Vulnerable Adult Maltreatment. Jennifer J. Hasbargen Assistant Anoka County Attorney Certified Fraud Examiners November 9, 2011

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1 Vulnerable Adult Maltreatment Jennifer J. Hasbargen Assistant Anoka County Attorney Certified Fraud Examiners November 9, 2011

2 Medicaid Fraud Control Unit Jurisdiction over Medicaid fraud. Referral for abuse, neglect and financial exploitation of vulnerable adults with a Medicaid hook. Referrals from law enforcement/county attorneys/ social services. To investigate and prosecute must have permission from County/City Attorneys.

3 In The News Why? Increasing elderly population Economic times Who has the money? More awareness of vulnerable adult / elder maltreatment issues

4 What is Financial Exploitation of a Vulnerable Adult? Understand the difference between a Vulnerable Adult and the Elderly Understand what constitutes Financial Exploitation and how abuse and neglect relate Understand and recognize fiduciary relationships

5 It Happens A Lot: Case Examples State v. Rott State v. Campbell State v. Danielson State v. Torres

6 Who is it happening to? First, who is a vulnerable adult? Anyone receiving services at or from a facility, home care provider, or personal care provider organization. Examples nursing homes, hospitals, PCA services, nursing services Anyone who possess a physical or mental infirmity that impairs the individual s ability to provide adequately for individual s own care without assistance and because of the dysfunction or infirmity has an impaired ability to protect the individual. Does age play a factor in this? Yes and no.

7 Elderly v. Vulnerable Adult Elderly = age only Vulnerable Adult may not include elderly individual Minnesota most crimes relate to vulnerable adult not elderly

8 Where is it happening? Usually a family member Use of power of attorney (POA) and/or joint account to access funds Usually VA has dementia or Alzheimer's

9 What is it? Financial Exploitation of a Vulnerable Adult: Minn. Stat In breach of a fiduciary obligation (including responsible party) intentionally; fails to use resources of VA for his/her basic needs; or uses, manages, or takes either temporarily or permanently real or personal property or other financial resources of VA (whether in VA s name or 3 rd party) for the benefit of someone other than VA; or deprives either temporarily or permanently a VA of the VA s real or personal property or other financial resources for benefit of someone other than VA

10 Fiduciary Relationship What constitutes a fiduciary relationship? Power of Attorney = a fiduciary relationship Traditional Fiduciary Joint account MAY = a fiduciary relationship Situational Fiduciary

11 What is a Power of Attorney Found in Minn. Ch. 523 POA is a document by which a person (principal) grants authority to another (agent/attorney-in-fact) to perform specified acts on his/her (principal s) behalf. Can survive incapacitation Does NOT survive death Does NOT have to be drafted by attorney

12 Power of Attorney (Cont d) Power to steal Purchase form off internet MN Court web sight free Who is the client? Competency of VA to sign document Self Gifting Allowing transfer of assets to Attorney-In-Fact No oversight No accounting required Name more than one AIF Do Not Check all the above

13 Joint Accounts Poor man s POA [A] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent. Minn. Stat (a). What does this mean A joint account holder does not, without evidence of a contrary intent, own funds contributed by another party to the account he/she exercises dominion over the funds only with the consent of the contributing party. Enright v. Lehmann, 735 N.W.2d 326, 335 (Minn. 2007)

14 Fiduciary Relationships in Joint Accounts Campbell factors: The legal, familial, or personal relationship between the parties; The capacity or sophistication of the parties; Who contributed the funds to the joint accounts and in what ratio; and The parties understanding of their respective roles and responsibilities within the relationship; This is not an exhaustive list. State v. Campbell, 756 N.W.2d 263, 274 (Minn. Ct. App. 2008), review denied (Minn., Dec. 23, 2008).

15 Breach of a Fiduciary Obligation Self-dealing by a fiduciary is well recognized in the law as a breach of a fiduciary obligation/duty. See 36A C.J.S. Fiduciary at (1961). Campbell is a case about misappropriating funds of a vulnerable adult, i.e., self-dealing.

16 Use of VA s Funds for Basic Needs Any use of VA s funds not for their basic needs is exploitation. It does not matter if all VA s needs are actually met.

17 But they wanted me to have it. Gifting When is it a proper gift? Consent Can a VA give consent?

18 Warning Signs/Red Flags to Watch For Sudden or unexplained changes in bank/investment accounts additional/new names on accounts Sudden or rapid unexplained declining balance Spenddown not being paid New spending habits (bills being paid late) Frequent or large withdrawals (assets being liquidated) Checks written to cash

19 Warning Signs/Red Flags to Watch For (Cont d) Sudden or unexplained changes in bank/investment accounts. (Cont d) Signature Mis-matches Frequent or unexplainable ATM transactions Unexplained expenses (car payments when no car, loan for car, reverse mortgage) Bounced checks Victim/your client has no knowledge or control of finances

20 Warning Signs/Red Flags to Watch For (Cont d) Sudden or unexplained changes in an estate plan. Changes from historical arrangement to new arrangement Changes that benefit non-family members Changes initiated by someone other than your client Changes made by attorney other than one historically used

21 Warning Signs/Red Flags to Watch For (Cont d) Sudden or unexpected transfers of assets large transfers to family members, caregivers or others Transfers to persons that were previously uninvolved Transfers to person with known problems, such as chemical dependency or gambling Missing personal property (antiques, jewelry)

22 Impact Cost Nursing home shopping Eviction for non-payment Likelihood of recuperating costs Public funds expended Impact on the vulnerable adult Emotional Physical

23 Additional Concerns When Financial Exploitation results in the abuse and neglect of a VA Nursing home shopping Taking VA home to provide care (and failing to do so) State v. Torres Health care POA State v. Danielson Denying care in order to preserve assets State v. Danielson Use of force / undue influence to get $ State v. Spires

24 What do you do when you think it is happening? Ask Questions and communicate Be aware of red flags Find out why from VA and their family and representatives Ask for proof of unexpected inability to pay Discharge/Eviction/Lack of Food/Personal Needs Important documentation Nursing home account history and/or VA s trust/bank account history Proof of communications (written and verbal) with VA (and their family and representatives) and the suspect regarding non-payment/lack of funds Admission/Residency agreement (Is suspect listed as the financially responsible party?) Other information assets (type of asset and location of asset) family members Power of Attorney and similar documents

25 What can be done to combat it? Recognize Know what it is Know the red flags Record Conversations Vulnerable adult Alleged perpetrator All forms of communication (bills / letters) Report Financial exploitation IS maltreatment Mandated to report exploitation Manual - Identifying and Intervening in Financial Exploitation

26 Where do we go from here? State v. Campbell New legislation Statute of limitations-5 yrs if over $35,000 If over $35,000 higher criminal penalty Speedy trial Admin. Subp. for bank records Clarified language in VA statute not a defense if known or should have known the VA was not competent Private right of action

27 Thank you! Questions? Jennifer Hasbargen Assistant Anoka County Attorney