How to spot, investigate, and prosecute cases of elder abuse with underlying financial crimes
Elder abuse1 has not gotten a lot of attention in the law enforcement and prosecution arenas up to this point. Unfortunately, both groups will encounter such crimes more and more frequently as our population ages. Baby Boomers are entering the elderly category in droves while many of their parents are still alive.2 In the year 2000, the elderly consisted of 13 percent of the population; by 2030, those over 65 will be an estimated 20 percent of the population. To put this startlingly into context, that means that by 2030 there will be more Americans over the age of 65 than under the age of 18.3
It is also important to note that 70 percent of personal wealth in this country is held by senior citizens.4 This wealth includes everything from homes and stocks, to Social Security benefits and pensions. Elder Texans have lots of financial resources, whether large or small. These resources, combined with their weakening physical, mental, and emotional conditions, make elderly people easy targets for a variety of abuses. Elder abuse crimes—financial and physical—affect all racial, social, economic, and geographic populations. The focus of this article will be the rise of physical abuse cases related to financial crime.
In Dallas, we have seen firsthand the devastation that financial exploitation and physical abuse can have on elderly victims. Since 2007, a designated prosecutor has handled such cases, and in 2014, our office became a part of the Elder Financial Safety Center (EFSC), a public safety project made possible by the W.W. Caruth, Jr. Foundation at the Communities Foundation of Texas.5 The EFSC is a collaboration between the DA’s Office, the Dallas County Probate Courts, and the Senior Source, which is a local non-profit. The EFSC addresses all aspects of the financial safety of older adults through prevention, protection, and prosecution. Through the funding of this collaboration, the Dallas County DA’s Office created an Elder Abuse Unit to focus exclusively on cases involving financial exploitation of the elderly.
When Criminal District Attorney Susan Hawk took office in January 2015, she added another prosecutor to our unit to handle cases involving physical abuse and neglect. By July 2015, our newly expanded unit was up and running, handling all theft, fraud, and exploitation cases as well as injury to elderly and disabled persons. The unit does not handle all general criminal activity against elderly individuals; rather, we focus on crimes where the perpetrator occupied and abused a position of trust.
Even in such a short time period, we have been able to identify a new trend: physical abuse of elders rooted in financial motivations. Our caseload has shown us that where an elder has been physically abused, it is likely that the same abuser has also financially exploited him. The purpose of this article is to illustrate how physical and financial crimes are co-occurring and to discuss the strategies we use to investigate and prosecute them. A financial motive might be as obvious as the takeover of a bank account, or it might be more subtle, like a free place to sleep. Regardless, such motivations exist, and developing them can dramatically strengthen the State’s case against a thief and abuser.
Case study: Minnie
Minnie’s story illustrates co-occurring physical and financial abuse crimes. This case came to us after the Dallas Police Department (DPD) filed an Injury to an Elderly Person6 charge involving our victim, Minnie. At the time of this offense, Minnie was 86. She had been badly beaten by her granddaughter, Michele, who was 34. The defense attorney set the case for trial almost immediately, claiming there was no way that the State could prove its case. He rattled off all of the typical reasons we hear: The victim was bruised because she had thin skin, she might not be able to recall what happened, and she might not be physically able to testify. During preparation for trial, however, we learned that Minnie’s physical injuries were only a portion of the abuse she suffered. Combined investigative efforts with Adult Protective Services (APS), local police, and our unit at the DA’s office helped prove the case and bring additional charges.
When we met Minnie, she was widowed and living in the home she and her late husband bought years before. She worked hard all of her life in the dry cleaning industry and retired at age 65. Despite being on a fixed income, Minnie was on top of all of her bills. She was also a social lady and regularly attended her neighborhood church where she had been a member since 1974. In the recent past, Minnie’s church recommended a home health-care company, which she hired to help her out a few times a week. Things had been going well for Minnie, at least until a year earlier, when her granddaughter Michele left her troubled past in another state and moved in with Minnie to “help out.”
Friends from Minnie’s church began to notice changes shortly after Michele arrived. Minnie stopped coming to church, and the home health-care workers were fired. Soon Michele began to turn away neighbors and friends who came to check on Minnie. At some point, APS was called. Michele took the same approach with the APS caseworker; at first she pretended not to be home, then refused to answer the door. Luckily for Minnie, the APS caseworker was vigilant. On the very day Michele assaulted Minnie (the assault underlying our later charge of Injury to an Elderly Individual), Michele refused to allow APS into the home. But the caseworker had a gut feeling that told her not to leave. Instead she called 911 and initiated a welfare check. Police and EMS responded and found a horrible scene. Minnie was filthy and covered in bruises from Michele’s hits, punches, and slaps. Minnie was transported to the hospital, where doctors determined she had a broken tibia (leg bone). Despite her age and declining health, she had tried to defend herself, as evidenced by the bruises on her palms. Her treating physicians found she was of sound mind, and Minnie gave a vivid account of how Michele beat her and pushed her from her chair, breaking her leg. Minnie’s injuries were consistent with her version of events.
We met with the APS caseworker soon after charges were filed and learned that she had seen some newly executed documents on the table in Minnie’s home after police entered. The worker had specifically seen a power of attorney document naming Michele as POA and a will leaving Minnie’s home to Michele; both were dated within the last month.
The new power of attorney and will alerted our unit to the possibility of bigger issues inside Minnie’s home. Our investigator subpoenaed bank records and credit card statements, which revealed a drastic change in Minnie’s accounts before and after Michele came on the scene. For years, Minnie paid everything by check, but a debit card was issued after Michele moved in. Though Minnie had always paid her bills on time, utilities and essential bills went unpaid after Michele took over—the water at Minnie’s home had even been turned off for two weeks prior to Michele’s arrest. Minnie reported she had been walking to church to fill up milk jugs so she would have water to bathe. She also told us that she was using the bathroom outside.
Minnie knew Michele was using her Social Security check for booze and drugs, but she was afraid to tell anyone for fear of further physical abuse. Minnie was also afraid Michele would make good on her threat to send her to a nursing home—a reality that distressed Minnie greatly considering how independent she had been. Instead of paying bills, Michele used Minnie’s monthly Social Security income for herself. Michele had the money routed to a debit card that she used for expenditures in and around known drug locations. These bank records led us to bring two more charges: Exploitation of an Elderly Person7 and Theft of $1,500–$20,000.8 While Michele did not steal a large amount of money, it was all Minnie had—and we could prove it. Minnie was eventually discharged from the hospital into a skilled nursing facility. She told us she never wanted to go back to that little house of hers. Even though it was all she had ever owned, she was worried about Michele’s seedy friends returning and placing her in danger. Michele’s greed financially devastated Minnie, led her to abuse her own grandmother, and ultimately made this kind woman feel unsafe in her own home.
In Minnie’s case, the proof of Exploitation of an Elderly Person was clear-cut once bank records were obtained and reviewed. Prosecutors should not underestimate the power of this statute. The elements are broad and may be easier to prove than Theft because we do not have to prove the victim’s lack of consent. The statute simply requires a showing that the defendant illegally or improperly used either an elderly person or an elderly person’s resources for his own monetary or personal benefit, profit, or gain.9 These actions can be proven by showing a mens rea of intentionally, knowingly, or recklessly. Additionally, the statute explicitly allows for co-charging under a different section, such as Theft. This case fit all of the elements of the offense: Minnie was well over the age limit for an elderly person, her Social Security income went in and out of her account without any of her bills being paid, and Michele was taking the money for her own personal use. Further discussion with Minnie also supported the Theft charge because she did not consent to Michele using her money the way she was.
The evidence of both physical and financial crime was so strong in Minnie’s case that we never offered the defendant probation. The defense attorney changed his opinion on how to handle the case after viewing all of the additional evidence and charges, and Michele ended up pleading guilty to all three charges and went to the judge for punishment. Upon seeing the evidence and hearing from Minnie, the judge sentenced Michele to the maximum of 10 years in the Texas Department of Criminal Justice in each case. With Minnie, the physical abuse surfaced first, but her abuser’s financial motivations helped us ensure that we could present the strongest possible case to the judge.
Case study: Dudley
Dudley’s story illustrates a more subtle financial motivation that we often see: a defendant abusing an elder for a roof over his head or food to eat. Dudley retired from a multinational company having received the “Most Admired Man” award. He was never an executive but worked hard and did very well for himself, considering his education ended after high school. Compared to the rest of his Fair Park neighbors, Dudley was well off. He owned his home and had a monthly income stream consisting of his pension and Social Security benefits. While his mental faculties were intact, Dudley had life-long breathing issues and had been diagnosed with cancer in the last year.
Just weeks after surgery for his cancer, his neighbor’s brother, Chuck, appeared at Dudley’s door and pleaded his story. Chuck had lost his job, his family kicked him out, and he just needed a place to stay for one night. Being a compassionate person, Dudley reluctantly agreed to just one night on his couch. But one night turned into 11, and tension between the men grew. Chuck ate all of Dudley’s food, left the usually well-kept house messy, and offended Dudley’s visitors. One day, Dudley’s pain from his surgery overwhelmed him, and he called his doctor for a prescription for pain medication. In a moment of desperation, Dudley asked Chuck to pick the prescription up for him—and Dudley was shrewd enough to call ahead and let the pharmacist know that Chuck was allowed to buy only the prescription on his debit card. When he came back, Chuck did not give the medicine to Dudley. Instead, he hid it, taunted Dudley, and punched him in the face when he stood up for himself and demanded to know where the medication was. At the time of the assault, Dudley was 77 and had dwindled to just over 100 pounds; Chuck was 30 years younger and in good shape. Although Chuck fled immediately following the assault, he was arrested when he returned to Dudley’s house later that night.
As we investigated the case and prepared for trial, we continued to wonder why Chuck had assaulted Dudley. (Although we did not have to prove Chuck’s motive, we wanted to find a grounding theory for the case.) During conversations with Dudley, he told us he intended to “put Chuck out” of his house soon, and he sensed Chuck knew that. It was subtle, but it gave us our theory: Chuck preemptively acted out against Dudley physically because his immediate financial well-being was in jeopardy.
Dudley’s health continued to fail and it was uncertain whether he would be able to testify for trial or a deposition,10 but Chuck had out-of-state felony convictions and saw the writing on the wall. He ended up pleading guilty and taking a trip to the Texas Department of Criminal Justice for two years. We hoped he might get a longer sentence from a jury, but Dudley was too sick to come to court to testify. Had Chuck not pled guilty to these charges, our plan was to pursue evidence that would support an Exploitation of Elderly charge as we did in Minnie’s case. As discussed above, charges under the Exploitation of Elderly statute are a powerful tool. Strongly consider it where prosecutors have an Injury to Elderly case with weak evidence, a witness who cannot articulate what happened, or a witness who cannot physically testify.
Minnie and Dudley’s cases illustrate the many factors at play in elder abuse. Our unit has come to realize the tell-tale signs of financial abuse often lurking in the background of physical abuse cases. The Abuse in Later Life Power and Control Wheel11 is a useful tool to keep around for understanding the dynamics of any case with an elder victim. It identifies the specific tactics perpetrators use in committing elder abuse. They include psychological abuse, denying access to religious events, ridiculing a victim’s values, threats, and isolation.
If the victim is able to speak with prosecutors, ask about the dynamics and relationships in his life. Most importantly, ask how those dynamics have changed since he came to know or be around the perpetrator. If the victim is unable to speak with prosecutors or investigators, see if APS has a case file on the victim. Elderly victims often still operate in a world outside of the Internet, so there are people in the community (outside of their family members) who know them. Consider speaking to a victim’s doctor, postal carrier, pastor, hairdresser, or banker—these people often provide valuable information about how the victim’s life changed since the perpetrator came along.
During the course of an investigation, some of the following things might jump out and indicate financial motivations underlying physical abuse: New legal documents such as powers of attorney and wills are often executed by perpetrators who coerce or mislead their victims. Once executed, the perpetrator will quickly use them to place herself on a victim’s bank account or make herself a representative payee for Social Security benefits. Gaining access to money often leads to vast changes in spending habits. Bank records going back six to 12 months prior to a perpetrator gaining access to a victim’s account will establish the baseline pattern for spending. Once an abuser gains access to an account, those habits will quickly change, often manifesting in large checks written to various individuals, significant cash withdrawals, and major purchases. With money going out for the perpetrator’s own use, the victim’s bills often go unpaid. Also keep in mind that payments to an insurance company, particularly life insurance, may also lead prosecutors to a recent change naming the perpetrator as the beneficiary. Another helpful place to look is the victim’s credit report, which might show newly opened lines of credit or accounts that may not show up in the victim’s existing bank accounts.
Lastly, seek out assistance from agencies that deal with elderly people and abuses against them, such as:
• Department of Family and Protective Services—Adult Protective Services;12
• Social Security Administrator—Office of the Inspector General;
• U.S. Department of Veterans Affairs;
• Office of the Inspector General—Criminal Investigations Division;
• Department of Aging and Disability Services;
• Attorney General’s Office—Medicaid Fraud Control Unit; and
• probate courts (when the victim is the subject of a guardianship or might need the protection of a guardianship).
These agencies have been working with elderly people for a long time and have not seen much prosecution of elder abuse crimes. Our unit’s experience with these agencies proves they are very willing to work collaboratively to make convictions a reality.
As the Baby Boomers age, district and county attorney’s offices across the state will see more and more elder abuse cases. While these cases present unique challenges, prosecutors should not doubt their strength. Do not be persuaded when a defense attorney says that “old people bruise easily”; “she wanted to give the defendant the house—just look at the will”; or “the defendant was really just helping” the victim out. A little bit of digging will often prove there is a lot more going on than meets the eye. Learning to spot the underlying financial motivations in physical abuse cases often yields fantastic evidence for added or strengthened criminal charges.
Our elder Texans have stories to tell, life to live, and assets to enjoy. While they might be easily victimized, strong prosecution of those who commit these crimes will send a message that these victims are not without protection.
1 We define elder abuse as encompassing physical abuse and neglect, emotional and psychological abuse, as well as financial exploitation.
2 Tex. Penal Code §22.04(c)(2) defines an “elderly individual” as anyone over the age of 65.
3 Jennifer M. Ortman, Victoria A. Velkoff & Howard Hogan, U.S. Census Bureau, An Aging Nation: The Older Population in the United States (May 2014) available at https://www.census.gov/prod/2014pubs/p25-1140.pdf.
4 Elder Financial Abuse: A Growing Epidemic, EverSafe (Jan. 8, 2015, 11:26am), https://www.eversafe.com/elder-financial-abuse/overview.html.
5 The role of the Senior Source in the EFSC is to prevent seniors from falling victim to frauds and scams, as well as the problems associated with inadequate income and excessive debt by offering a unique set of services including financial counseling, benefits assistance, insurance counseling, debt management, among others. The probate courts provide protection for vulnerable older adults by ensuring that there is a court-authorized guardian of the person and/or estate and regular monitoring for every older adult determined by the court to be incapacitated. The DA’s Office prosecutes cases involving the exploitation and abuse of older victims through the Elder Abuse Unit. Working together in a formal collaboration allows us to more effectively ensure the safety and security of some of our community’s most vulnerable members.
6 Tex. Penal Code §22.04.
7 Tex. Penal Code §32.53.
8 Tex. Penal Code §31.03 (old value ladder).
9 The code section also covers the same criminal activity against elderly and disabled individuals. See Tex. Penal Code §32.53.
10 Tex. Code Crim. Pro. arts. 39.02, 39.025.
11 Nat’l Clearinghouse on Abuse in Later Life, Abuse in Later Life Power and Control Wheel (2006) available at http://www.ncall.us/content/ abuse-later-life-power-control-wheel.
12 Law enforcement officials can call an APS hotline to report suspected abuse: 1-800-252-5400.