Elder abuse is a widespread and growing problem. The National Council On Aging (NCOA) reports that as many as 1 in 10 Americans over the age of 60 have fallen victim to some form of abuse, whether physical, emotional, or financial. Sadly, only about 1 in 14 victims ever actually report the abuse.
For obvious reasons, physical elder abuse poses the greatest danger to our seniors. It often requires immediate intervention by law enforcement and state and local protective agencies. If you or someone you know is suffering or has suffered serious physical abuse that may be life-threatening call 911. For non-life threatening situations, call your local police office’s non-emergency line or the Oregon Department of Human Service’s toll-free reporting line: 1-855-503-SAFE (7233).
Financial elder abuse can be almost as devastating. Every year, elders suffer $2.9 billion in losses due to scams, theft, and other financial fraud. The abuse takes many forms, including door-to-door sales scams, online phishing, and unauthorized bank withdrawals or property transfers by trusted family-members or professionals. For more information on how to recognize and respond to financial elder abuse (or physical elder abuse), check out Adult Abuse Prevention and Investigations webpage of the Oregon Department of Human Services: http://www.oregon.gov/DHS/SENIORS-DISABILITIES/ADULT-ABUSE/Pages/index.aspx.
In addition to reporting financial abuse to the proper authorities, an Oregon senior who has been financially abused can seek recourse in civil court under some of the toughest financial elder abuse statutes in the country. These laws, ORS 124.100 to 124.140, entitle anyone over 65 who has suffered a “wrongful taking” of money or property to an award of three times the economic and non-economic damages incurred, plus attorney’s fees, interest, and court costs (which include the costs associated with appointing a guardian for the litigation).
To prevail on a claim for financial elder abuse, the victim (the plaintiff) must prove that the perpetrator (the defendant) not only took money or property, but that the taking was “wrongful.” In the case of theft, there is no real dispute about whether that conduct is “wrongful.” But things get trickier in the case of property and bank account transfers, such as when a family member makes withdrawals from an elder’s bank account by presenting the bank with a valid power of attorney. Often, the defendant in such a case claims the taking was authorized by the plaintiff, or that the family member acted in the plaintiff’s best interests. Questions about the plaintiff’s mental faculties, or legal capacity, become central, as do questions about the relationship between the plaintiff and the defendant, as well as the defendant’s intentions and state of mind.
The statutes do not define the term “wrongful taking,” but Oregon’s appellate courts have offered guidance on what kind of conduct the legislature had in mind. In Church v. Woods, 190 Or App 112 (2003), the Oregon Court of Appeals held that a taking is “wrongful” based both on the defendant’s motives and the means by which property was taken. So, a defendant must carry out the taking either with an improper motive (i.e., with an intent to financially harm or cheat the elder plaintiff) or by improper means (i.e., such as by tricking the elder plaintiff into signing a power of attorney form and then emptying the elder’s bank account). In reality, these two separate concepts are just two alternative ways for the plaintiff to prove their case. If a plaintiff can’t convince a judge or jury that the defendant had evil in their heart (an improper motive), the plaintiff can still win by showing that the defendant acted improperly (improper means).
As you might expect, while Oregon’s financial elder abuse statutes provide victims with a powerful tool to obtain legal recourse, these cases are often complex and factually intensive. Plaintiffs and their families must also sometimes navigate difficult issues involving mental capacity and the appointment of a guardian. Victims or their loved ones who suspect financial elder abuse should contact experienced legal counsel at the earliest possible stage to have their case evaluated and their options fully explored.