Financial Abuse Of Elders: The Crime Of The 21st Century (Part 5)

Reporting of Elder Financial Abuse

The National Center on Elder Abuse, under the auspices of the Administration on Aging, in summarizing a series of research studies on the incidence and prevalence of elder abuse and neglect (of all types), concluded that while data from state Adult Protective Services agencies shows an increase in the reporting of elder abuse, an overwhelming number of cases go undetected, unreported, and untreated each year. One such study estimated that only one of every 14 cases of elder abuse ever comes to the attention of the authorities. Another study found that for every case of elder abuse referred to social service, law enforcement, or legal authorities, 24 cases were not so referred.

Why is elder financial abuse so significantly under-reported? The most cited reason is that the victims themselves refuse to report the abuse to relevant authorities. The 2009 MetLife Study, Broken Trust: Elders, Family and Finances, suggested some of the following reasons as the basis for an elder’s refusal to report her victimization:

• The elder does not want her abusing family member to go to jail or to face public embarrassment.
• The elder does not want government interference in her personal life.
• The elder feels partially responsible for what has happened.
• The elder believes that the abuse is simply part of doing business or taking risks.
• The elder feels that admitting vulnerability will result in her being placed in a nursing home or other facility.
• The elder fears that the abuser will harm her even more if the abuse is reported.
• The elder fears that prosecuting the abuse will be prohibitively expensive.
• The elder may not recall the abuse because of dementia or other impairments.

Another factor underlying the significant under-reporting of elder financial abuse includes the reluctance of third parties to get involved for some of the following reasons:

• They do not know if they are “mandatory reporters” under their state laws.
• They do not want to compromise professional relationships.
• They wish to avoid adverse publicity to themselves or their organizations.
• They do not want to incriminate fellow professionals or employees.
• They want to avoid involvement in a criminal investigation or lawsuit.
• They are untrained on the distinction between “normal aging” and elder abuse.

“Mandatory reporters” of elder financial abuse can vary significantly from state to state. For example, Georgia law provides that the following persons having reasonable cause to believe that a disabled adult or elder person has been the victim of abuse, other than by accidental means, or has been neglected or exploited, are mandatory reporters of such suspected abuse, neglect or exploitation: any person required to report child abuse; physical therapists; occupational therapists; day care personnel; coroners; medical examiners; emergency medical services personnel; certified emergency medical technicians, cardiac technicians, paramedics, and first responders; employees of a public or private agency engaged in professional health related services to elder persons or disabled adults; clergy members (outside of the confessional); and any employee of a financial institution having reasonable cause to believe that a disabled adult or elder person has been exploited (for assets not being held or managed in a fiduciary capacity).

Only ten states and the District of Columbia specifically designate the employees of financial institutions as mandatory reporters of elder financial abuse. Numerous other states recommend and encourage, but do not require, the employees of financial institutions to report suspected elder financial abuse. As of 2013, there are no federal requirements that banks or other financial institutions must train employees to recognize or report elder financial abuse, even though they are well positioned to identify such abuse.

Penalties for the failure of mandatory reporters to report suspected elder financial abuse range from no penalty at all, to monetary fines, to jail time. In general, anyone who makes a report of suspected elder abuse, who testifies in any judicial proceeding arising from the report, who provides protective services, or who participates in a required investigation, is immune from any civil or criminal liability on account of such report, testimony or participation, unless such person acted in bad faith, with a malicious purpose, or was a party to the abuse.

Part 6 of this series will discuss Adult Protective Services agencies as the “first responder” mechanism for investigating reports of elder financial abuse outside of a long-term care setting, while Part 7 will deal with Long-Term Care Ombudsman programs investigating complaints in nursing homes or other long-term care settings.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.