How Virginia Can Prevent the Financial Exploitation of Elderly Adults

By Kristen Tolbert, Staff Editor

While it’s not a topic on most people’s minds, elder abuse is a huge problem in Virginia.[1] The Virginia Department of Adult Protective Services has received over 12,000 reports of elder abuse within a year. 60% of those cases required intervention.[2] However, many victims do not ever report their abuse.[3]

Federally, elder abuse was first dealt with in the Older Americans Act.[4] This act defined elder abuse as the willful infliction of injury, unreasonable confinement, intimidation, and cruel punishment, or the refusal of services that are necessary to avoid physical or mental harm by a person or caregiver.[5] However, financial exploitation is the most common form of abuse that elders face.[6] Adults aged 50 to 70 years old control over 70% of the wealth in the United States.[7] This means that elder adults are often targeted by family members, caregivers, and scammers pretending to be financial advisers or home repair contractors.[8]

Financial exploitation can be as simple as forging an elderly adult’s signature or as severe as intimidating or deceiving them into signing over all of their assets or financial accounts.[9] Family members can also trick or intimidate them into signing a will or handing over power of attorney, so the family member is now in control of all their decisions and assets.[10]

Many elderly adults are scared to report their abuse for fear of retaliation from the abuser.[11] They may also believe that having a caregiver who abuses them is better than having no caregiver at all.[12] Furthermore, if the abuser is a child or other family member, they are ashamed of their children or even blame themselves for the abuse.[13] They may also be fearful of getting their own children, whom they love, in trouble with law enforcement.[14]

Currently, Virginia has laws for both civil and criminal financial exploitation.[15] However, those laws only apply to an “incapacitated person.”[16] An incapacitated person is defined as “…any adult who is impaired by reason of mental illness intellectual disability, physical illness or disability, advanced age or other causes to the extent that the adult lacks sufficient understanding or capacity to make, communicate or carry out responsible decisions concerning his or her well-being.”[17]

Many adults who are abused do not fall under this definition. They often are independent and able to do most things on their own but may need a little help from time to time as they age.[18] They usually have sufficient understanding and capacity to make decisions concerning their well-being, but they are tricked or forced by family members or caregivers into giving up control of their financial accounts, or their checks are taken from them and their names are forged in the signature line. [19]

I believe that since elder abuse is such a large problem in Virginia that we should create legislation that directly relates to the exploitation of elder adults. For example, in Louisiana, in §14:67.21, theft of the assets of a person who is aged or a person with a disability is: (1) the intentional use, consumption, conversion, management, or appropriation of the funds, assets, or property of a person who is aged or a person with a disability without his authorization or consent for the profit, advantage, or benefit of a person other than the person who is aged or the person with a disability without his authorization or consent.[20] The punishment for this act when the value of theft equals $1,500 or more may be imprisoned, with or without hard labor, for not more than ten years and shall be fined not more than $3,000 dollars.[21] If the value is between $500 and $1500, the defendant may be imprisoned for not more than five years and shall be fined not more than two thousand dollars.[22] If the value is less than $500, the offender may be imprisoned for not more than six months and shall be fined not more than $500.[23] If the offender is convicted more than once, regardless of the value they shall be imprisoned for not less than two years and shall be fined not less than $2,000.[24] Louisiana defines a person who is aged as “any person sixty years of age or older.”[25] This statute is able to incorporate both persons with disabilities as well as adults who are aged, regardless if they are incapacitated or not.

Until we get these laws to protect elderly adults, the best way to help your elderly family members or friends is to remain both aware and involved in their lives.[26] Elderly adults who are most at risk are those who do not have a strong network of involved family and friends because they are easier to isolate and intimidate.[27] Be alert and watch out for people who may be looking to control your elderly family member or friend.[28]

 

 

[1] Melanie Lee, The Ugly Truth About Financial Elder Abuse, Virginia Lawyers Weekly https://valawyersweekly.com/2014/02/20/the-ugly-truth-about-financial-elder-abuse/

[2] State of APS 2012: A National Baseline Survey of Adult Protective Services, National Adult Protective Services Association https://www.napsa-now.org/get-informed/research/state-of-aps-2012/

[3] Elder Abuse and Neglect, HelpGuide https://www.helpguide.org/articles/abuse/elder-abuse-and-neglect.htm

[4] 42 U.S.C. §3001 (2018).

[5] Id.

[6] Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America, Washington National Academies Press (2003).

[7] Melanie Lee, The Ugly Truth About Financial Elder Abuse, Virginia Lawyers Weekly https://valawyersweekly.com/2014/02/20/the-ugly-truth-about-financial-elder-abuse/

[8] Elder Abuse and Neglect, HelpGuide https://www.helpguide.org/articles/abuse/elder-abuse-and-neglect.htm

[8] 42 U.S.C. §3001 (2018).

[9] Melanie Lee, The Ugly Truth About Financial Elder Abuse, Virginia Lawyers Weekly https://valawyersweekly.com/2014/02/20/the-ugly-truth-about-financial-elder-abuse/

[10] Id.

[11] Elder Abuse and Neglect, HelpGuide https://www.helpguide.org/articles/abuse/elder-abuse-and-neglect.htm

[11] 42 U.S.C. §3001 (2018).

[12] Id.

[13] Id.

[14] Id.

[15] See Va. Code §18.2-178.1 (2016); Va Code Ann. §63.2-100 (2016).

[16] See Va. Code Ann. §63.2-1602 (2015).

[17] Id.

[18] Elder Abuse and Neglect, HelpGuide https://www.helpguide.org/articles/abuse/elder-abuse-and-neglect.htm

[19] Melanie Lee, The Ugly Truth About Financial Elder Abuse, Virginia Lawyers Weekly https://valawyersweekly.com/2014/02/20/the-ugly-truth-about-financial-elder-abuse/

[20] La. Rev. Stat. Ann. §14:67.21(B) (1-3) (2016).

[21] La. Rev. Stat. Ann. §14:67.21(C) (1) (2016).

[22] La. Rev. Stat. Ann. §14:67.21(C) (2) (2016).

[23] La. Rev. Stat. Ann. §14:67.21(C) (3) (2016).

[24] La. Rev. Stat. Ann. §14:67.21(C) (4) (2016).

[25] La. Rev. Stat. Ann. §14:67.21(A) (2) (2016).

[26] Melanie Lee, The Ugly Truth About Financial Elder Abuse, Virginia Lawyers Weekly https://valawyersweekly.com/2014/02/20/the-ugly-truth-about-financial-elder-abuse/

[27] Id.

[28] Id.

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