Elder Financial Abuse
What is Elder Financial Abuse?
Under California law, financial abuse of an elder can be both criminal and civil. In California, elders are defined as persons 65 years and older.
Criminal elder abuse occurs where any person who violates any provision of law proscribing criminal theft, embezzlement, forgery, or fraud of an elder and also knows or reasonably should know that the victim is an elder. It is punishable by a fine of two thousand five hundred dollars ($2,500) and imprisonment in a county jail for one year, or in the state prison for two, three, or four years, when the property is of a value exceeding nine hundred fifty dollars ($950); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail for one year, when the property taken is of a value not exceeding nine hundred fifty dollars ($950). (California Penal Code Section 368)
Civil elder financial abuse is when a person or entity does any of the following:
- Takes real or personal property of an elder for a wrongful use or with intent to defraud, or both.
- Assists in the taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use or with intent to defraud, or both.
- Takes real or personal property of an by undue influence. Undue influence means excessive persuasion that result in inequity. (Welfare & Institutions Code Section 15610.30)
How to Recognize Financial Abuse
1. Transaction Abuse Indicators
- Investments in time shares, real property, annuities or financial products
- Large loans against home equity to finance investments
- Inappropriate banking activity such as unusually large withdrawals or withdrawals from automated banking machines
- Signatures on checks that do not resemble the elder’s signature
- Legal documents signed when the elder is physically incapable of writing
- Checks written out to “cash” being negotiated by caretakers
- Checks signed by the senior but filled out by someone else
- A surge of activity in accounts which have been static for years
- Expensive gifts made by the elder
- Checks or credit card transactions made out to direct mail or telemarketing promotions
- Contributions going to newly formed religious or non-profit causes
2. Possible Legal Document Abuse Indicators
- Power of attorney documents signed by the elder when the elder lacks mental capacity
- Will being made when the elder is not mentally competent
- Elder taking his or her name off of property titles
- The elder adding the name of a caretaker onto real property or money accounts in exchange for commitments of continued care, and or affection
3. Life-Style Change Indicators
- Lack of amenities, such as personal grooming items or appropriate clothing, when the elder can well afford it
- Under-deployment of the elder’s existing resources that could be spent on housing, personal care, housing and maintenance
- Missing cash, jewelry and personal belongings
- Decline in personal hygiene
4. Personal Relationship Abuse Indicators
- Family member interest in “conserving” the money that is being spent for the care of the elder’s care
- Reluctance or refusal by “responsible party” to spend money on the elder’s care
- New acquaintances or long-lost relatives spending time with the elder and expressing affection for the elder
- A caretaker with an inappropriate level of interest in the elder’s financial matter
Warnings to Elders about How to Avoid Financial Abuse
When it comes to your finances, deal only with people you have known a long time and with companies or organizations with proven track records. Get everything in writing. Never accept a verbal promise or assurance if money or property is involved. Rarely will you benefit from mistakes or misunderstandings. Don’t sign anything without carefully reading it and never feel pressured to sign before you are absolutely ready to live with your decision. Take your time! Remember, it took a lifetime of work and sacrifice to build up your estate and you can lose it all with one stroke of a pen. (Refer to CANHR’s Fact Sheet - Preventing Elder Financial Abuse.)
What to Do About Known or Suspected Elder Financial Abuse?
Any concerned person, and all mandated reporters.
Who are Mandated Reporters?
Any person who has responsibility for the care or custody of an elder, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff or a public or private facility that provides care or services for elders; any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a country adult protective services agency or a local law enforcement agency. Officers and employees of financial institutions are also mandated reporters.
What is Reported?
Mandated reporters MUST report actual or suspected physical abuse, abandonment, isolation, financial abuse, or neglect which is observed, evident, or described.
When to Report?
Immediately or as soon as possible by telephone, followed by a written report within two (2) working days.
Form SOC 341 must be completed and signed by the mandated reporter.
Failure to Report
Failure to report, impeding or inhibiting a report of, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect of an elder is a misdemeanor, punishable by six months in the county jail and a fine of one thousand dollars ($1,000).
Any mandated reporter who willfully fails to report physical abuse, abandonment, abduction, isolation, financial abuse, or neglect of an elder where that abuse results in death or great bodily injury, shall be punished by not more than one year in a county jail and a fine of five thousand dollars ($5,000).
Banks and financial institutions are mandated reporters under Welfare and institution Code §15630.1. Failure to report can lead to a $1,000 fine. Intentional failure to report can result in a $5,000 fine. There is no imprisonment or private right of actions against institution that fail to report financial abuse.
Where to Report
Contact the county office of the District Attorney - check the California District Attorney’s Association for current addresses and phone numbers at 916-443-2017 or http://www.cdaa.org.
File a complaint with the State Bar of California if you believe your attorney acted improperly, and file complaints with state (http://www.dca.ca.gov/consumer/complaints.shtml) and local consumer protection agencies.
Insurance Agent Complaints
Contact the State Insurance Commissioner’s Office at 1-800-927-4347 or http://www.insurance.ca.gov. If an attorney sold the annuity, also file a complaint with the State Bar Association at 1-800-843-9053 or http://www.calbar.ca.gov.
Mortgage Lenders & Brokers Complaints
If you believe that a real estate professional has committed fraud having to do with your reverse mortgage, file a complaint with the California Department of Real Estate at: http://www.dre.ca.gov/Consumers/FileComplaint.html.
Also file a complaint with the Federal Trade Commission online or by phone, toll–free, at 1–877–FTC–HELP.
Adult Protective Services (APS) in your county by referring to California Department of Social Services Web site at http://www.cdss.ca.gov/agedblinddisabled/PG1298.htm.
Page Last Modified: July 25, 2016