From Ken Ditkowsky–Elder Abuse and the Prosecutor’s Resource

Great publication on proscuting elder abuse may be found at:

https://www.in.gov/ipac/files/The%20Prosecutor%27s%20Resource%20-%20Elder%20Abuse%20(2017).pdf

Here are some excerpts:

INTRODUCTION
Elder abuse cases often call on prosecutors to utilize investigative and prosecutorial skills that cross over many areas of specialty, including fraud and other financial crimes, child abuse and neglect, domestic violence, and sexual abuse. Crimes of elder abuse often co-occur, so it is not uncommon for a case to include theft crimes along with abuse and/or neglect as well as infliction of emotional or psychological abuse. In some cases, financial exploitation may be the motive for other forms of abuse or neglect. Understanding the potential connections between forms of abuse may help prosecutors create stronger, more comprehensive cases, and also address the full spectrum of perpetrators’ behaviors.1 As a result, prosecutors must not only be alert to indications of all forms of abuse that may be part of an overall pattern of abuse or neglect, but must also collaborate with other prosecutors and professionals who have expertise in relevant areas. Elder abuse cases are different from other kinds of cases in their complexities and frequent recurring issues, including: dynamics between the parties; commission
by multiple perpetrators, settings of abuse; issues of health and mortality; current and prior decisional capacity;types of evidence; establishing causation; dealingwith elderly defendants, and ageism. Many outside entities, such as Adult Protective Services (APS), the Long-Term Care Ombudsman (LTCO), aging services, and licensing and regulatory agencies, may conduct separate concurrent investigations; interview victims,   perpetrators, and witnesses; collect evidence; or initiate cases.
This Prosecutors’ Resource is designed to assist with investigating and prosecuting cases involving abuse, neglect, and financial exploitation of an older victim. Due to the prevalence of elder abuse committed by individuals known to the
victim who are often in a position or relationship of trust, this Resource will focus on cases involving nonstranger perpetrators.2  Additionally, this Resource will briefly address abuse committed in facility settings but will focus primarily on abuse committed within the community where older adults reside and abuse most often occurs. Much of the information, however, is applicable to cases no matter the setting.3
This Resource will define and identify elder abuse and will provide strategies and tools for prosecutors to assist in evaluating, investigating, charging, prosecuting, and resolving cases intended to protect victims from further harm and hold offenders appropriately accountable. It is divided into two parts:
Part One: Overview of Elder Abuse provides foundational knowledge needed to handle an elder abuse case. It begins by defining elder abuse, including the various forms and co-occurrence of crimes. Part One further discusses the characteristics of elder abuse victims and perpetrators, the aging body, and issues of competency and capacity that will all inform prosecutors’ decision-making in cases and interactions with victims.
Part Two: Prosecuting Elder Abuse discusses strategies for working with older victims in elder abuse cases and addresses the individual steps and considerations for prosecuting elder abuse cases, beginning with the initial interview and investigation (including strategies for charging) through sentencing.
Table of Contents
1 For example, a beneficiary under a will may act to hasten the victim’s death, or a theft of assets could leave the victim with insufficient funds to pay for food, medicine, or utilities.
2 “[S]trangers accounted for only about 8% of recent emotional mistreatment episodes, compared to 25% by romantic partners/ex partners, and 18% by children or grandchildren and the rest by acquaintances;” family members accounted for 76% of the physical abuse committed against older adults; “family members accounted for 52% of the most recent [sexual] assaults (spouses 40%), and strangers accounted for
only 3%.” Ron Acierno, et al., Prevalence and Correlates of Emotional, Physical, Sexual, and Financial Abuse and Potential Neglect in the United States: The National Elder Mistreatment Study, 100(2) Am. J. Pub. Health 292-97 (2010).
3 Abuse committed within a facility can be perpetrated by family, friends of the victim who visit, or by those associated with the facility—staff, volunteers, and other residents.
Current as of April 2017
5
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© 2017 AEquitas. All Rights Reserved.
1100 H Street NW, Suite 310, Washington, DC 20005
Part One: Overview of Elder Abuse
A. Defining Elder Abuse
Elder abuse has been defined as “physical, sexual or psychological abuse, as well as neglect, abandonment and financial exploitation of an older4 person by another person or entity, that occurs in any setting, either in a relationship where there is an expectation of trust and/or when an older person is targeted based on age or disability.”5 This definition distinguishes between illegal acts that happened to be committed against older persons and those where there is a unique relationship or dynamic between victims and their abusers or where an older person is targeted.
Elder abuse occurs in a variety of forms and acts, committed against older adults, by one or more individuals, corporations, and other entities, in any location in which the elder may be located, including the elder’s home, community setting, or a facility. Perpetrators may commit abuse:
• In a relationship in which there is a societal expectation of trust, such as caregivers, family, intimate partners, fiduciaries, faith community members; and/or
• When the elder is targeted because of a real or perceived vulnerability, such as frailty, cognitive impairment, or physical disability (and therefore less likely to report, fight back, understand what has happened, or be a credible witness). This category includes some scams where there is proof the victim was targeted because of these  characteristics.
This Prosecutors’ Resource uses the term “elder abuse,” but some jurisdictions categorize these cases as those involving “vulnerable, dependent, or impaired” adults.6 Individual jurisdictions define elder abuse quite differently; some do not have a specific crime of elder abuse, while others consider all crimes against elders to be “elder abuse,”  irrespective of the relationship between victim and suspect.
The following forms of abuse will be addressed throughout this Resource:
• Physical abuse
• Sexual abuse
4 Marie Therese Connolly, Bonnie Brandl & Risa Breckman, The Elder Justice Roadmap: A Stakeholder Initiative to Respond to an Emerging Health, Justice, Financial and Social Crisis 3 (2013), https://www.justice.gov/file/852856/download [hereinafter
Elder Justice Roadmap]. The Roadmap definition does not define a specific age for when a person becomes “elderly.” Federal law, however, uses several different ages for “elder” status; for example, The Older Americans Act uses age 60; Social Security uses age 65; the Office on Violence Against Women’s Later Life grants program uses age 50. 42 U.S.C.A. § 3002; 42 U.S.C.A. § 1396d; Grant Programs, Department of Justice,  https://www.justice.gov/ovw/grant-programs (last visited Aug. 10, 2016). United States jurisdictions and tribes use a variety of ages for their laws as well, and still some jurisdictions do not use an age-based definition at all for crimes and reporting laws. Instead, these jurisdictions use a “vulnerable adult” standard for all adults age 18 and older. Vulnerable adult (also called at-risk; dependent, and impaired adult)
statutes typically apply when the person has a significant developmental, cognitive, or physical disability which affects the person’s ability to meet basic needs and/or protect legal rights. Still others may require age 60 or older and vulnerability. See, e.g., N.Y. Penal Law § 260.31; Wash. Rev. Code Ann. § 9A.44.010; Tenn. Code Ann. § 39-14-111.
5 Elder Justice Roadmap, supra note 4. This Roadmap definition is not a legal definition but a framework for understanding and differentiating elder abuse from all crimes committed against older persons.
6 Definitions vary across jurisdictions and prosecutors should review statutes in their jurisdiction. See, e.g., Ala.Code § 13A-6-191, Conn. Gen. Stat. Ann. § 53a-320, Fl. Stat. Ann. 825.101, 720 Ill. Comp. Stat. Ann. 5/17-56 (defining elderly, elder, or older as person/adult as someone who is 60 years of age or older); Cal. Penal Code § 11174.4, Ga. Code Ann. § 16-5-100, N.C. Gen. Stat. Ann. § 14-32.3, Tex. Penal Code Ann.
§ 22.04 (defining elderly, elder, or older as person/adult as someone who is 65 years of age or older); Alaska Stat. § 11.51.220, D.C. Code
§ 22-932, Idaho Code Ann. § 18-1505, Minn. Stat. Ann. 609.232, Wash. Rev. Code Ann. § 609.232 (defining vulnerable adult, generally, as someone who is 18 years or older and who, because of a physical or mental impairment, requires assistance). Prosecutors should also look to mental condition, emotional frailty/stability, physical status, financial situation and level of dependence, access to medical care, living situation, provider of food and daily needs, etc.
Current as of April 2017
6
The Prosecutors’ Resource
© 2017 AEquitas. All Rights Reserved.
1100 H Street NW, Suite 310, Washington, DC 20005
• Emotional/psychological abuse
• Neglect
• Abandonment
• Financial exploitation
Because of the complexity and challenges involved in financial exploitation, those cases will be discussed in more detail in the next section as well as throughout this Resource. Domestic abuse in later life frequently occurs and may incorporate all of the forms of abuse listed above. It will be discussed throughout this Resource. Prosecutors should remember that elder abuse can be perpetrated by an intimate partner, family member, or third party.
1. Financial Exploitation
Financial exploitation, also referred to as financial abuse, is defined as the “illegal or improper use of an elder’s funds, property, or assets.”7 It includes acts or a taking for which the victim is unable to give legal consent or of which the victim is unaware; abuse of a fiduciary relationship; and situations in which a victim’s consent is the result of fraud or deceit, coercion, threats or violence, manipulation, subterfuge, duress, or undue influence.8 Financial exploitation typically includes a process consisting of a series of events rather than a single incident. When there is not an existing
relationship of trust between the victim and suspect, there may be a period of “grooming” prior to the taking (e.g., “sweetheart scams”). Other forms of abuse may include specific methods used (e.g., use of physical abuse to accomplish
the taking or obtaining of the victim’s “consent”) or outcomes (e.g., caregiver takes victim’s money and neglects victim by not providing needed medications or medical care). Financial abuse frequently co-occurs with other forms of elder abuse, making it critical to screen for other crimes and forms of elder abuse.
Jurisdictions vary considerably in how they criminalize financial exploitation crimes. Some states have enacted specific financial exploitation crimes for acts against elder or vulnerable adults.9 Other states have created sentence enhancements or aggravators that increase sentences when financial crimes are committed against elders and/or
vulnerable adults.10 Whether special crimes or enhancements have been enacted, financial exploitation crimes can usually be prosecuted under a state’s various theft crimes.11
Financial exploitation is the most common form of elder abuse12 and can involve many kinds of conduct committed by a wide array of offenders. The United States Government Accountability Office has suggested the categories in Table 1 to illustrate the breadth of financial abuse.13
7 Types of Abuse, National Center on Elder Abuse, https://ncea.acl.gov/FAQ/abusetypes.html (last visited Aug. 3, 2016).
8 Candace J. Heisler, Elder Abuse, in Victims of Crime 161 (R. C. Davis, A.J. Lurigio, & S. Herman eds., 2013).
9 See, e.g., Ala. Code Ann. § 13A-6-195; Idaho Code Ann. § 18-1505; 720 Ill. Comp. Stat. Ann. 5/17-56.
10 See, e.g., Ariz. Rev. Stat. Ann. § 13-702; Nev. Rev. Stat. § 193.167; see also Carolyn Dessin, Financial Abuse of the Elderly: Is the Solution a Problem?
34 McGeorge L. Rev. 267, 289 (Winter 2003).
11 Margaret M. Landrey& Monique C.M. Leahy, Proof of Elder Abuse in Civil and Criminal Actions, 118 Am. Jur. Proof of Facts 3d 297, §18 (Aug. 2016).
12 Shelly L. Jackson & Thomas L. Hafemeister, University of Virginia, Financial Abuse of Elderly People vs. Other Forms of Elder Abuse: Assessing Their Dynamics, Risk Factors, and Society’s Response (Aug. 2010), https://www.ncjrs.gov/pdffiles1/nij/grants/233613.pdf.
13 U.S. Government Accountability Office National Strategy Needed to Effectively Combat Elder Financial Exploitation (Nov. 2012), http://www.gao.gov/assets/660/650074.pdf. This Resource primarily focuses on the first type of offender: family members, friends, in-home caregivers, legal guardians, representatives, payees, etc. For additional information on financial abuse committed by financial service providers
and strangers, please see Appendix C. Additional Resources.
Current as of April 2017
7
The Prosecutors’ Resource
© 2017 AEquitas. All Rights Reserved.
1100 H Street NW, Suite 310, Washington, DC 20005
TABLE 1. United States Government Accountability Office, Examples

From Joanne;

Very interesting the article does not talk about probate court or probate court abuse, abuse by lawyers stealing from the elderly, making up false allegations in court to put false money in the estate; allowing the elderly to be drugged illegally with psychotropic meds in nursing homes, etc.

From Ken:

On Friday, November 3, 2017, 7:16:53 PM CDT, kenneth ditkowsky <kenditkowsky@yahoo.com> wrote:
What is being done to the elderly as a matter of course is that once the miscreants get their hands on them, they are doped up, isolated and denied even the basic human rights as their assets are stolen.
Rape is a terrible crime.   It used to carry the death penalty as it was so dehumanizing, however, *****.   Now it has become a akin to a ‘social disease’ and a Harvey Weinstein et al can get away with it for years, and then *****.    The dehumanizing of the elderly for the profit of the cadre of nursing home operators is deplorable, but as so many of the criminals are part of the POLITICAL and JUDICIAL ELITE hardly a ripple of outrage is heard. Remember how reluctant the Sun-times and the Tribune were to report the billion dollar medicare theft of Philip Esformes.
The same newspapers harp day after day concerning some silly statement that a politician utters and for days carried stories about some drunk 18 year old who wandered into a freezer at a local hotel.   The theft of  BILLION DOLLARS of Medicare funds was ****!   Seth Gillman’s Medicare hospice thefts were also barely mentioned, and there was no mention of the attempted intimidation by the IARDC when it became a rumor on the ‘street’ that Gillman was co-cooperating with the FBI.  The obvious attempt to silence him apparently was unimportant – only a few ELDERLY LIVES were at stake!
On Friday, November 3, 2017, 6:26:37 PM CDT, jdit@aol.com <jdit@aol.com> wrote:
Your mother taught you that the best place to hide something is on the center of the dining room table!   Years ago when I complained about the touchy behavior of one of the few men in an aerobics class, (in the ninth decade of his life) , you commented, the dirty old man was once the dirty young man. The clergy have been part of the harrassment and rape culture, as well as the people the clergy loves to excoriate!

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