The range of financial activities covered by financial elder abuse are broad and include wrongful takings by caretakers, caregiver theft, fiduciary misconduct by lawyers, accountants, or investment advisors, and scams and investment advice by insurance and annuity sales persons, banks, and brokers. Even wrongful takings by family members or others through wrongful bequests in wills or trusts may constitute financial abuse. If any of these persons take money or property from elders when they should have known the taking would harm them, they may be liable for all damages and attorney fees, and so are their employers. And if the elder can prove the taking was the product of reckless or intentional misconduct, the elder may possibly recover damages for the emotional distress caused by the taking.
In analyzing a possible claim for financial elder abuse, it is often helpful to consider three issues:
- Who is really bringing the claim? It is simple to spot the person abused – but who is really going to pursue the claim? Often the abused elder is not aware of the abuse, or refuses to acknowledge it. Even if he is the abused elder competent to bring the claim. If he is, is his version of the facts reliable? Is he similar situated to other persons who may have been abused by the same person or business entity?
- Who is the abuser and what is his/her relationship to the abused client? Unlike traditional fraud claims, elder abuse claims focus on the state of mind and conduct of the abuser and can be proven even without testimony from the defrauded or abused party. The key question is – What is the evidence that the abuser knew or should have known that taking money or property would harm the elder? If there is none, what is the evidence that the abuser was in a confidential or fiduciary relationship with the abused and failed to disclose material facts or a conflict of interest to the elder or his representatives?
- Damages: This element is either the same or similar in both traditional fraud and financial elder abuse cases. There are three separate considerations: First, is the fraud or abuse ongoing? If so, injunctive relief is probably called for, either through a court protective order or other directive. Second, how much money or property has already been taken? If the amount is minor, the time and expense of a court proceeding may not be worth it. However, even if the amount is small, are there similar victims of the same type of conduct? Finally, are there emotional distress damages? If the defendant’s conduct is outrageous and intentional, emotional distress and punitive damages may be available. Third, what is the likelihood the defendant can pay it back, even if you are successful? This depends on many factors, including on the defendant’s resources, business status, place of business, and how long ago the fraud occurred.