Transcript forensic accounting and financial exploitation of the elderly

Elder Abuse & Colorado’s New
Mandatory Reporting Law
What does this mean for you?
1st JD Elder Abuse Unit
Jefferson & Gilpin Counties
Scott Storey – Senior Chief
Candace Werth – Prosecutor
Colorado DHS APS
Fonda Barkofske
Program Specialist
Elder Abuse:
What is it and
What’s the Big Deal?
Elder Abuse can be…
• Physical, Financial, Sexual Abuse or Neglect
• Different Types of Abuse go Hand-in-Hand
– A Victim that is Financially Exploited may also be
Sexually or Physically Assaulted
– A Neglect Victim may also be Financially Abused
Elder Abuse can be…
• Traditionally it has been …
UNDER – REPORTED
UNDER – INVESTIGATED
SELDOM PROSECUTED
• Similar to Child Abuse in 80’s & DV in 90’s
Why Elders?
Elder Adults
• Vulnerable Population
• May Rely on Others
– Help with ADL (activities of daily living)
– Help with bills, conducting business, errands
• Burden of care can lead to Neglect
• Stress can lead to Physical Assaults
• Financial Assets
Family Caregiver Stress
• 80% of Alzheimers and Dementia care in the
home is provided by family members
• 61% Caregivers rated stress as high or very
high
• 33% reported symptoms of Depression
• 56% reported strain regarding finances
• 53% reported strain in family relationships
2012 Alzheimer’s
Disease Facts and
Figures; Alzheimer’s
Association
Colorado is Growing and Aging
• Total State Population grew 17% from 2000-2010
• Persons age 70 years and over will increase 28%
by 2017
• Persons age 70 years and over will increase 142%
by 2032
S.B. 12-078 Report
November 30, 2012
• The Number of People that live to 90 and beyond has
tripled in the past three decades
• The Number of People that are 65 years old or older
is 40 million (13% of our population and growing)
• One in 10 older Americans experience abuse – many
in multiple forms.
• 70-90% of the Perpetrators of Elder Abuse are family
members, loved ones or caregivers
Source: AgelessAlliance.org
Facts:
• The annual loss by victims of elder
financial abuse is estimated to be at least
$2.9 billion dollars.
“Silver Tsunami”
2001 Pew Report
Jeffco’s Elder Abuse Unit
2012 Caseload Breakdown
60
50
40
Robbery 11%
Theft 54%
Assault 35%
Sexual Assault 1%
30
20
10
0
Robbery
Theft
Assault
Sex Assault
Types of Elder Abuse Cases – 2012
• 11% Robbery & Theft from Person
– Random Thug / Purse Snatch
• 54% Theft, ID Theft & Burglary
– Kids, Grandkids, Neighbors and Nurses
• 34% Assault
– Drunken Son
• 1% Sex Assault
– Caregiver, Family Friend, Maintenance Man
Assisted Living & Nursing Home Cases
• Drug Diversion
– Taking patients meds
• Thefts & ID Theft
• POA Fraud
– Home discovers theft
• Neglect
• Sexual Assault
– Employee on Resident
– Resident on Resident
Elders are Today’s Forgotten Victims
Hurdles to Prosecution
Traditional Reaction to Financial Abuse:
“It’s Civil. We can’t do anything about it.”
Why Report when Authorities do
Nothing?!?
[That’s the myth we need to correct now]
Myths
• Elder Victims make Poor
Witnesses
• Can’t prosecute with a Dead
Victim
• Reluctant and Recanting
Victims
• Appears Civil
• Not a crime if the Victim
was reimbursed
• Not a crime if the Victim
was aware or gave consent
• Grandma vs. Gangbanger
• Hello – Murder Cases. We
do it all the time
• Nothing new -> DV Cases
• Don’t Assume – Dig Deeper
• Theft involves your Intent
when you take it
• Undue Influence negates
consent
Colorado’s New Law
Mandatory Reporting of Elder Abuse
Senate Bill 13-111
Mandatory Reporting of Elder Abuse
• Colorado: 1 of only 3 states that didn’t require
those that work with Elders to Report Abuse
• Law Signed 5/16/13
• Training began January
2014
• Reporting becomes
mandatory July 1, 2014
Previously…
• Had Enhanced Crimes Against At-Risk Adults
– C.R.S. §18-6.5-103
– At-Risk Adult was ≥ 60 yoa
• Had Urged Reporting under Title 26
– Reporters are ‘urged’ to report abuse including self neglect
Now SB 13-111 created…
• Addition Crimes & Mandatory Reporting of Elder Abuse
– C.R.S. §18-6.5-108:
– Those who Work with the At-Risk Elder Population Must Report Known or
Suspected Abuse AND
– Law Enforcement MUST Investigate when Appropriate
– At-Risk Adult and At-Risk Elder ≥ 70 yoa
Mandatory Reporting
• Who are reporters?
• What needs to be reported?
• What are the responsibilities
of law enforcement?
Mandatory Reporters
Who?
Medical professionals including
Doctors, Nurses, Chiropractors, Pharmacists,
Dentists, Medical Examiners & Coroners
Law enforcement officials and personnel
Fire protection & EMS
Hospitals & Care facilities
Home care placement agency
Court-appointed guardians and conservators
Community-centered board staff
Psychologists & Mental Health professional
Social work practitioners
Clergy
Financial institutions
**All above – whether paid or unpaid
Mandatory Reporters
What?
Any person who has observed
abuse or exploitation of an atrisk elder, or who has reasonable
cause to believe that an at-risk
elder has been abused or has
been exploited or is at imminent
risk of abuse or exploitation,
shall report such fact to a law
enforcement agency not more
than 24 hours after making the
observation or discovery.
Lingering Questions:
What Else Do I have to do?
Reporters Duties:
• Report known or suspected abuse or
exploitation to Law Enforcement
• within 24 hours
• That’s it!
– Reporters do not investigate
– Reporters do not locate evidence
– Reporters do not interview witnesses
Reporter’s job is Simple . . .
Make the Call!!
What is “Abuse” and “Exploitation” under
Mandatory Reporting Law?
Definitions . . . .
Abuse:
• Non-accidental bodily injury, SBI or death
• Confinement or restraint that is unreasonable
under generally accepted caretaking standards
• Subject to sexual conduct or contact classified as
a crime
• Caretaker neglect
C.R.S. §18-6.5-102(1)
Exploitation:
Use of deception, harassment, intimidation or undue
influence to permanently or temporarily deprive an at-risk
elder of the use, benefit or possession of his/her money,
assets or property,
OR. . .
Without legal authority:
– Hires a third party for the profit or advantage of the person or
another person to the detriment of the at-risk,
Example: Paying friends or family to clean or do yard work
OR. . .
C.R.S. §18-6.5-102(10)
Exploitation:
C.R.S. §18-6.5-102(10)
Without legal authority:
– Forces, compels, coerces or entices an at-risk elder to
perform services for the profit or advantage of the person or
another person against the will of the at-risk elder, OR . . .
Example: Childcare, house cleaning, etc.
– Misuse property of at-risk elder in manner that adversely
affects the at-risk elder’s ability to receive health care or
health care benefits or to pay bills for basic needs and
obligations
Example: Takes money or assets (with or without permission) and Elder cannot
qualify for Medicaid or other assistance.
Exploitation
• “Exploitation” is not a separate crime but it may be
theft, extortion or other crime.
• Exploitation must be reported to Law Enforcement.
• Investigation needed because it might lead to
criminal charges.
Mandatory Reporting Requirements
•
Within 24 hours –
Mandatory Reporter Shall File Report with
Law Enforcement within 24 hours of
Observation or Belief of Abuse
C.R.S. §18-6.5-108(1)(a)
Lingering Questions:
What Police Agency Do I Call?
What Number Do I Call?
To Whom do you Report?
• Report should be made in Jurisdiction where
Suspected Abuse or Exploitation Occurred
• If it is unknown where it occurred then call
your local law enforcement agency
Call 911 for:
– “In Progress” abuse
– or involved parties are on scene
Call Non-Emergency number for Local Law
Enforcement Agency for:
– Abuse discovered or suspected that is not imminent
– “Cold Calls” or if abuse occurred previously
– No Immediate Danger
You may be referred to another jurisdiction
when it is appropriate.
If so, you will need to make report to that agency
to fulfill the Mandatory Reporting
Requirements.
Mandatory Reporting
Exception –
Mandatory reporter knows another person has already
reported the same allegation to law enforcement
C.R.S. §18-6.5-108(d)
Law Enforcement Needs:
– Name, Address, and Contact Info of
• the At-Risk Elder
• the person making the report
• the at-risk elder’s caretaker, if any
– Name of the Alleged Perpetrator
– Nature and Extent of the Condition that Required
the Report to be Made
– Any other Pertinent Information
C.R.S. §18-6.5-108(2)(a)
Purpose of Mandatory Reporting Law:
Encourage Reporting &
Stop Elder Abuse!
Remember…
• Report MUST be made to Law Enforcement
– Reporting based on licensing requirements (Board
of Nursing, Board of Health, etc.) is not sufficient.
• You can’t report to APS and have them call
Law Enforcement
Lingering Questions:
What if I am Wrong?
Immunity
• If the Report is Made in Good Faith
– Reporter is Immune from suit and liability for
damages in any civil action or criminal prosecution*
*Exception – No Immunity for Perpetrator even if
Perpetrator Reports the Abuse
• Reporting duty does not create a civil duty of care or
establish a civil standard of care that is owed to an
at-risk elder
C.R.S. §18-6.5-108(2)(c)(3), (4), (5)
Lingering Questions:
What happens AFTER the report is
made?
Law Enforcement Responsibilities
•
Within 24 hours – L.E. shall notify Human Services
agency and District Attorney’s Office of report (where
alleged abuse/exploitation occurred)
•
L.E. shall complete investigation when appropriate
•
L.E. shall provide summary report of the investigation
to appropriate Human Services agency and District
Attorney’s Office
C.R.S. §18-6.5-108(2)(b)
Lingering Questions:
Will the Police REALLY investigate
when in the past they haven’t
bothered or don’t seem to care?
Learning Curve . . .
• WE ARE ALL LEARNING
• The system won’t be Perfect Right Away
– Some Jurisdictions Ahead of Others
– Some Jurisdictions Not Yet Up-To-Speed
• Training needed for Prosecutors, Police,
Reporters
• Be Patient and Persistent
• Together – We can make the Change
Some Examples . . .
Examples
• Bank Teller
– Person exerting influence to get Elder to withdraw money,
change beneficiary or add POA
– Observes Elder with bruises and appears to be victim of an
assault
• Health Care Worker
– Believes a co-worker stole from a resident because wallet
or jewelry missing and no one else had access
– Observes a resident sexually assault another resident
• Doctor
– On routine visit observes bruising not consistent with
accidental bumps or medication regimen
Lingering Questions:
What if I DON’T report?
Failing to Report - Penalties
•
Willfully Failing to Report Known or Suspected
Elder Abuse
–
–
–
•
Class 3 Misdemeanor
Up to $750 Fine
Up to 6 months in Jail
GOAL: Encourage reporting NOT
prosecute those that fail to report.
C.R.S. §18-6.5-108(c)
• Knowingly Filing a False Report
– Class 3 Misdemeanor
– Up to $750 Fine
– Up to 6 months in Jail
2013 Crimes and Changes
Charges:
• Caretaker Neglect, M1
– knowingly commits Caretaker Neglect
• Crimes Against At-Risk Elder, M1
– knowingly acts in a manner likely to be injurious to
the physical or mental welfare of an At-Risk Elder
C.R.S. §18-6.5-103(6)
Caretaker:
A person who:
– Is Responsible for the care of Elder as a result of a
Family or Legal Relationship, OR
– Has Assumed Responsibility for Elder, OR
– Is Paid to Provide Care or Services to an At
Risk Elder
C.R.S. §18-6.5-102(5)
Caretaker Neglect:
When adequate food, clothing, shelter, physical
care, psychological care, medical care, or
supervision is not provided in a timely manner
and with the degree of care that a reasonable
person in the same situation would exercise.
C.R.S. §18-6.5-102(6)
Exception:
When withholding, withdrawing, or
refusing any service is in accordance with
valid medical directive or order or
palliative plan
Self-Neglect is not a Crime*
*APS, animal control, code enforcement
might be helpful though
Types of Physical Abuse
• “Traditional”
– Hitting, slapping, etc
•
•
•
•
Overmedicating
Force-feeding
Restraining
Smothering
If Victim is At-Risk Elder:
• 3° Assault: M1  F6
– “Knowingly or Recklessly causing Bodily Injury to an At-Risk Elder”
– No actual Injury, Bruising or Marks Required
– Physical Pain is sufficient
• C.R.S. §18-6.5-103(3)(c)
• 2° Assault: F4  F3
– “knowingly or recklessly causing Serious Bodily Injury to an At-Risk
Elder”
– “Knowingly or recklessly causing Bodily Injury to an At-Risk Elder by
means of a deadly weapon”
• C.R.S. §18-6.5-103(3)(b)
• 1° Assault: F3  F2
– “Knowingly or Recklessly causing Serious Bodily Injury to an At-Risk Elder
by means of a deadly weapon.”
• C.R.S. §18-6.5-103(3)(a)
We are Telling the Police to
STOP ASKING…
• Victims in Colorado don’t have to ‘sign a complaint’
• Victims in Colorado don’t have to sign a commitment to
prosecute
• Victims don’t bring the cases
• Victims don’t have to agree with or support the charges
STOP ASKING THEM IF THEY WANT TO PROSECUTE
STOP ASKING IF THEY WANT THE SUSPECT ARRESTED
Please, Don’t put that pressure on them!
• We don’t ask a Victim of DUI crash if she
wants to Prosecute
• We don’t ask a Bank Teller if he wants the
Robber Prosecuted
• Stop asking Elder Victims. It makes them feel
responsible and have guilt over charges
Senate Bill 14-98, Effective 4/7/14
Criminal Exploitation of an At-Risk Elder:
Knowingly using deception, harassment, intimidation
or undue influence to permanently or temporarily
deprive an at-risk elder of the use, benefit, or
possession of anything of value.
F3 if ≥ $500
F5 if < $500
C.R.S. §18-6.5-403 (7.5)
“Undue Influence” means the use of influence to take
advantage of the at-risk Elder’s vulnerable state of
mind, neediness, pain or emotional distress.
C.R.S. 18-6.5-102 (13)
Uniform Power of Attorney Act
• Duties of an Agent. C.R.S.§15-14-714
– Act in accordance with principal’s
expectations
– Avoid conflicts of interest
– Act with care, competence and diligence
– Act in good faith
– Act within scope of POA
– Act loyally
– Keep a record of all receipts,
disbursements, and transactions
– Preserve estate plan of principal
POA – specific grants of authority
“Hot powers” – agent CANNOT do the following
without a specific grant of authority from principal
for the following transactions:
–
–
–
–
Create, amend, revoke a trust
Make a gift
Create or change beneficiary designations
Non-family member cannot create an interest in the
principal’s property for self or others.
C.R.S. §15-14-724
• Having Legal Access to the Money doesn’t mean it is
NOT a crime.
• Access doesn’t make it Civil!
• POA Commits Theft when they convert asserts or
money for their own use
• Child commits Theft when they unduly influence
Elder into signing over Deed to the house
Training mandatory reporters
– Law enforcement program
– Financial institutions, medical professionals, etc.
POST/Jeffco Training Task Force
• Created 4 hour POST Training
• Explain Elder Abuse & Mandatory Reporting
• Each department and Sheriff’s Office must have AT
LEAST ONE officer trained
• Training began January 2014.
• Collaboration / Partnerships
– Law Enforcement
– Adult Protective Services
– Probate Judge and Staff
– Elder Law Lawyers
– Forensic Accountants
– Elder Abuse List Serve
Challenges of Working With Elders
Reluctant Victims
Victims might:
• Recant statement
• Withhold information
• Protect abuser rather than focus on
personal safety
• Leave an abuser only to return later
• Not follow through on an investigation
• Not take advice from law enforcement
Victim Fears:
Sending Perp
to Prison
Losing
DecisionMaking
Court
Process
RELUCTANCE
TO
PROSECUTE
Losing
Family
Embarrassed
Ashamed
Losing
Independence
Victim with Diminished Capacity
•
•
•
•
•
•
Cognitive Defects do not mean a lack of capacity
Victim may still be able to testify
Work with the Victim
Short, focused sentences
Surround Victim with Corroborating Evidence
Show Vulnerability
They make GREAT witnesses It just takes TIME!
Working with Elder Victims
•
•
•
•
Talk slower
Get on their level if seated or in wheelchair
Be Patient
May have to return the next day
– Stress of event
– Sundowning
– Dehydration
• May take several meetings to accomplish
purpose
You might be surprised who may
be an abuser. . .
Impact of Mandatory Reporting
– FOCUS: Individuals who work with a vulnerable population
are required to report any type of witnessed or suspected
abuse
– TRAINING: Every law enforcement agency must have at
least one person trained by POST standards regarding
Elder Abuse
– IMPACT: Criminal filings will increase
– PURPOSE: Intent is to compel reporting not prosecute
people for failing to report
What is the Role of APS?
• Title 26-Human Services Codes
• Helps at-risk adults when they are
unable to meet their own needs
and are victims of mistreatment.
• Investigate reports of alleged
mistreatment.
• Offers protective services for atrisk adults who have been
mistreated.
• Collaborates with law
enforcement, the District Attorney,
and other community partners to
help protect at-risk adults.
APS will continue as usual.
• APS will continue to take
reports of mistreatment and
self-neglect of at-risk adults.
• The same group of
professionals who are required
to report mistreatment of atrisk elders are urged to report
mistreatment and self-neglect
of at-risk adults.
• Anyone can and should report
suspected abuse or neglect to
APS or law enforcement.
At-Risk Adults
At-risk adults
are persons 18
years of age or
older who are
susceptible to
mistreatment
or self-neglect
because:
Title 26-3.1-101
They are
unable to
obtain
necessary
support
services, or
They lack
sufficient
understanding
or capacity to
make or
communicate
responsible
decisions.
87
Examples of at-risk adults
A 67 year old male with dementia who cannot
remember to pay his bills and has no water or
electricity in his home.
A 20 year old developmentally delayed (DD) adult
who is being locked in her bedroom by her
caregiver for 8 hours a day without food and water.
A 70 year old male who lives alone and there are
reports he is not eating or bathing and he is unable
to get to the store for food.
88
Examples of adults who are NOT
“at risk adults”
A 35 year old man
who walks with a
cane or uses a
wheelchair but is
able to perform all
activities necessary
to provide for his
health and safety.
• Makes poor investment
decisions or participates in a
An adult of any lottery scam;
• Is involved in a landlordage with
tenant dispute;
decisionmaking
• Chooses to live in a dirty
capacity who:
home or with multiple pets;
• Uses alcohol and drugs to
excess.
89
Self-Neglect
Self-Neglect is NOT a crime
Self-neglect occurs when an at-risk adult
endangers his/her health, safety, welfare, or life
by not getting the services they need to meet
their basic human needs.
Examples and Signs of Self-Neglect
At-risk adult doesn’t understand how to manage
his/her medications and some days takes “too
many” and some days “doesn’t take any at all.
Unsafe living conditions; lack of food or basic
utilities.
Inability to manage finances and pay monthly bills;
in process of losing their home.
APS Priorities
Confidentiality
Consent
Self-Determination
Least Restrictive Intervention
92
Right to Refuse Services
At-risk adults have the right to
make lifestyle choices that
others may see as objectionable
or even dangerous, including:
•Refusing medical treatment or
medication
•Choosing to abuse alcohol or drugs
•Living in a dirty or cluttered home
•Continuing to live with the
perpetrator
•Keeping large numbers of pets, or
•Engaging in other behaviors that
may not be safe
93
Making a Report to APS
• Have as much information as possible about the at-risk adult,
the perpetrator and what is concerning you. APS will need
the following information:
1. Name and address of the at-risk adult.
2. A description of the alleged mistreatment and the situation;
what did you observe?
3. What is the nature and extent of the injury?
4. Who is the alleged perpetrator; name and address if possible.
5. Any other information that you feel is relevant.
94
What Happens After I Make a
Report?
• APS will screen the report and determine the appropriate
response.
• The report may be shared with law enforcement.
• APS will take appropriate action, which may include an
investigation.
• APS may request a joint investigation with law enforcement
or another agency.
• APS may offer protective services to the at-risk adult
95
Beginning July 1, 2014, you MUST report:
Abuse,
Caretaker
Neglect,
Exploitation
Of an at-risk
elder
To law
enforcement
Within 24
hours of
observation
or discovery
Now and continuing after July 1, 2014,
you are URGED to report:
Abuse,
Caretaker
Neglect,
Exploitation,
and Selfneglect
Of an at-risk
adult
To APS
Within 24
hours of
observation
or discovery
96
Our Goal…
THANK YOU!