Elder Abuse – When Borrowing Becomes Against the Law

by Sara M. Donnersbach, Esq.

As the baby boomer population passes the age of 65, the elder population is ever growing.  In conjunction with this growth, is the increase of elderly Americans suffering abuse in their own homes, in relatives’ homes, and even in facilities. By learning some signs and symptoms of elder abuse and how to act on behalf of an elderly person who is being abused, the abuse can not only stop, but be prevented.

One type of abuse, which is often overlooked, is financial exploitation.  Today’s troubled economy coupled with a societal expectation of entitlement, is leading to more and more family members and care givers engaging in the unauthorized use of an elderly person’s funds or property.  This action involves things as simple as misuse of an elder’s personal checks, credit cards, or accounts; outright theft of cash, income checks, or household goods; the forging of the elder’s signature; and engaging in identity theft.  

While in Ohio, the law requires that certain people[1] who suspect abuse “shall immediately report such belief to the county department of job and family services,” and other groups of people[2] having reasonable cause to believe that an adult as suffered abuse (including financial exploitation) “may report or cause reports to be made of such belief to the department,” the law isn’t as strong as in other states that find such abuse a crime, reportable under Federal law, by financial institutions.

Despite this, a financial institution may have a requirement under Federal law[3] to report this type of abuse to authorities.  The Ohio Administrative Code[4] also has implemented the requirement to report a crime or suspected crime involving funds over $5,000.00, that occurs at the office of a credit union, within 30 days.  While the law isn’t clear as to whether elder financial exploitation constitutes a “crime or suspected crime,” it is recommended to err on the side of caution, and file a Suspicious Activity Report (SAR) if elder financial exploitation is suspected.

There are several signs to look for, when elder abuse by financial exploitation is suspected.  First, determine if there are significant withdrawals from the elder’s account(s).  Be aware of any sudden changes in the elder’s financial condition.   While the next sign may be hard to identify when an elder suffers from dementia or Alzheimer’s disease, listen and investigate the facts if there is a claim of items or cash missing from the senior’s household.  

Other pertinent signs are unexpected changes in wills, power of attorney, titles, and policies, or the addition of a person to the elder’s bank signature card/account.  If bills are suddenly not being paid, it may not be the elder’s fault, but instead may be a sign of abuse.  If the elder had the funds to pay bills in the past, and is not in need of a guardian due to any incapacitation issue, take note of any unpaid bills or transfer of assets, even ATM withdrawals. 

If elder abuse is suspected, the time to act is immediately.  By taking action to stop elder abuse by financial exploitation, you may also limit losses as a health care provider to your facility, and ensure the elder’s care is properly paid.  Make a record of what is observed, advise family members whom can be trusted, and other people with authority over the elder.  In the U.S., you can also call Eldercare Locator at 1-800-677-1116.  This number can provide local agency assistance.

Sara Donnersbach is a Partner in the Cleveland office of Weltman, Weinberg & Reis Co., LPA where she manages the Governmental, Healthcare, Commercial Utility and Landlord/Tenant Collections Groups. She can be reached at 216.685.1039 or sdonnersbach@weltman.com.

Footnotes
[1] “Any attorney, physician, osteopath, podiatrist, chiropractor, dentist, psychologist, any employee of a hospital as defined in section 3701.01 of the Revised Code, any nurse licensed under Chapter 4723. of the Revised Code, any employee of an ambulatory health facility, any employee of a home health agency, any employee of an adult care facility as defined in section 3722.01 of the Revised Code, any employee of a nursing home, residential care facility, or home for the aging, as defined in section 3721.01 of the Revised Code, any senior service provider, any peace officer, coroner, clergyman, any employee of a community mental health facility, and any person engaged in social work or counseling …” O.R.C. 5101.60(A).
[2] O.R.C. 5101.60(B)
[3] The Bank Secrecy Act, 12 CFR 21.11.
[4] O.A.C. 1301:9-2-37.

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One thought on “Elder Abuse – When Borrowing Becomes Against the Law

  1. Granted, abuse happens, and diligence is really needed if a case is suspected. Not mentioned in the article, however, is almost all seniors become paranoid that people are stealing their assets, and are very vocal about it (ask any nursing home/assisted living manager.) Simply managing assets, paying for out-of-pocket expenses associated with senior care until assets are dwindled down to the point where Medicare/Medicaid and other social services kick in can be really difficult.

    An accusation, however innocent, could have disasterous effects for the caregiver. A simple SAR could lead to false accusations that could cost that caregiver a fortune in legal fees defending a non-event.

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