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Eldercare Conference Exposes Financial Exploitation Concerns The needs of the elderly were first and foremost on the minds of those who attended the Eldercare Conference, which took place at the FAE Conference Center on Aug. 11. Topics varied, ranging from maintaining client independence to finding cost-effective long-term care insurance. Financial manipulation of the elderly was a key topic brought to light at the conference, which was sponsored by the NYSSCPA’s Personal Financial Planning Committee. Bruce M. Milove was sponsoring committee chair, while Douglas Schnapp and Catherine M. Censullo served as conference cochairs. Elizabeth Loewy, Assistant District Attorney for the Elder Abuse Unit of the Manhattan District Attorney’s Office, spoke about financial crimes against the elderly, who she said are living longer. “Elder abuse is any case involving a victim that’s 60 or older,” Loewy said, adding that many cases that might not have been thought of as elder abuse can be prosecuted as such (like a burglary of a 61-year-old’s home). There are more people over the age of 60 than there are under the age of 10 in the state of New York, Loewy said, and added that the number of seniors who are impaired will also increase in coming years. The district attorney’s office, she said, deals with two main types of cases that involve elder abuse. The first type is domestic violence, where children and grandchildren may be involved in the physical abuse of older family members. The second type is financial exploitation of the elderly, which Loewy said is the kind of case that would be referred to her office. “Elderly clients are vulnerable to financial theft, and those who are partially or fully mentally incapacitated cannot consent to asset transfers,” Loewy said. “Several factors are taken into account when approaching potential abuse cases, such as the mental state of the elderly person,” she added. But financial exploitation of the elderly can take many forms, from the elderly person’s primary caregiver taking out new credit cards in their name, to family members who abuse their power of attorney and drain the victim’s life savings, Loewy said. She cited a case of a caregiver who created a joint account with the impaired victim’s funds, knowing that the person had considerable mental impairment. The court prosecuted the caregiver under a “wrongful taking” larceny statute, Loewy noted. However, larceny actions that involve joint bank accounts are often impossible to prove, she said. There are also cases of family members who are given power of attorney by an elderly person and steal from that person’s account regardless of their mental capacity, she said. “Partially because power of attorney is relatively easy to grant, the larceny statute doesn’t address theft through the use of a power of attorney,” Loewy said. Consequently, she noted, prosecutors frequently must rely on case law to confirm that larceny has been perpetrated through the abuse of a power of attorney. The district attorney’s office, Loewy said, often builds cases without relying on an older victim for testimony, since frequently the victims are deceased before the case can be taken to trial. The cases will instead rely on evidence such as witness observation, the defendant’s statements and even ATM camera film or bank records. When a conviction is reached, different options are available to the victim. An order of protection is frequently enacted to keep the defendant away from the victim, and restitution of stolen funds is also often put forth as a requirement in addition to a confession of judgment or a rehabilitation program if it is deemed by the court to be needed, Loewy said. She also said that family members, upon financial exploitation being discovered, will frequently try to get charges dismissed or lessened due to the fact that they are not strangers to the victim. Most important to note, Loewy said, is that the abuse of an elderly person often ends once an initial investigation is launched. Loewy previously served as chief of the Domestic Violence Unit in the district attorney’s office. She also has testified on domestic violence and elder abuse issues before committees of the New York State Senate and the New York City Council. |
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