will go into effect on October 1, 2014.

Expanding the Definition of Exploitation
Previously the crime of exploitation occurred when a person used “deception or intimidation to obtain a vulnerable adult’s funds, assets or property.” The new law eliminates the requirement that deception or intimidation is used. Under the new law exploitation means knowingly obtaining or using an elderly person’s or disabled adult’s assets with the intent to temporarily or permanently deprive the elderly person or disabled adult of the assets or to benefit someone other than the elderly person or disabled adult by a person who:
1. Stands in a position of trust and confidence with the elderly person or disabled adult; or
2. Has a business relationship with the elderly person or disabled adult.
Exploitation also means using or an elderly or disabled person’s funds for someone other than the elderly or disabled person by a person who knows or reasonably should know that the elderly or disabled person lacks the capacity to consent. Under the new statute, exploitation also includes breach of fiduciary duty by a guardian, trustee and agent under a power of attorney.

Changing the Way Joint Accounts are Treated
The new law creates additional instances that constitute exploitation by criminalizing the use of joint or convenience accounts which were set up with funds of the elderly person if the funds are not used for the sole benefit of the elderly person. In the past, prosecutors did not pursue cases where the exploiter had been added to the account.

Failing to Act
The new law also makes it a crime for a caregiver or a person who stands in a position of trust and confidence to fail to effectively use the elder’s assets or income for necessities for the elder.

Permissive Presumption
A presumption in a legal proceeding is an assumption of the existence of a fact which is in reality unproven by direct evidence. A presumption is derived from another fact or group of facts that has been proven in the action. There are two types of presumptions: conclusive presumptions, which require the jury to find the presumed fact if the underlying facts are proved; and permissive presumptions, which allow, but do not require, the jury to find the presumed fact if it finds the underlying fact to be true.

Prosecutions under the old law often faced significant roadblocks due to the difficulty in proving that what may superficially look like voluntary gifts or loans is actually exploitation. Exploited elders frequently are unable, and sometimes unwilling, to effectively assist prosecutors. Prosecutions are further complicated by the fact that the transactions often occur in secret, and that often times the elderly person may not be a good witness as a result of cognitive or other impairments.

The new law creates a permissive presumption when a transfer of money or property valued at $10,000 or more, is made by an elderly person (65 or over) to a non-relative, known to the elderly person for fewer than two years. The law requires that the court instruct the jury that they may, but are not required to, draw an inference of exploitation upon proof beyond a
reasonable doubt of the facts listed in this subsection; and the presumption imposes no burden of proof on the defendant.

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