Know Your Legal Rights: Protect Yourself from Elder Abuse and

Financial ExploitationLos Angeles County Workforce

Development, Aging and Community Services

First Annual Older Adult SummitApril 12, 2017

Bet Tzedek Legal Services

Bet Tzedek provides free, expert legal advice and representation to low-income residents of Los Angeles County. Each year our lawyers and paralegals assist more than 20,000 people of every racial, religious, and ethnic background through direct legal service, impact litigation, and legislative advocacy.

Bet Tzedek Legal ServicesOur staff addresses the following legal issues:

• Elder law

• Holocaust survivors’ services

• Employment rights and human trafficking

• Government benefits

• Guardianships

• Conservatorships

Bet Tzedek Legal Services - Elder Law• As an organization, Bet Tzedek has impacted the lives of over

350,000 elders in need.

• We serve as the exclusive free legal services provider to low-income elders in Los Angeles under the Federal Older Americans Act.

• Bet Tzedek established the first legal self-help center for seniors and caregivers at the Los Angeles County Courthouse.

• We regularly provide free legal consultations at more than 30 senior centers throughout Los Angeles County.

• We have several areas of special focus in our Elder Rights practice, including Conservatorships, Elder Abuse Restraining Orders, Real Estate and Consumer Fraud Against Seniors, Family Caregiver Rights, IHSS, and Medi-Cal.

Overview• Discuss forms of elder abuse

• Discuss legal remedies

– You can stop elder abuse through civil court or criminal court. Bet Tzedek focuses on civil remedies.

• Helpful prevention tips

Statistics• There are over 1 million adults age 65+ in Los

Angeles County

• 1 in 10 older adults report emotional, physical, or sexual mistreatment, or neglect (Acierno et al., 2010)

• The New York State Elder Abuse Prevalence Study found that for every case known to programs and agencies, 24 were unreported

Factors that Contribute to Abuse• May lack the cognitive ability to recognize abuse and/or their

rights to safety and protection

• Are often reluctant to report or prosecute

• Dependence on others to assist with activities of daily living and personal care; fear of retribution

• Communication or physical impairments which may limit ability to verbally or physically defend against a perpetrator and disclose abuse

• Lack of experience and socialization which encourages compliance rather than self-advocacy

• Steady income and reliance on others to manage money

Elder Abuse and Dependent Adult Civil Protection Act

California’s Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) allows a court to issue an order protecting an elder or dependent adult from further abuse by an individual. In order to obtain an Elder Abuse Restraining Order, the person requesting the order must be an elder or dependent adult and must have suffered abuse.

• An “Elder” is one who is 65 years of age or older.

• A “Dependent Adult” is a person between the ages of 18 and 64 who has physical or mental limitations that restrict the person’s ability to carry out normal activities or to protect his or her rights.

Types of Abuse EADACPA Can Protect Against

• Physical abuse• Neglect and self-neglect• Financial abuse• Undue Influence• Abandonment• Isolation• Other treatment resulting in physical harm, pain, or

mental suffering• Deprivation by a care custodian of goods or services

that are necessary to avoid physical harm or mental suffering

(California Welfare and Institutions Code Section 15600)

Physical Abuse• Assault

• Battery

• Sexual assault

• Rape

• Deprivation of food or water

• Physical or chemical restraints as punishment or for convenience (without doctor’s order or beyond authority given)

• Examples: hitting, giving individual too many sleeping pills (overmedication), blocking entrance to kitchen, bedroom, bathroom

Neglect• Neglect: when a person who is in charge of

elder’s care fails to provide assistance with elder’s personal hygiene, medical care; does not provide food, clothing, or shelter; fails to provide a safe environment or protect from safety hazards

• Self-Neglect: failure of individual to care for him/herself; often due to poor cognitive functioning, substance abuse, or poor health

Financial AbuseWhen a person or entity takes the property of the elder for wrongful use with the intent to defraud or takes property by undue influence. Financial abuse is one of the fastest growing forms of abuse targeting elders. According to the National Adult Protective Services Association, 1 in 20 older adults reports some form of financial mistreatment. However, it occurs much more frequently than it is reported because only 1 in 44 cases of financial exploitation are reported to law enforcement officials.

• Signing and cashing checks without permission• Unauthorized credit card use• ATM abuse• Coercing or deceiving someone into signing a financial document like a

contract, will, or power of attorney• Real estate transactions like transfer of title, refinancing• Identity theft• Home repair and unsolicited work• Taking out loans or establishing credit accounts in someone else’s name

Undue Influence

Excessive persuasion over the elder by overcoming the elder’s free will, resulting in an unfair result. Takes into account the vulnerability of the elder, the position of authority of the abuser, the tactics used by the abuser, and the result of the abuser’s act.• Caregiver uses position of authority to take advantage of the

elder to obtain money, and the elder succumbs to the undue influence and gives the abuser the money.

IsolationIntentionally preventing the dependent adult or elder from receiving mail or telephone calls; telling the guest or caller that the victim is not available with the intent to isolate; physically restraining victim to prevent him/her from having contact with others

• Elder’s new spouse does not allow elder’s son to visit

Mental SufferingFear, agitation, confusion, severe depression, or other serious forms of emotional distress caused by intimidating behavior, threats, harassment, deception, made with intent to cause the dependent adult or elder to become agitated, confused, depressed, or frightened

• Abuser calls the elder “stupid” or makes fun of elder’s memory impairments.

• “If you kick me out, then I’ll put you in a nursing home.”

Who Can Request a Restraining Order

• The individual must be an elder or dependent adult who has suffered abuse as described in previous slides.

• A request may also be brought on behalf of the elder or dependent adult by a conservator, trustee, agent under power of attorney, Adult Protective Services, or one appointed as a guardian ad litem.

Effect of the Restraining OrderAn elder or dependent adult can request any of the following three orders:

1. Conduct Order: the abuser cannot intimidate, attack, threaten, or harass the elder or destroy the elder’s personal property.

2. Stay Away Order: the abuser must stay away a specified distance from the elder, elder’s home, work, or vehicle.

3. Move Out Order: abuser must leave elder’s home. (Abuser cannot be on title and elder must be in fear of imminent harm.)

Getting an EAROWhen people ask for an elder or dependent adult abuse restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:

1. The person wanting protection (or a court-approved guardian or conservator of the protected person) files court forms asking for the restraining order. There is NO fee to file.

2. The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.

(continued)

Getting an EARO (continued)3. If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until the next court date. That date will be on the paperwork. These temporary orders may:

- Order the restrained person to stay away from the protected person (and other protected people);

- Order the restrained person not to have any contact with the protected person (and other protected people); and

- Order the restrained person to leave the home if he or she lives with the protected person.

(continued)

Getting an EARO (continued)4. The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the next court date. This means that someone 18 or older who is not involved in the case must hand-deliver a copy of all the papers to the restrained person.5. The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story.6. Both sides go to the court hearing.

- If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will NOT be a restraining order.- If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.

7. At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for up to 5 years.

Bet Tzedek EARO ClinicWhere: Restraining Order Center – Room 245

Stanley Mosk Courthouse

111 N. Hill Street

Los Angeles, CA 90012

When: anticipated opening in late summer 2017

Email: eaclinic@bettzedek.org

Prevention Tips• Avoid isolation, which can lead to loneliness, sadness,

and depression and increase the possibility of abuse or neglect, even self-neglect.

• Keep in touch with family members.

• Stay social and stay active. Keep in touch with old friends and make new ones.

• Consider volunteering in the community or becoming a surrogate grandparent or mentor to a child.

• Participate in religious and/or community activities.

• Don’t live with a person who has a history of violent or abusive behavior.

(continued)

Prevention Tips (continued)• Beware of family members or caregivers who

might have a need for financial assistance or who have substance abuse issues.

• Beware of people who ask you to change your will or add their names to your bank accounts or property.

• Keep your legal and financial documents in a safe place. Consider executing legal documents, such as a will, trust, and/or a durable power of attorney for finances and health care.

• Safeguard your personal information and passwords.

Real Estate and Consumer Fraud Overview

Real Estate Fraud

• Title Fraud cases, such as forgeries

• Tools to address and prevent Real Estate Fraud

Consumer Fraud

• Home Repair Scams, such as PACE cases

• Medicare and Health Insurance Scams

• Reverse Mortgage Fraud

• Telemarketing Fraud

Real Estate Fraud Against Senior Homeowners

• There are many types of real estate fraud schemes.

• Often, family or caregivers are the abusers.

• The EADACPA helps protect seniors and provides remedies to victims.

Real Estate Title Fraud

• Scammer may forge and record a deed to obtain title. Scammer can then take out a loan against the property and keep the money.

• Scammer may misrepresent documents to an elderly homeowner to obtain a signature that transfers title to real property.

(continued)

Real Estate Title Fraud (continued)

• Scammer may obtain title through abuse of a power of attorney, particularly one that grants general or unlimited powers to the agent.

• Scammer may also obtain title through abuse of a trust document. (A trust document places real property in a trust for the benefit of whomever is named.)

Tools to Address Title Fraud

• File a report with law enforcement.

• Contact Adult Protective Services.

• Contact title insurance company if there is a policy.

• Seek legal representation.

Act quickly!

Prevention Tips

• Get everything in writing! Never accept a verbal promise or assurance if money or property is involved. Rarely will you benefit from mistakes or misunderstandings.

• Don’t sign anything without carefully reading it and never feel pressured to sign before you are absolutely ready to live with your decision. Take your time!

• Remember, it took a lifetime of work and sacrifice to build up your estate and you can lose it all with one stroke of a pen.

Home Repair Scams

• Home repair scams are generally perpetrated by “travelers” or groups of people who travel from town to town running their con, usually concerning roofing, driveway paving, or other repairs.

• The homeowner is warned of dire consequences for failing to fix whatever problem the scammers are fixing.

• Prices are proposed, sometimes at a premium.

• They find the elderly particularly susceptible to warnings that they are not properly maintaining their home.

• All, or a large part of the cost, is required to be paid up front.

(continued)

Home Repair Scams (continued)

• If the victim is lucky, the perps walk away with the money and are not seen again.

• More often, a slip-shod job is begun, and work is abandoned as soon as substantial payment is made.

• Victims are left with homes which are in worse shape than when the “repairs” began, and must then pay a contractor to “repair the repair.”

• In some cases, part way through the project, scammer demands additional money to complete the project.

• Beware of HERO PACE Program!!!!

Home Repair Do’s and Don’ts

Do:• Get other bids from established businesses; if the

deal is too good to be true, it may very well be a scam.

• Be suspicious if someone comes to your door or calls you with an offer to do a home improvement.

• Obtain the contractor’s license number and contact the Contractors State License Board, Better Business Bureau or Chamber of Commerce to verify if the person is licensed and reputable.

• Insist on and check out referrals.

Home Repair Do’s and Don’ts

Don’t:

• Rush. Beware! Rarely is there a reason for an offer that is good “for today only.”

• Accept work from an unlicensed contactor.

• Allow work to be done without a contract that, among other things, specifies materials used, a completion date, and fair payment schedule that pays for work as completed.

• Pay a down payment before work begins that exceeds $1,000 or 10 percent of the contract price, whichever is less.

Medicare and Health Insurance Scams• Medicare and Health Insurance Scams can be

conducted in a variety of ways. Usually, a health care provider is seeking to provide some form of medical care, such as provision of durable medical equipment or ambulance rides.

• Advertisements prompt individuals to obtain equipment, such as a scooter, without any cost to themselves.

• There is little or no medical evaluation for these services.

• Once the perps have the victim’s Medicare card or insurance information, along with their PII (Personal Identity Information), they use it to file other claims.

(continued)

Medicare and Health Insurance Scams (continued)• Sometimes “legitimate” providers conduct these schemes:

– Pharmacies may refill prescriptions even when they are not ordered or picked up by customers;

– Podiatrists may bill for every patient in a nursing home, even though not all are seen;

– Medical transport companies may bill for ambulance rides, even when the transport was a non-emergency doctor’s appointment.

• Another scheme is one involving counterfeit prescription drugs. As drug prices rise, more seniors are looking for ways to lower their prescription drug costs. This makes them vulnerable to fraudsters selling counterfeits which can be ineffective or even dangerous.

Tips to Avoid Medicare and Health Insurance Scams

• Question bills or notices for services that you do not understand.

• Report providers and companies that have suspicious billing practices.

• Never give your social security number, Medicare or Medi-Cal number to unauthorized providers or anyone offering “free” health care services or equipment.

Reverse Mortgage Fraud• Reverse mortgages can be helpful for senior homeowners because

they allow you to receive a lump sum or monthly payments based on the equity in your home – that’s the market value of your home minus the outstanding balance on any existing mortgages.

• Reverse mortgages can be legitimate transactions, but are subject to abuse.

• Generally, you do not have to repay the reverse mortgage during your lifetime and get to stay in your home. You keep the title.

• The lender gets a security interest in your home and collects when you die or move out. The lender cannot make a claim against your other assets.

• Costs and terms vary. You will also face a choice of how to take your money: as a lump sum, in monthly payments, or as a line of credit.

• While the most common reverse mortgages -- Home Equity Conversion Mortgages (HECM) -- are insured by the Federal Housing Administration (FHA), other products, with different terms and legal protections, are also on the market.

(continued)

Reverse Mortgage Fraud (continued)• The homeowner is still responsible for taxes

and insurance payments. If you fail to pay either, the reverse mortgage lender can foreclose on your home.

• Unscrupulous individuals propose what they call “unsecured” reverse mortgages, sometimes even trying to relocate the senior to another residence in exchange for the senior signing over his or her home to them.

Tips to Avoid Reverse Mortgage FraudThe Huffington Post provides the following tips:• Be sure to discuss origination fees, mortgage

insurance premiums, and other associated closing costs with your lender so there aren’t any surprises.

• The loan balance will increase over time. Since reverse mortgage loans do not require that you make any payments, the principal balance won’t decrease over time. Instead, the interest will be added to the outstanding balance each month, which means that your balance will increase as time passes.

(continued)

Tips to Avoid Reverse Mortgage Fraud(continued)• While reverse mortgages may have fixed interest

rates, they can also have variable interest rates. Different lenders offer different options.

• You only are required to repay the value of the home. Many reverse mortgages come with what’s called a non-recourse clause, meaning that you are only liable for the value of the home, not the balance due. This helps protect your estate from owing money after the home is sold, if the value has decreased.

(continued)

Tips to Avoid Reverse Mortgage Fraud(continued)• Unlike some forms of conventional home

loans, interest fees from a reverse mortgage are not tax-deductible.

• Use a lender that specializes in issuing reverse mortgage loans.

Telemarketing Fraud• Because seniors are home more, may have

limited mobility, and generally still have landlines, seniors are often targets in telemarketing fraud. In fact, lists of seniors who have proven suggestible are valuable commodities. – Callers attempt to sell items to seniors, such as home

repairs or upgrades, cookware, etc.– Once one item is purchased, the fraudsters attempt to

“up sell” the victim additional items, often with time pressure such as the requirement that they purchase it immediately.

– There is no paper trail and no face-to-face contact, making the scheme very hard to combat.

(continued)

Telemarketing Fraud (continued)• Sometimes the purchased items exist, but

more often the entire thing is a fraud.

• Sometimes the fraud is conducted through a variety of communication media, including email, personal contact, and mail, as well as the telephone.

• As the “Boomers” retire, email will likely become a more prevalent form of communication in financial fraud against the elderly.

Tips to Prevent Telemarketing Fraud• Recognize that the telephone is the gateway to

financial abuse.

• Hang up on any phone solicitations and throw away mail solicitations.

• Just say no to any and all prize offers, travel packages, get-rich-quick schemes, high interest investments, and pleas from unknown people, companies, and charitable or religious organizations.

• Never give your social security number, credit card number, or personal information over the phone, unless you placed the call and are familiar with the business.

Contact Information

Juan Carlos Moran, Esq.

Elder Justice AmeriCorps Fellow

jmoran@bettzedek.org

(323) 648-4758

Stephanie Koguchi

Elder Justice AmeriCorps Fellow

skoguchi@bettzedek.org(323) 648-4756