LARRY O'DELL,Associated Press
RICHMOND, Va. (AP) — Advocates of tougher laws against financial exploitation of the elderly and mentally incapacitated will press their case in the General Assembly again in 2013, this time with the imprimatur of the Virginia State Crime Commission.
Legislation dealing with the issue has failed several years in a row as lawmakers struggled to protect the vulnerable without making criminals out of well-intentioned caregivers, family members and service providers who might unwittingly enrich themselves at the expense of a person lacking the mental capacity to make a rational business decision.
Eleven bills introduced in the 2012 session failed to make it to the governor's desk. Del. Robert B. Bell, chairman of the crime commission, asked the organization's staff to review the issue and make recommendations for the session that begins in January. The commission received the staff's report in November and has since endorsed a proposal to create a new statute specifically targeting financial crimes against incapacitated adults.
"The goal would be that if you knew someone was mentally incapacitated and you used that mental incapacity to take something from them, that transaction might be fraud," said Bell, R-Albemarle. "If you didn't know about the incapacity, it wouldn't apply."
Virginia prosecutors historically have relied on broader larceny, fraud, embezzlement and check forgery laws to go after those who rip off mentally incapacitated victims. Those laws have not been sufficient, however, when alleged perpetrators demonstrate they obtained consent for the property transfer.
Michael Huberman, a Henrico County deputy commonwealth's attorney, said he has run into that problem a couple of times recently. In one case, a female acquaintance of an elderly man with Alzheimer's disease accompanied him to the bank and had him withdraw money for a shopping spree. She then put him up in a hotel overnight, picked him up the next morning and took him to a jewelry store, where she told a sales associate that she and the man were getting married. The man stood by helplessly while she bought a ring with his money.
Huberman said the woman and her victim were at a Social Security office preparing to register a change of address so his checks could be sent to her when police finally caught up with them.
"We couldn't prove financial exploitation because the victim was there and consented to these transactions," Huberman said. The woman was only convicted of a misdemeanor neglect charge for abandoning the man at the hotel, but the judge — appalled by the circumstances — took the unusual step of giving her jail time for a first offense, Huberman said.
"It's definitely a growing problem," Huberman said. "It's only going to get worse, especially with the baby boomers and the tight economy."
Data collected by the Department of Criminal Justice Services shows that between 2001 and 2007, overall financial crimes in the state increased 8.6 percent; for victims 65 or older, the increase was 18 percent. The crime commission says another 2010 study of the financial exploitation of 54 Virginia seniors shows the average loss was nearly $88,000.
The state Department of Social Services also is seeing an increase in reports of suspected abuse, neglect or exploitation of seniors and mentally incapacitated adults. The number of substantiated reports of financial exploitation increased from 756 in 2009 to 1,036 last year, adult services program manager Gail Nardi said.
"The majority of the cases involve a caregiver or family member, someone a person should be able to trust," Nardi said. "We've had cases where adult children have literally stolen the house out from under the parent. It's harrowing, and prosecutors find it difficult to gather enough evidence to prosecute successfully."
Officials say the statistics probably do not reflect the true scope of a problem widely believed to be underreported.
"Often a mother wants to protect a child or grandchild who is exploiting her," Nardi said.
While the statute backed by the crime commission is intended largely to protect the aged, a finding that the victim is mentally incapacitated is key. For example, a woman accepting gifts from an elderly but competent suitor would not be prosecuted even if the man's family thought he was being victimized.
"The problem we've got is catching the people who need catching without catching the people we don't intend to get," said Michael Doucette of Lynchburg, president of the Virginia Commonwealth's Attorneys Association. "We don't want to draft a bill so broad that we get five zillion phone calls."
But advocates for the elderly agree that something must be done to curb the abuse.
"We're trying to raise awareness about it, but we also think penalties should be harsher and there should be a specific law," said David DeBiasi, state advocacy director for AARP Virginia.
Kathy Pryor, who heads the elder law practice at the Virginia Poverty Law Center, said the crime commission-backed legislation might not be worded exactly the way she wants. But, she added,"it will give us something to build on in future years."
While the crime commission's support does not guarantee success, Doucette said it will give lawmakers a comfort level that is lacking when they try to hash out precise language during a hectic legislative session.