Prosecuting Elder Financial Exploitation: A Primer

Transcription

1 Prosecuting Elder Financial Exploitation: A Primer Elizabeth Loewy Chief Elder Abuse Unit Special Victims/Special Prosecutions Bureaus New York County District Attorney s Office 80 Centre Street I. Elder Financial Abuse: Defined, Common Charges, Reporting A. Definition: The National Center on Elder Abuse defines Elder Financial or Material Exploitation as 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. 1. Elder financial exploitation is the most common form of abuse. See: NYS Under the Radar: New York State Elder Abuse Prevalence Study (2011). According to the Study, Id., only one in 44 cases of elder financial abuse is reported to authorities. The offenses may overlap with one or more of the following categories: domestic violence, sex crimes, identity theft, neglect, and more. B. Criminal offenses commonly charged on elder financial abuse cases include felonies, misdemeanors and lower level offenses. Depending on the state, there may be a specific crime that applies to victims who have reached a certain advanced 1

2 age, and/or impaired victims, or both. Financial Exploitation/Domestic Violence crimes that target elder and/or impaired victims may qualify as Hate Crimes in some states. Common charges on elder financial abuse cases include: Larceny Conspiracy (i.e.to steal from an estate) Forgery Scheme to Defraud Identity Theft Offering or Filing a False Instrument Insurance Fraud Criminal Contempt Assault C. Reporting: In Indiana, an individual who believes or has reason to believe that another individual is an endangered adult shall make a report. See Ind. Code Ann (a) (West 2013). An Endangered Adult is one who is (1) at least 18 years of age; (2) incapable by reason of mental illness, mental retardation, dementia, habitual drunkenness, who believes or has reason to believe that another individual is an endangered adult. See Ind. Code Ann (a). II. Anatomy of an Elder Financial Abuse Prosecution A. Who are the victims? 1. Elder abuse victims come from all socio-demographic groups. The 2

3 National Center on Elder Abuse statistics indicate that female elders are abused at a higher rate than males, and that that the older one is, the more likely one is to be abused. A study in New York City identified the majority of victims as Caucasian females living with another adult; in most cases it was their abuser. See Journal of Elder Abuse and Neglect, Vol.11(4) 1999, p The victim s mental status is crucial in determining whether and how to proceed on an elder financial abuse case. a. The victim may have a substance abuse dependency (drugs or alcohol), mental illness and/or cognitive issues, such as dementia. B. Who are the abusers? 1. In the only national study that attempted to define the scope of elder abuse, the vast majority of abusers were family members (approximately 90%), most often adult children, spouses, partners, and others. See National Center on Elder Abuse, National Elder Abuse Incidence Study: Final report (1998) Washington DC. New York County D.A. s Office statistics indicate that exploiters of the elderly include their family members, home attendants, healthcare professionals, fiduciaries (including accountants, brokers, attorneys, agents, guardians) and strangers (street crime, con and scam artists). a. The abuser may have mental health issues, but this would be less likely to determine how the prosecution proceeds, unless it is determined that the impairment affected the defendant s intent when 3

4 he/she committed the crime. If this is the case, the theory of the case may be affected (i.e. reckless as opposed to intentional charge). C. Proving an exploitation case when the elderly victim is reluctant to cooperate or is otherwise unavailable. 1. Domestic violence cases involving older couples are notoriously difficult to prosecute. Crimes involving parents and grandparents who are financially exploited by their children and other relatives often present with the most reluctant witnesses of all. 2. Law enforcement attempts, whenever possible, to build a case" without relying on the reluctant or impaired victim to testify. a. The prosecution may attempt to prove its case at trial without requesting or subpoenaing the elderly victim to testify. There are certain offenses, like Criminal Contempt (the violation of an order of protection), that the prosecution may be able to prove beyond a reasonable doubt through the introduction of evidence other than the victim's statement (i.e.: the order of protection and a police officer's testimony that he witnessed the defendant at the victim's residence in violation of the order). b. Hearsay evidence: Courts are reluctant to allow the admission of hearsay statements at trial, as they are inherently unreliable and the declarant cannot be challenged by the defense during crossexamination. The primary challenge for a prosecutor in his or her efforts to introduce hearsay statements of an elderly witness who is 4

5 unavailable (death, incapacity) at the time of trial is to establish that the statement constitutes one of the exceptions to the hearsay rule. The case of Crawford v. Washington, 541 U.S. 36 (2004), makes this more difficult. In Crawford, the Supreme Court has articulated (or re-defined) what will be considered to be testimonial hearsay evidence, and therefore deemed to be inadmissible despite the prosecutor s potential argument that the declarant who made the statement is unavailable and the statement is reliable. Id. c. Evidence that may be crucial in preparing for a case in which law enforcement will not call the victim to testify includes: 1. the defendant's admissions to civilian witnesses (bank, family member, neighbor, A.P.S. worker, victim s doctor) or to the police at the time of crime/arrest. If permitted in your state, consider tape recording conversations (pre-arrest) between the defendant and a cooperative witness (CONTROLLED CALL), in which the defendant is confronted with the abuse and exploitation; obtain tapes from elder s message machine; 2. medical evidence pertaining to the nature of the victim's injuries and status, including cognitive testing such as MMSE exams, prescriptions and Rx history; 5

6 3. photographs or drawings of the home, crime scene (if different) and/or the victim's injuries remember photos of refrigerator, cabinets, medications, bedding; 4. witnesses observations of the victim and/or defendant's or exploitive conduct; 5. financial records which establish the unauthorized transfer of the victim's funds including signature cards, canceled checks, monthly statements, mortgage applications, balance books, deposit and withdrawal slips, tax returns especially gift tax returns, deeds, trusts, power of attorney documents, applications, contracts, receipts, bills and ATM film, when it exists; 6. legal documents such as wills, health care proxies, contracts, deeds; 7. forensic evidence, such as laboratory examinations, handwriting analysis and voice analysis; and 8. physical evidence obtained from the crime scene or from the defendant. d. If the prosecution cannot prove the elements of the crimes charged "beyond a reasonable doubt" without calling the reluctant victim to testify, a subpoena to compel the witness' attendance may be issued by the prosecution. 6

7 D. Proving the financial case when the victim is mentally impaired. 1. A witness must have testimonial capacity (competence) in order to testify at trial. 2. An elderly witness may have testimonial capacity, but otherwise lack capacity in that they have little or no memory of the matter in question due to dementia, such as Alzheimer s Disease, or some other age-related condition. 3. Law Enforcement will need to assess whether the victim could have consented to the transfer of funds or property at issue. Was the authority to transfer funds given by an owner of property at a time that he/she had capacity? Were false pretenses or false promises used to induce the victim to transfer property? Cases that are instructive on the issue of an owner's capacity to consent are helpful. a. In New York, People v. Camiola, 225 A.D.2d 380 (1st Dep't 1996), lv denied 5/14/96, is a case in which an accountant for an elderly, senile woman maintained a pattern of thefts from her over a two year period. The victim passed away by the time of the trial. The defense contended that the victim had consented to the transfers of funds in question, and that they were gifts she had knowingly given to the defendant. The Court held that the jury, in evaluating the definition of larceny, was properly instructed that it should consider the victim's capacity to form consent in order to determine whether there had been a trespassory taking of her property, a form 7

8 of larceny actionable pursuant to section 155 of the Penal Law. Id. at 380. b. In People v. Anthony Marshall and Francis Morrissey, Ind. 6044/2007; 2013 NY Slip Op [106 AD3d 1] (2013), the Court held that the trial record amply supported the jury's determination that defendants were guilty of larcenous conduct and a scheme to defraud Brooke Astor, defendant Marshall s mother, by fraudulently changing her will at a time when they knew her mental condition precluded her from having the capacity to agree to any such changes. Marshall was his mother s agent pursuant to a Power of Attorney during the period when he induced her to change her estate plan and stole from her. c. Larceny actions involving joint bank accounts may prove to be unprovable, as the account holders are joint owners of the property. E. Financial exploitation and the power of attorney ( POA ). 1. A power of attorney is a legal document that allows another individual to act on the senior s behalf. Powers of attorney can be helpful to older people and others who wish to select a trusted agent or attorney in fact to conduct business for them. There is relatively easy access to power of attorney forms. They are sold online, at local stationery stores, and many banks routinely distribute their institutional POA documents to individuals who plan to become agents for account holders. Virtually anyone has access to 8

9 these forms. The POA must be executed when the principal (senior) has capacity and is able to understand the document. 2. Durable powers of attorney are a significant vehicle for exploitation of elderly victims. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. If there is reason to believe that an elder s agent/attorney-in-fact is suspected of exploiting the principal, the POA should be reviewed to determine whether the agent is authorized to be paid, and/or whether authorities such as gift-giving are permitted. Note: An agent s authority under a power of attorney is void upon the death of the elder. III. Prosecutors must be mindful of Brady v. Maryland, 373 U.S. 83 (1963), on elder financial abuse cases A. Records that contain information favorable to the defendant (i.e. if there is a reasonable possibility that the information would affect the outcome of the trial) this evidence must be turned over to the defense. This includes statements of witnesses that conflict with the prosecution witnesses on material issues, and evidence that could allow the defense to impeach prosecution witnesses. Examples may include statements of witnesses relating to the older victim s capacity at the time of the transfer at issue, whether or not the victims signed a check, will, or contract as well as results of handwriting analysis that are inconclusive. New York County District Attorney,