Bar News - March 18, 2015
Elder, Estate Planning & Probate Law: New Law Criminalizes Elderly Financial Exploitation in NH
By: Susan Hollinger
Elderly financial exploitation is becoming a significant and growing problem in New Hampshire as well as in the rest of the Country. To get an idea of the severity of the problem, according to the National Adult Protective Services Association (NAPSA), a national nonprofit with members in all 50 states, 1 in 20 older adults indicate some form of perceived financial mistreatment occurring in the recent past. Also, according to a 2011 MetLife study of elder financial abuse, as much as $2.9 billion per year is stolen from seniors.
Older adults can become targets of financial exploitation not just by professional scammers, but also by family members, neighbors, friends, caregivers, financial advisors and others because they often have significant assets and are vulnerable to exploitation due to poor health, loneliness or other issues. The NAPSA website lists common ways family and others in a trusted position exploit vulnerable adults including:
- Using a Power of Attorney, given by the victim to allow another person to handle his/her finances, as a license to steal the victim’s monies for the perpetrator’s own use;
- Taking advantage of joint bank accounts in the same way;
- Using ATM cards and stealing checks to withdraw monies from the victim’s accounts;
- Threatening to abandon, hit or otherwise harm the victim unless he or she gives the perpetrator what he/she wants;
- Refusing to obtain needed care and medical services for the victim in order to keep the person’s assets available for the abuser; and
- In-home care providers charging for services; keeping change from errands, paying bills that don’t belong to the vulnerable adult, asking the vulnerable adult to sign falsified time sheets, spending their work time on the phone and not doing what they are paid to do.
New Hampshire already has a mandatory reporting law directing any person suspecting exploitation of an incapacitated adult (or a person believed to be incapacitated), to report such suspicion to the commissioner of health and human services. However, HHS jurisdiction only extends to “incapacitated” adults, which excludes many other vulnerable, older adults susceptible to this type of abuse.
Because of this gap in the law, New Hampshire lawmakers passed legislation amending the criminal code to make financial exploitation of an elderly, disabled or impaired adult, a criminal offense. They did so with the help from the Senior Law Project of New Hampshire Legal Assistance and the Merrimack County Coordinated Community Response Team, a multi-disciplinary team consisting of 22 different organizations and community members working to improve response to elder abuse through increased collaboration and coordination.
Prior to this statutory change, unless the incident involved an obvious crime, such as a forged check, it was common for reports of financial exploitation to be considered “family” or “civil” matters, leaving those who report their suspicions, or leaving the victim, with nowhere to turn and the perpetrator free to continue the exploitation.
As of Jan. 1, RSA 631:9 and :10, the sections of the criminal code dealing with assault and related offenses, gives law enforcement officers and prosecutors clear guidance on what constitutes the crime of financial exploitation, thus supporting efforts to successfully investigate and prosecute offenders.
Under the amended law, for example, it is criminal financial exploitation if a person, in the absence of legal authority, knowingly or recklessly uses undue influence, harassment, duress, force, compulsion or coercion to acquire property (real, personal, or financial), of an elderly adult, or to establish a fiduciary relationship that gives the person control of the elder adult’s property.
“Undue influence” is defined in the new law to mean the intentional use, by a person in a position of trust and confidence, of that position to obtain an unfair advantage over the elderly adult, through actions or tactics, including emotional, psychological and legal manipulation. It is also criminal exploitation under the amended law if in breach a fiduciary obligation recognized in law, property of the elderly adult is used for the benefit of someone other than the elderly adult.
Because of this amendment to the criminal statutes in New Hampshire, there are more clearly delineated avenues to intervene and address, and hopefully reduce, financial abuse of the elderly. The first step is to increase awareness among all stakeholders so that this crime is recognized, reported and prosecuted.
The New Hampshire Bar Association is sponsoring a CLE program June 12 about this new law and ways to respond to financial exploitation.
Susan Hollinger, a partner at Gallagher, Callahan & Gartrell, wrote this article with the assistance of Cheryl Driscoll. Hollinger practices in the financial services/banking department of the firm. Driscoll is director of the Senior Law Project at NH Legal Assistance. Both were part of a panel discussing financial exploitation of the elderly at the NH Bankers Association 2014 annual compliance conference. Learn about the upcoming NHBA•CLE program on this topic.