Financial Exploitation and Physical Abuse

by Mark A. Krohn, Esq., Partner
Jacobowitz & Gubits, LLP

FINANCIAL EXPLOITATION AND PHYSICAL ABUSE By Mark A. Krohn, Partner, Law firm of Jacobowitz & Gubits, LLP “Financial exploitation” is a term used here to mean illegal or improper use of money or property for another person’s profit or advantage. In some cases, seniors that are vulnerable or frail, and not fully capable of defending themselves, are taken advantage of. An example of this might be a nursing home resident who seeks help because a family member entrusted with her financial affairs has failed to pay her bills at the facility where she resides. Seniors in such circumstances may often worry and become confused because they do not know what has happened to their money. Some seniors resist seeking legal help for physical abuse or financial exploitation when the abuse comes from family members. The fact that family members are often perpetrators of financial exploitation may act to increase the fear and embarrassment that a vulnerable or frail person may feel when they are subjected to mistreatment. Consequently, the individual may feel less likely to seek help and assistance from others. The greatest challenge for an attorney representing any person in these circumstances is to obtain an effective remedy for his or her client without an unpleasant legal battle. One often must fast investigate the management of the frail or disadvantaged person’s finances. This usually requires obtaining bank and other financial records and contacting the Social Security Administration if Social Security checks are involved. If the investigation uncovers improper management of funds it may be necessary to revoke an existing power of attorney, appoint of a new power of attorney, or restructure bank accounts, to name a few options. Seniors who are victims of financial exploitation who seek help are often concerned that they will get the perpetrator in trouble with the law. Victims frequently indicate that they do not want the person who has taken their money or property to “go to jail.” It is important in this context to distinguish between civil law and criminal law. In New York, crimes are prosecuted by the Offices of the District Attorney and the Office of the Attorney General. Private law firms can only obtain civil remedies for clients. Moreover, attorneys are prohibited by the Code of Professional Responsibility from threatening criminal action in order to gain an advantage in a civil case. Therefore, only in very rare cases will private legal services for the Elderly refer a case of financial exploitation to local police or a District Attorney for prosecution, and then only at the express request of the client. In financial exploitation cases, the goals of civil representation are primarily recovery of money or property taken, rather than punishment. The most difficult aspect of financial exploitation cases involving the elderly is to actually recover the property or money taken. Frequently the money or property has been spent by the perpetrator. Thus, even where the facts suggest a high probability of victory in court, the hard work of obtaining a money judgment may not be worth the effort if there is no possibility of collecting. For many, litigation, particularly against a family member, may not be worth the price. The attorney provides the client with all of the options so that she can weigh the benefits and burdens and reach the best decision for her. Many seniors choose to have an attorney pursue settlement negotiations, even if it means they will likely get a smaller recovery.