Legal Issues Related to Elder Abuse

Legal Issues

Related to Elder Abuse

A Pocket Guide for Law Enforcement

Commission on

Law and Aging

By Lori A. Stiegel, JD

American Bar Association

Commission on Law and Aging

2014

“My colleagues and I need to know that when

we’re told ‘I could spend dad’s money because

I have his power of attorney’ we shouldn’t just

say ‘Oh, OK’ and walk out.”

—Dale Gillette, Lt. (ret.), Ross County,

Ohio Sheri’s Oice and Triad Coordinator,

Pickaway County, Ohio Sheri’s Oice

Acknowledgements and Disclaimers

This project was supported by Grant No. 2010-DJ-BX-K078 awarded by

the Bureau of Justice Assistance. The Bureau of Justice Assistance is a

component of the Oice of Justice Programs, which also includes the

Bureau of Justice Statistics, the National Institute of Justice, the Oice

of Juvenile Justice and Delinquency Prevention, the SMART Oice,

and the Oice for Victims of Crime. Points of view or opinions in this

document are those of the author and do not necessarily represent

the oicial position or policies of the U.S. Department of Justice.

The views expressed herein have not been approved by the House of

Delegates or the Board of Governors of the American Bar Association

(ABA) except where otherwise indicated, and, accordingly, should

not be construed as representing the policy of the American Bar

Association.

The ABA Commission on Law and Aging receives funding through

the ABA Fund for Justice and Education (FJE). The FJE is a 501(c)(3)

charitable fund of the ABA that supports over 200 ABA public service

and educational programs every year. All contributions to the FJE are

tax deductible to the full extent allowed by law.

How to

Use this

Guide

How to Use this Pocket Guide

Content Overview

This national guide provides brief explanations of:

• Legal concepts, documents, and tools that may be misused

to commit elder abuse or used properly to remedy it.

• Issues and actions that justice system professionals should

consider if they suspect elder abuse has occurred.

Blue Tabs: Background Information

Ì Types of Elder Abuse

Ì Abusers and Risk Factors

Ì Adult Protective Services

and Mandatory Reporting

Ì Consent, Capacity, and Undue

Influence

Ì Considerations for Community

Corrections Oicers

Multi-Colored Tabs: Legal Documents and Tools

Ì Deeds and Life Estates

Ì Guardians/Conservators

Ì Health Care Advance

Directives

Ì Joint Owners/Joint Accounts

Ì Medicaid Planning

Ì Powers of Attorney

Ì Nursing Homes and

Assisted Living

Ì Representative Payees and

VA Fiduciaries

Ì Trusts

Ì Reverse Mortgages

Ì Wills

Cross-Referenced Terms

Many of the legal concepts, documents, and tools are cross-

referenced in other sections of this guide. Terms in italics

indicate that there is a tab about that topic.

How to

Use this

Guide

Resources

Additional resources can be found on the last tab of this

guide.

Portability

The guide is small enough to carry with other equipment or be

attached to the visor of a patrol vehicle.

The guide can also be accessed online by computer or

smartphone at www.ambar.org/ElderAbuseGuides.

Order More Copies

For information on ordering more copies of this Guide,

visit:

www.ambar.org/ElderAbuseGuides.

Further Reading: A Desk Guide

Additional information can be found in Legal Issues

Related to Elder Abuse: A Desk Guide for Law

Enforcement, which is available at www.ambar.org/

ElderAbuseGuides.

The Desk Guide provides expanded information about each

of the topics covered in this Pocket Guide, as well as:

• tips for communicating with older individuals,

• the dierences between civil and criminal courts,

• entities that may be involved with elder abuse victims

or perpetrators, and

• additional resources.

Types

of Elder

Abuse

Types of Elder Abuse

Elder abuse is oen used as a general term that includes

physical, sexual, and psychological abuse; neglect; and financial

exploitation. Elder abuse harms millions of older people each

year. Victims may face increased risk of death, physical or

emotional injury, and financial ruin. Elder abuse costs society

billions of dollars annually in lost income and assets and in health

care, social services, and legal system expenses.

Acts of elder abuse oen violate one or more criminal laws. For

information about the types and definitions of elder abuse in your

state laws, visit your state’s statutory database or contact your

state’s adult protective services agency (see the Resources tab).

The following seven pages reproduce the National Center on Elder

Abuse lists of seven major types of elder abuse, their general

definitions, and possible indicators of each type (www.ncea.

aoa.gov/FAQ/Type_Abuse/index.aspx). The Guide’s author has

made a few revisions shown in [brackets] to the lists of possible

indicators, and also added a list of possible crimes for each type

of elder abuse. These lists are just a starting point. There are other

indicators for each type of elder abuse. Also, state laws may define

more or fewer types of elder abuse, use dierent definitions, and

include other crimes that might be charged.

Be aware that many elder abuse victims experience

more than one type of abuse (polyvictimization).

For example, perpetrators may use physical abuse

or threaten nursing home placement to financially

exploit the victim.

Types

of Elder

Abuse

Physical Abuse

“...the use of physical force that may result in bodily injury, physical

pain, or impairment.

“Physical abuse may include but is not limited to such acts of

violence as striking (with or without an object), hitting, beating,

pushing, shoving, shaking, slapping, kicking, pinching, and burning.

“In addition, inappropriate use of drugs and physical restraints,

force-feeding, and physical punishment of any kind also are

examples of physical abuse.”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì bruises, black eyes, welts,

lacerations, and rope marks;

Ì bone fractures, broken bones,

and skull fractures;

Ì open wounds, cuts, punctures,

untreated injuries in various

stages of healing;

Ì sprains, dislocations, and

internal injuries/bleeding;

Ì broken eyeglasses/frames,

physical signs of being subjected

to punishment, and signs of

being restrained;

Ì laboratory findings of

medication overdose or under-

utilization of prescribed drugs;

Ì an elder’s report of being hit,

slapped, kicked, or mistreated;

Ì an elder’s sudden change in

behavior; and

Ì the caregiver’s refusal to allow

visitors to see an elder alone.”

Possible Crimes

Ì Assault

Ì Aggravated assault

Ì Attempted murder

Ì Battery

Ì Domestic violence

Ì Elder abuse

Ì Kidnapping

Ì Manslaughter

Ì Murder

Types

of Elder

Abuse:

Physical

Types

of Elder

Abuse

Sexual Abuse

“...non-consensual sexual contact of any kind with an elderly

person. Sexual contact with any person incapable of giving

consent is also considered sexual abuse. It includes, but is not

limited to, unwanted touching, all types of sexual assault or

battery, such as rape, sodomy, coerced nudity, and [the taking

of] sexually explicit photo[s or videos].”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì bruises around the breasts

or genital area;

Ì unexplained venereal

disease or genital infections;

Ì unexplained vaginal or anal

bleeding;

Ì torn, stained, or bloody

underclothing; and

Ì an elder’s report of

[improper touching or of]

being sexually assaulted or

raped.”

Possible Crimes

Ì Assault

Ì Aggravated assault

Ì Battery

Ì Domestic violence

Ì Elder abuse

Ì Rape

Ì Sexual assault

Ì Sexual battery

Ì Traicking

Types

of Elder

Abuse:

Sexual

Types

of Elder

Abuse

Emotional or Psychological Abuse

“...the infliction of anguish, pain, or distress through verbal or

nonverbal acts. Emotional/psychological abuse includes but

is not limited to verbal assaults, insults, threats, intimidation,

humiliation, and harassment. In addition, treating an older

person like an infant; isolating an elderly person from his/her

family, friends, or regular activities; giving an older person the

‘silent treatment’; and enforced social isolation are examples

of emotional/psychological abuse.”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì being emotionally upset or

agitated;

Ì being extremely withdrawn

and non-communicative or

non-responsive;

Ì unusual behavior usually

attributed to dementia

(e.g., sucking, biting,

rocking); and

Ì an elder’s report of being

verbally or emotionally

mistreated.”

Possible Crimes

Ì Elder abuse

Ì Harassment

Ì Hate crimes

Types

of Elder

Abuse:

Emotional

Types

of Elder

Abuse

Abandonment

“...the desertion of an elderly person by an individual who

has assumed responsibility for providing care for an elder,

or by a person with physical custody of an elder.”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì the desertion of an elder at a

hospital, a nursing facility, or

other similar institution;

Ì the desertion of an elder at

a shopping center or other

public location; and

Ì an elder’s own report of

being abandoned.”

Possible Crimes

Ì Elder abuse

Ì Manslaughter

Ì Murder

Ì Neglect

Ì Negligent or involuntary

homicide

Types

of Elder

Abuse:

Abandon-

ment

Types

of Elder

Abuse

Neglect

“...the refusal or failure to fulfill any part of a person’s obligations

or duties to an elder. Neglect may also include failure of a person

who has fiduciary responsibilities to provide care for an elder

(e.g., pay for necessary home care services) or the failure on the

part of an in-home service provider to provide necessary care.

“Neglect typically means the refusal or failure to provide an

elderly person with such life necessities as food, water, clothing,

shelter, personal hygiene, medicine, comfort, personal safety,

and other essentials included in an implied or agreed-upon

responsibility to an elder.”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì dehydration, malnutrition,

untreated bed sores, and poor

personal hygiene;

Ì unattended or untreated

health problems;

Ì hazardous or unsafe living

condition/arrangements

(e.g., improper wiring,

[inappropriate temperatures],

or no running water);

Ì unsanitary and unclean

living conditions

(e.g., dirt, fleas, lice on

person, soiled bedding,

fecal/urine smell,

inadequate clothing); and

Ì an elder’s report of being

mistreated.”

Possible Crimes

Ì Elder abuse

Ì Manslaughter

Ì Murder

Ì Neglect

Types

of Elder

Abuse:

Neglect

Types

of Elder

Abuse

Financial or Material Exploitation

“...the illegal or improper use of an elder’s funds, property, or assets. Examples

include, but are not limited to, cashing an elderly person’s checks without

authorization or permission; forging an older person’s signature; misusing

or stealing an older person’s money or possessions; coercing or deceiving

an older person into signing any document (e.g., contracts or will); and the

improper use of conservatorship, guardianship, or power of attorney.”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì sudden changes in bank account

or banking practice, including

an unexplained withdrawal of

large sums of money by a person

accompanying the elder;

Ì the inclusion of additional names

on an elder’s bank signature card;

Ì unauthorized withdrawal of the

elder’s funds using the elder’s ATM

card;

Ì abrupt changes in a will or other

financial documents;

Ì unexplained disappearance of funds

or valuable possessions;

Ì substandard care being provided or

bills unpaid despite the availability

of adequate financial resources;

Ì discovery of an elder’s signature

being forged for financial

transactions or for the titles of his/

her possessions;

Ì sudden appearance of previously

uninvolved relatives claiming their

rights to an elder’s aairs and

possessions;

Ì unexplained sudden transfer of

assets to a family member or

someone outside the family;

Ì the provision of services that are

not necessary; and

Ì an elder’s report of financial

exploitation.”

Possible Crimes

Ì Elder abuse

Ì Embezzlement

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (e.g., credit card,

tax, or Medicaid)

Ì Identity the

Ì Larceny

Ì Money laundering

Ì The

Ì Traicking

Types

of Elder

Abuse:

Financial

Types

of Elder

Abuse

Self-Neglect

“...the behavior of an elderly person that threatens his/her own health or

safety. Self-neglect generally manifests itself in an older person as a refusal or

failure to provide himself/herself with adequate food, water, clothing, shelter,

personal hygiene, medication (when indicated), and safety precautions.

“The definition of self-neglect excludes a situation in which a mentally

competent older person, who understands the consequences of his/her

decisions, makes a conscious and voluntary decision to engage in acts that

threaten his/her health or safety as a matter of personal choice.”

Possible Indicators

“Signs and symptoms ... include but are not limited to:

Ì dehydration, malnutrition,

untreated or improperly attended

medical conditions, and poor

personal hygiene;

Ì hazardous or unsafe living

conditions/arrangements (e.g.,

improper wiring, no indoor

plumbing, no heat, no running

water, [hoarding]);

Ì unsanitary or unclean living quarters

(e.g., animal/insect infestation, no

functioning toilet, fecal/urine smell);

Ì inappropriate and/or inadequate

clothing, lack of the necessary

medical aids (e.g., eyeglasses,

hearing aids, dentures); and

Ì grossly inadequate housing or

homelessness.”

Possible Crimes

Self-neglect is NOT a crime. However, it has two connections to the criminal

justice system:

Ì Self-neglecting behaviors may be an indicator or result of some other type

of elder abuse (e.g., financial exploitation may result in an older person not

being able to aord food or utilities); and

Ì An older person who is self-neglecting may come to the attention of the

criminal justice system before coming to the attention of adult protective

services because of criminal behavior (e.g., law enforcement may be asked

to investigate allegations that a self-neglecter is abusing or neglecting

a child or dependent adult, is committing animal abuse or neglect, or is

violating municipal codes by hoarding animals or other things).

Types

of Elder

Abuse:

Self-

Neglect

Abusers

& Risk

Factors

Abusers

Older persons may be abused, neglected, or exploited by:

• Family members, such as spouses or partners, adult children,

grandchildren or great-grandchildren, or other relatives

• Caregivers, whether paid (such as sta of home care agencies

or nursing homes) or volunteers

• Fiduciaries, including agents under a power of attorney,

court-appointed guardians or conservators, trustees of a

trust, or other professionals who have an obligation to act in

their clients’ best interests (e.g., financial advisors, lawyers,

and real estate agents)

• Friends

• Neighbors

Individual state laws may define elder abuse in ways that include

other categories of abusers. For example, a state’s law also may

define consumer scams or crimes committed by strangers as

elder abuse.

Abusers

& Risk

Factors

Risk Factors

Risk factors are circumstances that seem related to elder abuse.

Their existence does not mean that elder abuse is occurring, but

their absence does not mean that it is not occurring. Be aware

of these risk factors, especially if other indicators such as those

listed in Types of Elder Abuse are observed.

• Risk factors for being a victim may include:

Ì Dementia

Ì Isolation, such as being homebound or homeless

Ì Lack of social support, such as lack of family or friends

nearby

Ì Living with other people

Ì Mental illness

Ì Physical impairments

Ì Substance abuse

• Risk factors for being a perpetrator may include:

Ì Dependence of the perpetrator on the victim for

financial or other forms of support

Ì History of abuse, neglect, or exploitation

Ì Living with the victim

Ì Mental illness

Ì Substance abuse

Adult

Protective

Services &

Mandatory

Reporting

Adult Protective Services

State or local adult protective services (APS) agencies

receive and investigate reports of suspected elder abuse;

visit alleged victims to determine if they need protection and

have capacity to accept or refuse protective services; and

if warranted, arrange or refer the victim to other services.

Other services may include financial management, food

delivery, health care, home repair or cleaning, housing

(emergency or long-term), legal assistance, transportation,

and victim assistance and compensation.

State law governs what types of elder abuse and what

categories of victims an APS agency may investigate.

APS agencies refer cases to law enforcement if sta members

believe that a crime has occurred. APS professionals and

records may be important sources of evidence.

In your state or community, the APS agency may be called

something else. For example, a few states have separate

programs for adult protective services and elder protective

services. For more information on finding state or local APS

agencies, check the Resources tab.

Adult

Protective

Services &

Mandatory

Reporting

Mandatory Reporting

▶ Key Definitions and Facts

• In almost every state the adult protective services (APS) law

mandates that certain professionals or other individuals

report suspected elder abuse to the APS agency. Failure to

report is usually a crime.

• State laws vary as to who is considered to be a mandatory

reporter. Some states mandate reports by law enforcement—

or by anyone who suspects elder abuse—to APS.

• Other state or federal laws may require that reports be made

to other agencies.

• Some APS laws require that under certain circumstances

persons making reports to APS must also file a report with

law enforcement or other agencies.

▶ Actions to Consider

• A mandatory reporter’s failure to report suspected elder

abuse may be a crime under state or federal law.

• Consider whether failure or delay in making a report

resulted in the victim suering further harm, other victims

experiencing elder abuse, or the perpetrator not being held

accountable.

• Consider whether failure or delay in making a mandatory

report allowed evidence to be lost, altered, or destroyed.

• Consider whether failure or delay in making a report is

evidence of a cover up or conspiracy.

• Make a report to APS if you suspect elder abuse and the case

was not referred to your agency by APS.

Consent,

Capacity,

& Undue

Influence

Consent, Capacity,

and Undue Influence

Lack of consent is an element of many crimes, such as sexual

assault or the. Adults may be unable to give valid consent

because they do not have decision-making capacity or because

they are victims of undue influence.

▶ Consent: Key Definitions and Facts

• Consent means a decision to do something or to allow

something to happen.

• Consent may be given in writing, verbally, or through

indicators such as nodding.

• Generally, to give legally valid consent, a person must:

Ì Have decision-making capacity,

Ì Have knowledge of the true nature of an act, and

Ì Act freely and voluntarily.

• Lack of legally valid consent may be an element of a crime

(e.g., sexual assault, the).

▶ Decision-Making Capacity: Key Definitions and Facts

• Decision-making capacity (capacity) means the cognitive

ability to make a decision. Sometimes laws or practitioners

use the term competence or competency to mean the same

thing as capacity.

• Capacity may fluctuate over time and even over the course

of a day.

Consent,

Capacity,

& Undue

Influence

• There are dierent standards of capacity for dierent types

of decisions. For financial decisions, a person at least must

understand the nature of and the potential eect of the

decision. State laws or court decisions may define what

standard of capacity is required for a financial decision or

action (e.g., making a contract or will).

• The law presumes that adults have capacity, unless a court

decides dierently and appoints a guardian/conservator to

make decisions for the adult.

▶ Undue Influence: Key Definitions and Facts

• Undue influence is a psychological and legal concept.

• Psychologist Margaret Singer defined undue influence as

“when people use their role and power to exploit the trust,

dependency, and fear of others. They use this power to

deceptively gain control over the decision-making of the

second person.”

• Legal definitions of undue influence vary somewhat. Courts

generally consider:

Ì The relationship between the alleged influencer and

alleged victim,

Ì The alleged victim’s vulnerability to undue influence,

Ì The alleged influencer’s opportunity to gain control, and

Ì Whether the alleged victim’s decisions were the outcome

of the undue influence.

• A person with decision-making capacity can be unduly

influenced, but it is easier to commit undue influence on

someone who has diminished capacity.

Consent,

Capacity,

& Undue

Influence

• Generally, a victim of undue influence will not recognize

what is happening and will side with the perpetrator.

• Undue influence invalidates consent. Even if the victim

has capacity, a decision made as a result of undue

influence is neither knowing nor voluntary.

• Consent, decision-making capacity, and undue influence

are critical issues in many elder abuse cases.

Ì When these issues are raised, law enforcement and

prosecutors will probably need to obtain, analyze,

and use other forms of evidence besides the alleged

victim’s testimony.

Ì Capacity to make past decisions will be critical in

many elder abuse cases. If the alleged victim clearly

lacked capacity, his or her consent cannot be legally

valid. But a person who had suicient capacity to

make a decision cannot have given valid consent if the

decision was not knowing and voluntary due to undue

influence, fraud, or coercion.

• Consider whether the alleged victim had capacity to

make the decisions in question.

• Determine whether the victim has had a capacity

assessment or whether one is necessary. Skilled

clinicians can retroactively assess capacity.

▶ Relevance to Elder Abuse

▶ Actions to Consider

Consent,

Capacity,

& Undue

Influence

• The Mini-Mental Status Exam (MMSE or mini-mental) that is

widely used by adult protective services (APS) does not assess

decision-making capacity.

Ì Ideally, a capacity assessment should be conducted by a

medical or mental health professional who understands

how to conduct assessments, knows the pros and cons

of existing assessment instruments, and has experience

conducting assessments.

• Do not limit an investigation to the issue of capacity. Consider

whether the alleged victim’s decisions may have resulted

from coercion, fraud, intimidation, misrepresentation,

threats, or undue influence.

• Make a report to APS.

Community

Corrections

Consider-

ations

Considerations for Community

Corrections Oicers

• Consider whether it is appropriate for an oender to live

or work with older persons who have diminished decision-

making capacity or who are vulnerable to coercion, fraud,

intimidation, misrepresentation, threats, or undue influence.

Additional supervision may be warranted.

• Consider whether it is lawful or appropriate for an oender

to work in a nursing home or residential care facility. Assess

whether the oender’s past crimes indicate a propensity to

commit crimes against facility residents.

• If an oender is working in a facility, assess whether

additional or dierent supervision is necessary. Conduct

some supervision in the facility, and be alert to signs of

possible elder abuse. A state’s law or an agency’s policies

may require that you notify some other agency if an oender

is working in a certain type of facility.

• Consider whether it is lawful or appropriate for an oender to

be placed as a resident in a nursing home or residential care

facility. Also consider whether your state law or agency policy

requires that the long-term care facility’s management or

another agency be notified.

• Determine whether your state’s law requires community

corrections oicers to report suspected elder abuse by an

oender to adult protective services or some other agency.

▶ Consent, Capacity, and Undue Influence

▶ Nursing Homes and Assisted Living Facilities

Deeds and Life Estates

An older person’s home may be taken through financial

exploitation involving deeds or life estates.

• A deed is a legal document that transfers ownership of real

estate to someone else. A deed may be used to add someone

as a joint owner of the property. If there is a mortgage on the

property, the deed does not aect the owner’s obligation to

pay the mortgage.

• There are dierent types of deeds. The type of deed seen

most oen in cases involving elder abuse is the quitclaim

deed (oen incorrectly called a quickclaim deed). Quitclaim

deeds transfer some or all of an owner’s interest in the

property without making any legal guarantee that the

interest was valid.

• A life estate is created when an owner deeds real estate to

someone else but reserves the right to continue living on

the property for the remainder of his or her life or until some

other specified event occurs. It is possible to inherit a life

estate in property from someone else. A person who inherits

a life estate cannot sell or give away the property but only

can use it for the remainder of his or her life.

• Deeds may be misused to commit financial exploitation in

the following ways:

▶ Key Definitions and Facts

▶ Relevance to Elder Abuse

Deeds &

Life

Estates

Ì Someone who may benefit destroys a deed to prevent the

owner from transferring property to someone else.

Ì Someone steals the identity of the property owner and

forges the deed.

Ì An owner who lacks appropriate decision-making capacity

is coerced, induced, threatened, or tricked into signing a

deed.

Ì An owner with capacity signs a deed as a result of fraud,

misrepresentation, or undue influence.

• A person who has a life estate in property also may be

financially exploited through misuse of a deed. For example:

Ì Someone who may benefit destroys a deed to eliminate

evidence that the older person has a life estate in the

property.

Ì Someone steals the identity of the property owner and

forges a deed giving up the life estate.

Ì An owner who lacks appropriate decision-making capacity

is coerced, induced, threatened, or tricked into signing a

deed giving up the life estate.

Ì An owner with capacity signs a deed giving up the life

estate as a result of fraud, misrepresentation, or undue

influence.

• Problems may come to light before or aer the older person

dies. There may be multiple victims:

Ì the older person whose property may have been stolen or

whose estate plans may have been altered,

Ì other joint owners, or

Ì the person(s) to whom the owner ultimately intended to

give the property.

Deeds &

Life

Estates

▶ Actions to Consider

• The circumstances surrounding the preparation, signing, or

destruction of a deed may constitute a local, state, or federal

crime relative to:

Ì Conspiracy

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud

Ì Identity the

Ì Larceny

Ì The

• Consider whether there are other victims, such as joint

owners whose interests were harmed.

• Consider whether the alleged perpetrator is in a position

(e.g., a caregiver, guardian/conservator, or lawyer) to

victimize other older people.

• If the older person has died, consider whether death may

have been caused or hastened by someone who may benefit

financially.

• Make a report to adult protective services.

▶ Actions to Consider

Deeds &

Life

Estates

Guardians/Conservators

A guardian or conservator is appointed by a court to make

personal and/or property decisions for a person who does

not have decision-making capacity. Sometimes guardians or

conservators misuse their legal authority in ways that result in

financial exploitation or neglect of the incapacitated person.

▶ Key Definitions and Facts

• A court may appoint someone to make personal and/or

financial decisions for a person if a judge or a jury decides

the person lacks capacity to make decisions.

• Generally, the appointed decision-maker is called a

guardian or conservator. A state may use dierent terms,

however.

• The court issues an order or a letter listing the authority

that the guardian/conservator has over the incapacitated

person. The authority may be limited or full (plenary).

• A guardian/conservator has a legal duty to act as a

fiduciary. This means, generally, that the guardian/

conservator must act in a totally trustworthy manner and

make decisions that are consistent with decisions that

the incapacitated person made before losing decision-

making capacity or that are in the incapacitated person’s

best interest.

▶ Key Definitions and Facts

Guardians/

Conserva-

tors

▶ Relevance to Elder Abuse

• Someone may wrongfully take an individual to another state

to get or avoid a guardianship/conservatorship.

• A guardian’s/conservator’s misuse of legal authority may

result in financial exploitation or neglect. For example:

Ì The guardian/conservator exceeds the authority given

by the court (e.g., makes health care decisions when not

given that authority).

Ì The guardian/conservator self-deals (e.g., pays his or her

own bills with the incapacitated person’s money or sells

the incapacitated person’s house below market rate to a

relative).

Ì The guardian/conservator acts contrary to the

incapacitated person’s best interests (e.g., because of

financial motives, the guardian/conservator fails to pay for

adequate health care services, isolates the incapacitated

person from family or friends, or fails to ask the court

to end the guardianship/conservatorship when the

incapacitated person regains capacity).

▶ Actions to Consider

• Consider whether a guardian’s/conservator’s breach of

fiduciary duty violates local, state, or federal laws relative to:

Ì Elder abuse

Ì Embezzlement

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (e.g., credit card,

tax, or Medicaid)

Ì Larceny

Ì Money laundering

Ì Neglect

Ì The

▶ Actions to Consider

▶ Relevance to Elder Abuse

Guardians/

Conserva-

tors

• Obtain and analyze the court’s monitoring documents

as evidence; determine whether reports have been

submitted when required.

• Ask the person claiming to be a guardian/conservator to

produce a court’s order or letter. Investigate further if that

person cannot or will not produce a court document, if

the document does not name the person as the guardian/

conservator, or if the document does not appear to allow

the actions in question. If it is not clear whether the

document names that person as guardian/conservator

or allows the actions in question, contact the court or ask

the prosecutor’s oice for an opinion.

• If allowed by law, initiate actions to freeze the

incapacitated person’s assets or take other steps to stop

the guardian/conservator from dissipating remaining

assets.

• Consider whether the guardian/conservator is in a

position to do this to others.

• Consider notifying the court if a guardian/conservator is

under criminal investigation.

• If the incapacitated person has died, consider whether

death may have been caused or hastened by actions or

inactions of the guardian/conservator.

• Make a report to adult protective services.

Guardians/

Conserva-

tors

Advance Directives:

Health Care Power of Attorney,

Health Care Proxy, and Living Will

Advance directives are used to provide directions about health

care decisions in case a person loses the capacity to make or the

ability to express those decisions. Advance directives and elder

abuse sometimes intersect in ways that may involve crimes.

▶ Key Definitions and Facts

• Advance directive is a general term for two documents that

individuals can use to guide decisions about future health

care if they lose the capacity to make or the ability to express

those decisions themselves:

Ì A health care power of attorney, also known as a health

care proxy, is used by a person (the principal) to give

someone else (the proxy or agent) legal authority to make

health care decisions for the principal.

Ì A living will instructs the proxy, some other decision-

maker (such as a guardian/conservator), or health care

providers about the type of care (including emergency

treatment) that a person wants or does not want.

• A person must have appropriate decision-making capacity to

make an advance directive.

▶ Relevance to Elder Abuse

• Elder abuse may occur before the advance directive is signed.

Ì A person who lacks appropriate decision-making capacity

to make an advance directive may be coerced, persuaded,

threatened, or tricked into signing.

▶ Key Definitions and Facts

▶ Relevance to Elder Abuse

Health

Care

Advance

Directives

Ì A person with capacity may sign the advance

directive because of undue influence, duress, fraud, or

misrepresentation.

Ì Someone may prepare an advance directive that does not

reflect the person’s wishes.

Ì The signature on an advance directive may be forged.

• Providing health care treatment to a person whose advance

directive indicates that such treatment is not wanted could

be considered physical abuse. Failure to provide or arrange

for treatment for a person whose advance directive indicates

that such treatment is desired could be considered neglect.

Ì A proxy may make decisions that are contrary to the older

person’s wishes.

Ì A proxy may make decisions that the advance directive or

state law does not authorize the proxy to make.

• A proxy may make treatment decisions that are inconsistent

with the guidance provided in an advance directive (or

otherwise known) and are not in the older person’s best

interest. Motives may include:

Ì Hastening the older person’s death to receive an

inheritance or end the burden of acting as a caregiver.

Ì Saving money.

Ì Preventing changes to the status quo, such as having

to move out of the older person’s home or losing other

financial support provided by the older person.

Ì Preventing family members, adult protective services

(APS), or law enforcement from having access to the older

person.

Ì Covering up evidence of a crime.

Health

Care

Advance

Directives

• Family members may disagree about who the proxy is, what

health care instructions were provided, or what treatment

should be given. These disputes may involve allegations of

elder abuse by one family member against another.

▶ Actions to Consider

• The circumstances surrounding the signing of an advance

directive or the proxy’s activities or decisions may violate

local, state, or federal laws relative to:

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (e.g., credit card, tax, or

Medicaid)

Ì Identity the

Ì Larceny

Ì Manslaughter

Ì Murder

Ì Neglect

Ì The

• Investigate further if a person claiming to be a proxy cannot

or will not produce the advance directive, if the document

does not name the person as a proxy, or if the document does

not appear to allow the decisions in question. If it is not clear

whether an advance directive names that person as proxy

or authorizes the decisions in question, ask the prosecutor’s

oice for an opinion.

• Consider whether it is necessary to protect the older person

from physical or financial harm by taking temporary custody

of the older person.

• If the older person has died, consider whether death may

have been caused or hastened by actions or decisions that

were contrary to the older person’s wishes.

• Make a report to APS.

▶ Actions to Consider

Health

Care

Advance

Directives

Joint Owners/Joint Accounts

Bank or credit union accounts, investments, securities, real

estate, and other forms of property can be owned by more than

one person. Sometimes an older person gives away or loses joint

ownership of property through financial exploitation.

▶ Key Definitions and Facts

• Bank or credit union accounts, investments, securities, real

estate, and other forms of property can be owned by more

than one person. This is generally called joint ownership; it

can take several dierent forms.

• The form of joint ownership governs how much of the

property is owned by each joint owner, the rights of each

owner to use or sell the property, and what happens to the

property aer an owner dies.

• Common forms of joint ownership that might be

encountered in a legal document (such as a deed for a

house or a retirement account statement) include:

Ì Joint account: an account in the name of more than one

person.

Ì Joint tenancy: usually means the surviving owner is

entitled to all the property.

Ì Tenancy by the entireties: usually refers to ownership

by a husband and wife, with the survivor entitled to all

the property.

▶ Key Definitions and Facts

Joint

Owners/

Joint

Accounts

Ì Tenancy in common: usually means each owner is

entitled to a percentage of the property, and his or her

survivors only inherit that percentage.

• The specific meaning of these terms may be established

by the legal document in which they appear, or by state or

federal law.

▶ Relevance to Elder Abuse

Financial exploitation related to joint ownership can occur if:

• A person named on a bank account only for convenience

takes all or most of the money from the account.

• Someone who may benefit financially is involved in

establishing a joint ownership through acts such as

forgery, fraud, identity the, misrepresentation, or undue

influence that does not reflect the older person’s true

wishes.

• A person without appropriate decision-making capacity is

coerced, induced, threatened, or tricked into establishing

joint ownership that financially benefits another person.

• A joint owner with capacity gives up his or her interest in

property to another joint owner as a result of coercion,

fraud, inducements, misrepresentation, threats, trickery,

or undue influence.

▶ Relevance to Elder Abuse

Joint

Owners/

Joint

Accounts

▶ Actions to Consider

• The circumstances surrounding establishment of joint

ownership or the sale or transfer of jointly owned property

may constitute a local, state, or federal crime relative to:

Ì Conspiracy

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud

Ì Identity the

Ì Larceny

Ì The

• If a joint owner was legally entitled to all the money in the

account or to full control of the property, prosecution may

be diicult or impossible.

• If the older person has died, determine whether the death

was caused or hastened by a joint owner or someone else

who may benefit financially.

• Consider whether there are other victims, such as the older

person’s intended recipients of the jointly owned property

or other joint owners whose interests were harmed.

• Consider whether the alleged perpetrator is in a position

(e.g., a caregiver, guardian/conservator, or lawyer) to

victimize other older people.

• Make a report to adult protective services.

▶ Actions to Consider

Joint

Owners/

Joint

Accounts

Medicaid Planning

Medicaid planning is a term used for the process of spending

down assets to become poor enough to qualify for Medicaid

payment of long-term care. Medicaid planning is legal, but the

circumstances surrounding the process may involve elder abuse.

Also, the need for Medicaid benefits may be an indicator of

financial exploitation.

▶ Key Definitions and Facts

• Medicaid pays for long-term care services provided to

adults who (1) are over age 65, or blind, or disabled;

and (2) have low incomes and limited assets. Your state

may use a dierent name for the program. For example,

California refers to it as Medi-Cal, Tennessee’s program is

Tenncare, and some states call it Medical Assistance.

▶ Relevance to Elder Abuse

• Even though Medicaid planning is legal, the circumstances

may involve financial exploitation by an older person’s

relatives who want to preserve family assets for themselves

or by other individuals. Examples include:

Ì A person lacking appropriate decision-making capacity is

coerced, persuaded, threatened, or tricked into engaging

in Medicaid planning.

Ì A person with decision-making capacity participates in

the process because of undue influence, duress, fraud, or

misrepresentation.

▶ Key Definitions and Facts

▶ Relevance to Elder Abuse

Medicaid

Planning

Ì A lawyer prepares Medicaid planning documents at the

request of the older person’s relative and never talks to

the older person to ensure that he or she wants to do

Medicaid planning and has appropriate decision-making

capacity.

Ì The older person’s signature is forged on documents used

for Medicaid planning.

Ì A guardian/conservator, agent under a power of attorney,

or trustee of a trust engages in Medicaid planning without

having legal authority to do so, or makes decisions that do

not reflect the older person’s wishes or are not in the older

person’s best interests.

Ì A lawyer or other person misappropriates the older

person’s assets under the guise of Medicaid planning.

• Family members may disagree about whether the older per-

son should move into a nursing home or whether Medicaid

planning should occur. These disputes may involve allega-

tions of elder abuse by one family member against another.

• A person applying for Medicaid who seemingly had adequate

assets to pay for long-term care (at least for a while) may

have been financially exploited.

• The state Medicaid agency may deny benefits to a victimized

older person because the spend-down of assets violated

the Medicaid rules. The older person may then apply for a

“hardship exemption” by claiming that he or she should

not be penalized for being a victim of financial exploitation.

The Medicaid agency will likely consider whether there

was an investigation by adult protective services (APS), law

enforcement, or both, or prosecution of the perpetrator.

Medicaid

Planning

▶ Actions to Consider

• The circumstances surrounding the preparation or signing

of documents for Medicaid planning purposes may

constitute a local, state, or federal crime relative to:

Ì Conspiracy

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Identity the

Ì Larceny

Ì Medicaid fraud

Ì The

• Consider whether the alleged perpetrator is in a position

(e.g., a caregiver, guardian/conservator, or lawyer) to

victimize other older people.

• Make a report to APS.

▶ Actions to Consider

Medicaid

Planning

Powers of Attorney

A power of attorney is a legal document that may be used

to plan for possible incapacity because it gives someone

authority to act for the person who made the document.

It can be misused to financially exploit an older person.

▶ Key Definitions and Facts

• A power of attorney is a legal document used by someone

(the principal) to give someone else (the agent or

attorney-in-fact) the authority to act for the principal.

• A principal must have decision-making capacity to sign a

power of attorney.

• An agent’s authority ends when the principal revokes that

authority or when the principal dies.

• All states allow individuals to make a durable power of

attorney, which stays in eect even if the principal loses

decision-making capacity. Most states require a principal

to indicate in the power of attorney that it is intended to

be durable, but a growing number of states presume that

a power of attorney is durable unless the document says it

is not. Durability is relevant to the question of whether the

agent had authority to take the actions in question. The

rest of this section uses POA/DPA to mean a power of

attorney that is durable.

• An agent has a legal duty to act as a fiduciary. Generally

this means the agent must act in a totally trustworthy

manner and make decisions that are consistent with

decisions that the principal made previously or that are in

the principal’s best interest.

▶ Key Definitions and Facts

Powers of

Attorney

▶ Relevance to Elder Abuse

• An agent can misuse the POA/DPA to financially exploit the

principal. Usually called POA/DPA abuse, this can occur in

several ways.

Ì Before the POA/DPA is signed:

▪ A principal without appropriate decision-making

capacity is persuaded, coerced, induced, threatened,

or tricked into signing a POA/DPA.

▪ A principal with decision-making capacity signs the

POA/DPA because of undue influence, duress, fraud,

or misrepresentation.

▪ An agent or someone helping the agent (e.g., a

lawyer) prepares a POA/DPA that does not reflect the

principal’s wishes.

▪ A principal’s signature is forged.

Ì Aer the POA/DPA is signed:

▪ An agent exceeds the authority given. For example,

an agent makes gis when not given that authority.

▪ An agent engages in self-dealing. For example, an

agent pays his or her own bills with the principal’s

money.

▪ An agent’s actions conflict with the principal’s

expectations. For example, an agent has authority

to make gis but does so in a way that undoes or

undermines the principal’s plan for giving away

assets aer death.

▶ Relevance to Elder Abuse

Powers of

Attorney

▶ Actions to Consider

• An agent who commits POA/DPA abuse may have violated

local, state, or federal laws relative to:

Ì Elder abuse

Ì Embezzlement

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (e.g., credit card,

tax, or Medicaid)

Ì Identity the

Ì Larceny

Ì Money laundering

Ì The

• Investigate further if the alleged agent cannot or will not

produce the POA/DPA, if the document does not name the

person as an agent, or if the document does not appear to

allow the decisions in question.

• If allowed by law, initiate action to freeze the principal’s

assets or take other steps to stop dissipation of any

remaining assets.

• If the principal has died, consider whether death may have

been caused or hastened by an agent who may benefit

financially.

• Consider whether there are other victims, such as the

intended recipients named in the principal’s will.

• Consider whether the agent is in a position (e.g., a

caregiver or lawyer) to victimize other people.

• Make a report to adult protective services.

▶ Actions to Consider

Powers of

Attorney

Long-Term Care Facilities:

Nursing Homes, Assisted Living,

Board and Care Homes, and Other

Residential Care Facilities

Residents of long-term care facilities are vulnerable to abuse

(including sexual abuse), neglect, and exploitation by sta,

family members, visitors to the facility, or other residents. Elder

abuse in a care facility may be a crime, just as it is in someone’s

house or apartment. The failure to report elder abuse that has

occurred in a facility may also be a crime.

▶ Key Definitions and Facts

• Long-term care facility is a general term that includes two

categories:

Ì Nursing homes

Ì Residential care facilities (e.g., assisted living

facilities, board and care homes, personal care homes)

• Unlicensed residential care facilities exist. There are two

reasons for the lack of a license:

Ì The facility does not have enough beds to trigger the

local or state licensure requirement.

Ì The facility is required to be licensed but is operating

illegally.

• State law may require criminal background checks for

employees or contractors of nursing homes or residential

care facilities.

▶ Key Definitions and Facts

Nursing

Homes &

Assisted

Living

▶ Relevance to Elder Abuse

• Residents of nursing homes and other types of long-

term care facilities can be highly vulnerable to physical

and sexual abuse, neglect, financial exploitation, and

emotional/psychological abuse by:

Ì Facility management and sta

Ì Visitors to the facility, including:

▪ Contractors or other workers

▪ Residents’ own family members or guests

▪ Family members or guests of other residents

Ì Other residents

• Elder abuse may occur in numerous ways in a long-term

care facility. Examples include:

Ì Physical abuse: broken bones, bruises, burns,

lacerations, or other physical injuries; hitting, kicking,

punching, or shoving; and the inappropriate use of

chemical or physical restraints.

Ì Sexual abuse: rape, nonconsensual or unwanted

touching, and improper touching during bathing or

medical treatment.

Ì Neglect: the failure to provide or the inadequate

provision of food, medication, treatment, basic care,

and supervision may result in amputations, bed

sores (also called pressure sores or decubitus ulcers),

dehydration, malnutrition, other medical problems,

and death. Nurses or other sta may dilute or divert

residents’ pain medications to sell or for personal use.

▶ Relevance to Elder Abuse

Nursing

Homes &

Assisted

Living

Ì Financial exploitation: stealing a resident’s belongings,

benefit checks and spending money, credit cards,

checks, or identity.

Ì Emotional/psychological abuse: belittling, humiliating,

intimidating, teasing, threatening, or yelling at a

resident.

• Facility management and sta may be required by federal—

and possibly by state—law to report suspected or known

elder abuse or acts that constitute criminal activity to law

enforcement, adult protective services (APS), or some other

government agency. The failure to report may be a crime

and may be an indicator that evidence was tampered with

or destroyed.

▶ Actions to Consider

• Abuse, neglect, or exploitation occurring in a long-term care

facility may violate local, state, or federal laws relative to:

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (e.g., credit card, tax, or

Medicaid)

Ì Identity the

Ì Larceny

Ì Manslaughter

Ì Murder

Ì Neglect

Ì Rape

Ì Sexual assault

Ì The

• Consider whether the alleged perpetrator is in a position to

victimize other residents.

▶ Actions to Consider

Nursing

Homes &

Assisted

Living

• A care facility’s failure to conduct criminal background

checks on its employees or contractors may violate state

law.

• Determine whether the facility management or sta were

required by either federal or state law to report suspected

or known elder abuse or criminal activity and whether

such reports were made.

• Make a report to the state licensure and certification

agency if appropriate or required.

• If facility management or sta say they could not report

suspected crime or cannot provide evidence because they

must protect residents’ “protected health information”

under the federal Health Insurance Portability and

Accountability Act (HIPAA), talk to your agency’s lawyer.

The HIPAA law has exceptions for law enforcement

investigations and for reporting suspected elder abuse.

• Take emergency custody of the resident if it is within

your agency protocols and it would not cause the person

further harm. Hospitalization may be necessary. APS, the

long-term care ombudsman program, or other agencies

with responsibility for facility residents may be able to

make other temporary or permanent care arrangements.

• If the resident has died, consider whether death may have

been caused or hastened by actions or inactions of facility

sta or others.

• Make a report to APS if it takes reports on and investigates

elder abuse occurring in long-term care facilities.

Nursing

Homes &

Assisted

Living

Representative Payees, VA Fiduciaries,

and Other Government Benefit

Money Managers

Federal or state agencies that provide retirement/pension

or other benefits may name a person or entity to receive and

spend money on behalf of a beneficiary who lacks capacity to

manage that money. The person or entity may misuse the au-

thority over the money to financially exploit the older person.

▶ Key Definitions and Facts

• A federal or state agency can name an individual or an entity

to manage money it provides to a beneficiary if the agency

decides that the beneficiary lacks capacity to manage the

money because of impairment. Agencies use dierent names

for these money managers. For example, the Social Security

Administration calls them “representative (rep) payees” and

the Department of Veterans Aairs calls them “VA fiduciaries.”

For simplicity, this section will refer to all types of agency-

appointed money managers as rep payees.

• Rep payees have authority to manage only the money that

the agency provides to a beneficiary.

• Rep payees may be required to file periodic reports with the

government agency on how they managed a beneficiary’s

money from that agency.

• Rep payees have a legal duty to act as a fiduciary.

This means, generally, that payees must act in a totally

trustworthy manner and make decisions in a beneficiary’s

best interest.

▶ Key Definitions and Facts

Represen-

tative

Payees

& VA

Fiduciaries

▶ Relevance to Elder Abuse

• A rep payee can commit financial exploitation by misusing

authority over a beneficiary’s money. For example, rep

payees may:

Ì Fail to spend money on necessities, such as housing,

food, and medical care.

Ì Exceed the authority given (e.g., control other money

without legal authority to do so).

Ì Self-deal (e.g., buy things for the beneficiary that really

only benefit the rep payee, pay his or her own bills with

the beneficiary’s money).

Ì Fail to follow the government agency’s rules about

charging the beneficiary for services.

Ì Mix the beneficiary’s money with the payee’s money.

Ì Keep the beneficiary’s money although no longer

serving as the rep payee (e.g., aer the beneficiary has

been murdered or died of natural causes).

Ì ▶ Actions to Consider

• A rep payee’s actions may violate local, state, or federal laws

relative to:

Ì Elder abuse

Ì Embezzlement

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (e.g., credit card, tax, or

welfare)

Ì Identity the

Ì Larceny

Ì Making false

statements

Ì Neglect

Ì The

▶ Relevance to Elder Abuse

▶ Actions to Consider

Represen-

tative

Payees

& VA

Fiduciaries

• Investigate further if an alleged rep payee cannot or will

not produce proof of authority from the government

agency, if documents do not name the person as the

rep payee, or if documents do not appear to allow the

actions in question. If it is not clear that the person has

been named as rep payee or is authorized to take the

actions in question, contact the government agency or the

prosecutor’s oice for an opinion.

• Determine whether the rep payee has filed reports

required by the agency. If so, review the reports for

evidence.

• If allowed by law, initiate actions to freeze a beneficiary’s

assets or take other steps to stop a rep payee from

dissipating remaining assets.

• Consider whether the rep payee is in a position to victimize

other people.

• If the beneficiary has died, consider whether death may

have been caused or hastened by the rep payee.

• Make a report to the agency providing the benefits so

it can investigate and take action. For example, it may

end the rep payee’s authority or pursue civil or criminal

penalties.

• Make a report to adult protective services.

Represen-

tative

Payees

& VA

Fiduciaries

Trusts

A trust is a legal arrangement in which a person or an

institution agrees to manage an adult’s assets for the

benefit of that adult or someone else named by that adult.

A trust can be used as a tool for financial exploitation.

▶ Key Definitions and Facts

• Just as there are dierent types of trusts, there are dierent

reasons for creating trusts. Some of the most common

reasons include: planning for someone to manage your

assets on your behalf if you lose decision-making capacity,

avoiding the time and expense of probating a will, avoiding

taxes, and planning for someone to manage assets for

minor children or adult children with disabilities.

• An adult must have decision-making capacity to make,

revoke, or change a trust.

• The person who creates the trust is generally known as the

grantor, trustor, or settlor.

• People or institutions (such as banks) that manage trust

assets are known as trustees.

• People or organizations for which assets are managed are

usually referred to as beneficiaries.

• Depending on the type and purpose of a trust, one person

may have more than one role. For example, a grantor also

may be a trustee or a beneficiary.

• For a trust to be eective, ownership of the assets (title)

must be transferred by the grantor to the trust. State laws

▶ Key Definitions and Facts

Trusts

govern whether the trust assets may be held in the name of

the trustee or must be held in the name of the trust.

• Whether the trustee or the trust holds the trust assets,

trustees have a legal duty to act as a fiduciary. This means,

generally, that a trustee must act in a totally trustworthy

manner in the interest of the beneficiary and trust, and must

manage the trust’s assets as instructed by trust documents.

▶ Relevance to Elder Abuse

• Financial exploitation related to trusts can occur if:

Ì A grantor lacking decision-making capacity is persuaded,

coerced, threatened, or tricked into signing trust

documents.

Ì A grantor with decision-making capacity signs trust

documents because of undue influence, duress, fraud, or

misrepresentation.

Ì Someone prepares trust documents that do not reflect

the grantor’s wishes.

Ì Someone forges the grantor’s signature.

Ì A trustee changes or revokes a trust without having

legal authority to do so or in ways that undermine the

grantor’s plans.

Ì A trustee fails to follow the grantor’s instructions for

managing or distributing trust assets (e.g., by exceeding

the powers given by the grantor).

Ì A trustee uses trust assets for his or her own benefit or

the benefit of others against the wishes of the grantor or

the trust document.

• If a trust fails because, for example, it was made under

duress, then either the grantor’s will or state law determines

▶ Relevance to Elder Abuse

Trusts

who inherits those assets. Causing a trust to fail can

undermine the grantor’s plans.

• Problems may become evident before or aer the grantor

dies. There may be multiple victims:

Ì the grantor whose assets may have been stolen or

whose estate plan may have been altered, or

Ì beneficiaries whose assets or inheritance may have

been stolen.

▶ Actions to Consider

• The circumstances surrounding the preparation or signing

of trust documents or distribution of trust assets may

violate local, state, or federal laws relative to:

Ì Conspiracy

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud

Ì Larceny

Ì The

• If the grantor has died, consider whether death may have

been caused or hastened by a trustee, beneficiary, or

someone else who may benefit financially.

• Determine whether state law prevents someone who com-

mitted a crime against the grantor from being a beneficiary.

• Consider whether there are other victims, such as

beneficiaries.

• Consider whether the trustee is in a position (e.g., a caregiver,

trust oicer, or lawyer) to victimize other older people.

• Make a report to adult protective services.

▶ Actions to Consider

Trusts

Reverse Mortgages

A reverse mortgage provides income that may enable

an older person to continue living in their home, but it is

also a complex financial product that may be misused to

financially exploit the homeowner. Loan proceeds, equity,

or the home itself may be lost as a result.

▶ Key Definitions and Facts

• A reverse mortgage is a special type of loan for older

homeowners (aged 62+) who have substantial equity in

their homes but are “cash poor.” Reverse mortgages allow

older homeowners to borrow against the equity in the

home. The loan provides income that may allow the older

person to continue living in their home.

• A reverse mortgage can provide income as a monthly

payment, as a line of credit, or in a lump sum payment.

• Reverse mortgages also may be called home equity

conversion mortgages.

▶ Relevance to Elder Abuse

• Financial exploitation related to reverse mortgages can

occur in several ways, such as:

Ì A homeowner lacking appropriate decision-making

capacity is coerced, persuaded, threatened, or tricked into

signing reverse mortgage documents.

Ì A homeowner with decision-making capacity signs reverse

mortgage documents because of undue influence, duress,

fraud, or misrepresentation.

▶ Key Definitions and Facts

▶ Relevance to Elder Abuse

Reverse

Mortgages

Ì An exploiter steals the homeowner’s identity and obtains

a reverse mortgage.

Ì An agent under a power of attorney misuses authority

to get a reverse mortgage that the homeowner does not

want.

Ì An agent under a power of attorney or someone else gets

a reverse mortgage that the homeowner wants, but then

steals the proceeds from the loan.

Ì An exploiter draws an unsuspecting homeowner into

a property-flipping scheme that overcharges the

homeowner and siphons the proceeds from the loan.

Ì An exploiter misleads the homeowner about the need to

buy other financial products, such as annuities, to get a

reverse mortgage.

Ì Exploiters inflate the appraisal to maximize the loan

proceeds they intend to steal from the homeowner.

Ì Exploiters use unfair and deceptive practices, such as

false advertising about the costs and risks of reverse

mortgages.

• Problems may become evident before or aer the

homeowner dies. There may be multiple victims:

Ì the homeowner whose property deed, equity, or loan

proceeds may have been stolen,

Ì other people living in the home who may have to move

out,

Ì the bank or other lender that provided the reverse

mortgage, or

Ì the government that insured the mortgage.

Reverse

Mortgages

▶ Actions to Consider

• The circumstances surrounding the preparation or

signing of reverse mortgage documents or distribution

of loan proceeds may violate local, state, or federal

laws relative to:

Ì Conspiracy

Ì Elder abuse

Ì Embezzlement

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud (mortgage

lending or bank fraud)

Ì Identity the

Ì Larceny

Ì Money laundering

Ì The

• Consider whether there are other victims, such as other

people living in the home.

• Consider whether the alleged perpetrator is in a

position (e.g., a caregiver, guardian/conservator, or

lawyer) to victimize other older people.

• Make a referral to the state attorney general or the

U.S. attorney, bank or other business regulators, or

consumer protection agencies.

• Make a report to adult protective services.

▶ Actions to Consider

Reverse

Mortgages

Wills

A will is a legal document that expresses a person’s wishes

for the distribution of money or property aer death. Wills

are not eective until the person has died and the will has

been probated. Financial exploitation related to wills can

occur in a variety of ways.

▶ Key Definitions and Facts

• A will is a legal document used by someone (the testator)

to indicate who should receive the testator’s money or

property (the estate) aer he or she dies.

• A testator must have testamentary capacity to make,

change, or revoke a will. This is a lower standard than

decision-making capacity.

• A testator who has testamentary capacity can change a

will at any time before death. This is done by making a

new will or by adding a codicil, which is a new section that

changes an existing will.

• Wills do not become eective until the testator has died

and the estate has been probated. Probate is the process

in which a court decides if a will is valid, gives creditors the

opportunity to make claims, and orders distribution of the

estate. People who expect to inherit under a will cannot

take a testator’s assets in anticipation of that inheritance.

• The person responsible for probating the will and

distributing the estate as ordered by the court is generally

known as the executor.

▶ Key Definitions and Facts

Wills

• The people or organizations that inherit the estate are

generally known as heirs.

• Executors have a legal duty to act as a fiduciary. This

means, generally, that the executor must act in a totally

trustworthy manner and distribute the estate as ordered by

the court.

▶ Relevance to Elder Abuse

• A will can be used as a tool for financial exploitation.

Problems may come to light before or aer the testator dies.

Examples of exploitation related to a will include:

Ì Someone takes money or property before the testator

dies and justifies it by saying “I was going to inherit it

anyway.”

Ì A person lacking testamentary capacity is coerced,

persuaded, threatened, or tricked into signing a will.

Ì A person with testamentary capacity signs a will because

of undue influence, duress, fraud, or misrepresentation.

Ì Someone prepares a will that does not reflect the

testator’s wishes.

Ì The testator’s signature is forged.

Ì A guardian/conservator, agent under a power of attorney,

or other fiduciary changes or revokes a will without

having legal authority to do so or in ways that undermine

the testator’s estate plan.

Ì An executor fails to follow the court’s order for

distributing the estate.

▶ Relevance to Elder Abuse

Wills

▶ Actions to Consider

• The circumstances surrounding the preparation or

signing of a will or the distribution of the estate may

constitute a local, state, or federal crime relative to:

Ì Conspiracy

Ì Elder abuse

Ì False instrument

Ì Financial exploitation

Ì Forgery

Ì Fraud

Ì Identity the

Ì Larceny

Ì The

• If the testator has died, consider whether death may

have been caused or hastened by an heir, a disinherited

person, or someone else who may benefit financially.

• Consider whether there were other victims, such as the

testator’s intended heirs.

• Determine whether state law prevents someone who

committed a crime against the testator from inheriting.

• Consider whether the alleged perpetrator is in a position

(e.g., a caregiver, guardian/conservator, or lawyer) to

victimize other older people.

• Make a report to adult protective services.

▶ Actions to Consider

Wills

Resources

Websites of Federal Agencies

• U.S. Department of Justice websites

Ì Elder Justice

www.justice.gov/elderjustice

Ì Bureau of Justice Assistance

www.bja.gov

Ì Civil Division

www.justice.gov/civil

Ì Oice of Community Oriented Policing Services

www.cops.usdoj.gov

Ì Oice for Victims of Crime

www.ojp.gov/ovc

Ì National Institute of Justice

www.nij.gov

Ì Oice on Violence Against Women

www.justice.gov/ovw

• National Center on Elder Abuse

A national resource center funded by the

U.S. Department of Health and Human Services

Administration on Aging

www.ncea.aoa.gov

Websites of Federal Agencies

Resources

Websites of National Organizations

• American Bar Association Commission on Law and Aging

www.americanbar.org/aging

• International Association of Chiefs of Police

www.theiacp.org

• National Adult Protective Services Association

www.napsa-now.org

• National Association of Triads

www.nationaltriad.org

• National Center for State Courts Center for Elders

and the Courts

www.eldersandcourts.org

• National Clearinghouse on Abuse in Later Life

www.ncall.us

• National Committee for the Prevention of Elder Abuse

www.preventelderabuse.org

• National Consumer Voice for Quality Long-Term Care

www.theconsumervoice.org

• National District Attorneys Association

www.ndaa.org

Websites of National Organizations

Resources

Commission on

Law and Aging

Pocket Guide

Legal Issues Related to Elder

Abuse: A Pocket Guide for Law

Enforcement provides brief

explanations of:

• legal concepts, documents,

and tools that may be misused

to commit elder abuse or used

properly to remedy it, and

• issues and actions that justice

system professionals should

consider if they suspect elder

abuse has occurred.

Desk Guide

Legal Issues Related to Elder

Abuse: A Desk Guide for Law

Enforcement is also available. It

provides more information about

each of the topics covered in this

Pocket Guide, as well as:

• tips for communicating with

older individuals,

• the dierences between civil and

criminal courts,

• entities that may be involved

with elder abuse victims or

perpetrators, and

• additional resources.

Legal Issues Related to Elder Abuse

Information about ordering more copies of this Pocket Guide and about

the more detailed Desk Guide can be found online at:

www.ambar.org/ElderAbuseGuides.

ABA Product Code 4280101 • ISBN 978-1-62722-935-7