ELDER ABUSE:
Getting Legal Help
Introduction to Part
II
Legal Remedies for Victims
of Physical Abuse
Legal Remedies for Victims
of Financial Exploitation
Important Reminders
INTRODUCTION TO
PART II
Part I of this article addressed the hidden problem
of elder physical abuse and financial exploitation and outlined the
legal services provided to victims by Legal Services for the Elderly
(LSE). This article explores civil legal remedies available to victims
and addresses many common concerns of seniors who need legal assistance
for elder abuse.
As indicated previously, many seniors resist
seeking legal help for physical abuse or financial exploitation because
they are abused at the hands of family members. The fact that family
members are often perpetrators of the abuse heightens the fear and shame
seniors feel when they are subjected to mistreatment. This, in turn,
makes seniors less likely to share their story with an attorney. Many
seniors are concerned that by seeking legal help they will initiate
an unwanted legal battle with a loved one at a time of life when they
want simply to be at peace and enjoy their lives. Despite the fact of
the abuse, senior victims typically do not want conflict with the person
who has harmed them. Instead they seek practical remedies which will
enable them become financially solvent or to live free of the abuse.
The greatest challenge for an attorney representing a senior in these
circumstances is to obtain an effective remedy for the client without
an unpleasant legal battle. For this reason, negotiation, rather than
litigation is a common approach used by Legal Services for the Elderly
attorneys seeking civil relief, particularly in the context of financial
exploitation.
Senior victims of financial exploitation who
seek legal help are often concerned that they will get the perpetrator
in trouble with the law. Victims frequently indicate that they do not
want the person who has taken their money or property to "go to jail."
An attorney will not pursue a criminal referral - or any other action-
without a client's express consent. It is important in this context
to distinguish between civil law and criminal law. In the State of Maine,
crimes are prosecuted exclusively by District Attorneys and the Office
of the Attorney General. Private law firms such as Legal Services for
the Elderly can only obtain civil remedies for clients. Moreover, attorneys
are prohibited by the Maine Bar Rules from threatening criminal action
in order to gain an advantage in a civil case. Therefore only in very
rare cases will Legal Services for the Elderly refer a case of financial
exploitation to local police or a District Attorney for prosecution,
and then only at the express request of the client. In financial exploitation
cases, the goals of civil representation are primarily recovery of money
or property taken, rather than punishment.
LEGAL REMEDIES FOR
VICTIMS OF PHYSICAL ABUSE
Maine's Protection from
Abuse Law
In Maine, victims of physical abuse may seek
relief under Maine's Protection From Abuse statute. A primary purpose
of the law (which applies to people of all ages) is to allow family
and household members who are victims of domestic abuse to obtain fast
and effective protection against further abuse in the form of a court
order. To obtain a court order for protection a person must file a complaint
with the District Court of the division in which either the plaintiff
or the defendant resides. A hearing on the complaint will be held within
21 days of the filing of the complaint, although a victim may obtain
a temporary order for relief sooner if the court determines that there
is immediate danger to the plaintiff.
Abuse defined:
Maine's Protection from Abuse statute defines
abuse to include the following acts between "family and household members:"
- Attempting to cause or causing bodily injury
or offensive physical contact, including sexual assault.
- Attempting to place or placing another in
fear of bodily injury through any course of conduct including threatening,
harassing or tormenting behavior.
- Compelling a person by force, threat of force
or intimidation to engage in conduct from which the person has a right
to abstain or to abstain from conduct in which the person has a right
to engage.
- knowingly restricting substantially the movements
of another person without that person's consent or other lawful authority.
- Communicating to a person a threat to commit,
or to cause to be committed, a crime of violence dangerous to human
life against the person to whom the communication is made or another.
Significantly, this law applies only to abuse
between "family and household members," which the law defines to include
spouses or former spouses, individuals presently or formerly living
together as spouses, natural parents of the same child, adult household
members related by consanguinity or affinity, individuals presently
or formerly living together or individuals who are or were sexual partners.
Relief contained in court
orders for protection from abuse:
Among other things, court orders for protection
from abuse may do the following:
- direct the defendant to refrain from threatening,
assaulting, molesting, harassing, attacking or otherwise abusing plaintiff.
- direct the defendant to refrain from entering
the plaintiffs residence.
- order a division of personal property.
- direct defendant not to possess a firearm.
- direct defendant not to follow plaintiff
- require defendant to receive counseling
- order payment of monetary compensation to
the abused person for losses suffered as a result of the abuse.
Maine's Protection from Abuse law represents
the most common means of obtaining relief from physical abuse in Maine.
LEGAL REMEDIES FOR
VICTIMS OF FINANCIAL EXPLOITATION
Theories of recovery
available to victims of financial exploitation.
Unlike Maine's Protection from Abuse law, there
is not one comprehensive law which provides relief to victims of financial
exploitation. "Financial exploitation" is a term used here to mean illegal
or improper use of a senior citizen's money or property for another
person's profit or advantage. Depending upon the facts of a given case,
there are several possible legal theories or claims one can bring to
obtain relief for financial exploitation. Although all of these theories
can not be addressed completely in the scope of this article, a few
examples include fraud, fraudulent misrepresentation, breach of an express
or implied contract, or contractual claim of undue influence. Senior
victims of financial exploitation may also seek relief under Maine's
Improvident Transfer of Title law. Relief under these theories varies,
and may include an order that the perpetrator pay money to compensate
the victim for her losses or that property taken be returned or placed
in trust.
Understanding
and stopping financial exploitation
Seniors who seek legal help for financial exploitation
often do not understand or appreciate what has happened to them. In
many cases, seniors are taken advantage of because they are vulnerable
or frail, and not fully capable of defending themselves. A common example
of this is a disabled nursing home resident who seeks legal help because
a family member entrusted with her financial affairs, has failed to
pay her bills at the facility where she resides. Seniors in such circumstances
are often worried and confused because they do not know what has happened
to their money. The first step an attorney may take in such a case is
to investigate the management of the seniors' finances. This usually
requires obtaining bank and other financial records and contacting the
Social Security Administration if Social Security checks are involved.
If the investigation uncovers improper management of a senior's funds,
an attorney's first priority is to stop the exploitation. Halting exploitation
in such a case may involve revocation of a financial power of attorney,
appointment of a new power of attorney, restructuring of bank accounts
and redirecting Social Security checks.
Recovery of property
taken through financial exploitation
Possibly the most difficult aspect of financial
exploitation cases involving the elderly is recovery of property or
money taken. Recovery may be difficult for many reasons, one of which
is that the money or property is frequently squandered by the wrongdoer.
Even where the facts suggest a high probability of victory in court,
the hard work of obtaining a money judgment may not be worth the effort
if there is no possibility of collecting on the debt. For many seniors
litigation, particularly against a family member, is not worth any price.
The attorney provides the client with all of her options so that she
can weigh the benefits and burdens and reach the best decision for her.
Many seniors choose to have an attorney pursue settlement negotiations,
even if it means they will likely get a smaller recovery.
IMPORTANT REMINDERS
FOR THOSE SEEKING LEGAL HELP FOR ELDER ABUSE:
For most people, simply understanding what has
happened to them and knowing their legal options provides enormous peace
of mind, regardless of the legal avenue (if any) they choose to pursue.
All services provided by
Legal Services for the Elderly are free and completely confidential.
There are no financial guidelines to qualify for assistance. For more
information about Legal Services for the Elderly or for legal assistance,
please call 775-6302 or 1 (800) 750-5353.
