1 / 26

Financial Exploitation: Research vs. State Statutes

Financial Exploitation: Research vs. State Statutes. Kevin E. Hansen, J.D. Doctoral Student School of Aging Studies, University of South Florida. Acknowledgements. Jonathan Hampel, MSW Dr. Sandra L. Reynolds, Ph.D. Professor Rebecca Morgan, J.D. Stetson University College of Law

osric
Download Presentation

Financial Exploitation: Research vs. State Statutes

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Financial Exploitation: Research vs. State Statutes Kevin E. Hansen, J.D.Doctoral StudentSchool of Aging Studies, University of South Florida

  2. Acknowledgements • Jonathan Hampel, MSW • Dr. Sandra L. Reynolds, Ph.D. • Professor Rebecca Morgan, J.D. • Stetson University College of Law • Michael Uzzi and Mary Sheldon, Gerontology undergraduate students

  3. Presentation overview • Existing research on financial exploitation • Methods for the current study • Results from statutory analyses • Adult Protective Services (APS) statutes • Criminal laws • Comparing and contrasting statutes with the research • Conclusions

  4. Research • For every one case of financial exploitation reported, four to five go unreported 1 • Cognitive impairment is one of the most significant risk factors for exploitation 2 • Financial exploitation accounts for approximately 20% of substantiated elder maltreatment by APS 3 • Typical victim: white female, aged 70-89 years old, with some type of incapacity 4

  5. Research • Financial exploitation is one of the most difficult forms of maltreatment to detect 5 • Difficult to determine when exploitation begins 6 • Financial exploitation expected to increase: • Growing older adult population • Older adults’ ownership of wealth in the U.S. • Vulnerability increases with advanced age • Variety of scams/exploitation 3

  6. Research • National Center on Elder Abuse definition: • “the illegal or improper use of an older adult’s funds, property, or assets” 7 • Financial exploitation can be “gradual and insidious,” and often includes deception 8 • Risk of financial exploitation increases when caregivers begin to have access to funds 9 • Exploitation occurs when informal caregivers become fiduciaries for the older adult and/or unusual transactions begin to occur 10

  7. Research • Primary perpetrators are family members (e.g., adult children and siblings) 11 • Study of New York APS data found 40% of cases were stranger perpetrators 12 • Financial exploitation categorized into four areas: • Theft • Fraud • Breach of duty by a fiduciary or caregiver • Negligence 13 • Financial exploitation continuing to grow while violent crimes against vulnerable adults decrease 14

  8. Methods • Literature review for financial exploitation • Terms searched: financial abuse, financial exploitation, fiduciary abuse, material exploitation, material abuse • Review of all 50 state statutes on adult protective services laws and criminal laws for exploitation • National Center on Elder Abuse and the American Bar Association, Commission on Law and Aging 15 • American Probation and Parole Association 16

  9. State APS statutes • “Illegal, attempted illegal, or unlawful” use of assets (31 states) • “Immoral, unjust, or unfair” use of assets (25 states) • Services the vulnerable adult is forced to perform for others (17 states) • “Misuse, misappropriation, or wrongful transfer” of assets (18 states) • Fiduciaries committing financial exploitation (16 states) • Identity theft (2 states)

  10. State APS statutes • Use of undue influence, duress, coercion (26 states) • Perpetrator “knows/should know” about vulnerable adult’s lack of capacity (4 states) • Perpetrators limited to certain people, such as caregivers or those in an “ongoing relationship” (4 states) • Financial exploitation is included as a sub-category under abuse or neglect (6 states)

  11. State criminal law statutes • Specific financial exploitation laws and crimes defined (36 states) • All of these states make this crime a felony-level penalty • Status as vulnerable adult an aggravating factor for other crimes, such as theft (16 states) • Specific mention of caregivers or enhanced penalties for caregivers (12 states) • Financial exploitation committed by one who owes a fiduciary duty (14 states)

  12. State criminal law statutes • Perpetrator in a “position of trust and confidence” with the vulnerable adult (13 states) • Perpetrator “knows/should know” about lack of capacity (8 states) • No state specifically mentions family member perpetrators of financial exploitation • Several states (14) have no statutory language that specifically addresses financial exploitation

  13. Comprehensive approaches • APS statutes • Utah • Florida, Minnesota, North Dakota, South Carolina, Vermont, Washington, Wisconsin, Wyoming • California, Hawaii, Iowa, Kansas, Mississippi, Montana, Nevada, New Hampshire, Rhode Island • Criminal laws • Florida • Nevada, North Carolina, Oklahoma, Utah • Kansas, Minnesota, Missouri, Montana, North Dakota, Rhode Island, South Dakota

  14. Harmony and discord • Some states (14) have APS financial exploitation laws but no criminal law equivalent • States with harmony between APS and criminal laws: • Florida, Minnesota, Nevada, Utah • States with more discord between APS and criminal laws: • Colorado, Hawaii, Mississippi, New Hampshire, Oklahoma, Pennsylvania, South Dakota, Vermont, Washington • Criminal > APS: Oklahoma, South Dakota • APS > Criminal: Colorado, Hawaii, New Hampshire

  15. Conclusions • No state specifically addresses crimes committed by family members • “Position of trust and confidence” language can include this • Caregiver role as an aggravating factor • Statutory predisposition to family members as substitute decision-makers (e.g., guardianship/conservatorship, proxy statutes) • Very few states (14 states) address crimes committed by those owing a fiduciary duty to the vulnerable adult

  16. Conclusions • Thirteen states use “regular” theft statutes • Evidence-based prosecution vs. complaining victim • Family member perpetrators • Challenges with assumptions of (lack of) capacity of an older adult victim • Capacity issues of the vulnerable adult victim not recognized in the majority of states • Definition of “vulnerable” varies by state • If an aggravating factor, another element to prove in court

  17. Conclusions • Substantial differences exist between adult protection laws and criminal code laws in many states • Adult protection information can sometimes be used as part of criminal investigations or prosecutions • Capacity issues of the vulnerable adult victim not recognized in the majority of states • Definition of “vulnerable” varies by state • Physical vs. mental capacity • Double-edged sword: perpetrator “knows or should have known” the vulnerable adult lacked capacity

  18. Limitations • Exploratory study to identify the landscape of financial exploitation laws • Did not include aggregation of offenses, which some states had in their statutes • Potential trigger for felony vs. misdemeanor • Time element with aggregation • State statutes are constantly in flux • Some states considering enhancements to financial exploitation statutes during 2014 legislative sessions

  19. Questions?

  20. Contact information Kevin E. Hansen, J.D.kevinhansen@usf.edu(813) 974-7916 Doctoral StudentSchool of Aging StudiesUniversity of South Florida

  21. References • Hanningan, K., Cyphers, G., & Aravanis, S. (1998). National Center on Elder Abuse (Final Report). Washington, DC: American Public Human Services Association. • Tueth, M. J. (2000). Exposing financial exploitation of impaired elderly persons. The American Journal of Geriatric Psychiatry, 8(2), 104-111. • Kemp, B. J., & Mosqueda, L. A. (2005). Elder financial abuse: An evaluation framework and supporting evidence. Journal of the American Geriatrics Society,53(7), 1123-1127. • MetLife Mature Market Institute. (2009). Broken Trust: Elders, Families, and Finances. New York, NY: Metropolitan Life Insurance Company. • Hafemeister, T. L. (2003). Financial abuse of the elderly in domestic settings. Elder mistreatment: Abuse, neglect, and exploitation in an aging America, 382-445. • Smith, R. G. (1999). Fraud and financial abuse of older persons. Current Issues in Criminal Justice, 11. • National Center on Elder Abuse. (1998). The national elder abuse incidence study: Final report. • Conrad, K. J., Iris, M., Ridings, J. W., Fairman, K. P., Rosen, A., & Wilber, K. H. (2011). Conceptual model and map of financial exploitation of older adults. Journal of Elder Abuse & Neglect, 23(4), 304-325.

  22. References • Anetzberger, G. (2000). Caregiving: Primary cause of elder abuse? Generations, 24(2), 46–51. • Wilber, K. H., & Reynolds, S. L. (1997). Introducing a framework for defining financial abuse of the elderly. Journal of Elder Abuse & Neglect, 8(2), 61-80. • Laumann, E. O., Leitsch, S. A., & Waite, L. J. (2008). Elder mistreatment in the United States: Prevalence estimates from a nationally representative study. The Journals of Gerontology Series B: Psychological Sciences and Social Sciences, 63(4), S248-S254. • Choi, N. G., & Mayer, J. (2000). Elder abuse, neglect, and exploitation: Risk factors and prevention strategies. Journal of Gerontological Social Work, 33(2), 5-25. • Dessin, C. L. (2003). Financial abuse of the elderly: Is the solution a problem? McGeorge Law Review, 34. • Malks, B., Buckmaster, J., & Cunningham, L. (2003). Combating elder financial abuse: A multi-disciplinary approach to a growing problem. Journal of Elder Abuse & Neglect, 15(3-4), 55-70. • Stiegel, L. A., & Klem, E. (2007). Types of Abuse: Provisions and Citations in Adult Protective Services Laws, by State. National Center on Elder Abuse, American Bar Association, and the Administration on Aging, United States Department of Health and Human Services. • American Probation and Parole Association. (2007). Elder Abuse, Neglect, and Exploitation State Statutes. Washington, D.C.: Office for Victims of Crime, Office of Justice Programs, United States Department of Justice.

More Related