Friday, April 18, 2014

Older Adult Protective Service Options: When Even Court Orders Are Not Enough

My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad.  A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney.  The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA.  The conviction was affirmed.

On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft.  The broadly worded POA was executed by the mother in 2006 when everyone was healthy.  The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility.  The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility. 

It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role.  For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts. 

Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009.  Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals.  And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.

The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring.  Not easy -- not fun -- and, again, sad. 

http://lawprofessors.typepad.com/elder_law/2014/04/older-adult-protective-service-options-when-even-court-orders-are-not-enough-.html

Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, State Cases | Permalink

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