Personal Injury Claims Of Financial Exploitation Of The Elderly In Texas
For anyone who suspects that they may have been manipulated or deceived to their financial detriment, there may be a basis for filing a civil claim for injuries against the person who committed the wrongdoing. However, when that individual is at least 60 years old, then he or she may have special civil claims to advance as an elder under the law.
An older person who has claims of being financially exploited may pursue legal action based on a variety of legal bases under Texas law. In some situations, their loved ones or personal representatives may seek to institute a formal civil suit based upon one or more civil causes of action. Damages can include financial reimbursement, as well as other forms of injury including attorneys fees and court costs as well as punitive or exemplary damages in instances of egregious bad acts or gross negligence.
These claims will advance independently of any criminal investigations or prosecutions however, the evidence obtained by law enforcement may be available to support the elders injury claims and help to meet his or her burden of proof in the civil matter.
For more on instances where criminal prosecutions dovetail with civil injury causes of action, read:
Texas Elder Abuse Laws
While elder abuse is often physical in nature, it refers to any type of mistreatment that causes some sort of damages, such as injuries or financial loss. Under Texas law, abuse, neglect or exploitation of a child, senior or adult with disabilities must be reported by any Texas resident who witnesses it. If the report is made in good faith, the person who files the report will be immune from liability. In addition, their name will be kept confidential.
It is crime to not report abuse. Under Texas law, a person who knows about a situation involving abuse or neglect and does not report it can be charged with a Class B misdemeanor. False claims of elder abuse are forbidden and can also result in criminal penalties.
Elder Financial Exploitation: Breach Of Contract
If the circumstances of financial exploitation are based upon a written or oral contract entered into between the elder and the wrongdoer, then the elder can meet their burden of proof in a civil injury claim by establishing with admissible evidence that: there was a legal contract the elder complied with its terms the wrongdoer breached the agreement and there was a resulting harm to the elder.
Here, the elder need not prove any intent to do harm on the part of the wrongdoer the facts to establish a breach of contract case will look solely to the contract itself and its terms and conditions.
For instance, if the administration exceeded the terms of the nursing home contract with the elder in how finances were accessed or spent, then the elder may have a viable breach of contract case evidenced by elder financial exploitation.
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Elder Abuse State Laws And Elder Population
States with high proportions or numbers of older adults often create stricter and more expansive laws and regulations to protect the elderly from mistreatment. The penalties for elder abuse may also be harsher in these states.
According to the U.S. Census Bureau, 3 states with especially high elder populations are:
- Florida: Florida has the highest percentage of elderly residents in the United States, with residents over 64 years old making up 17.6% of the population. Learn more about Nursing Home Abuse Laws and Attorneys in Florida.
- Pennsylvania: With 15.6% of the population being 65 or older, Pennsylvania has the second-highest proportion of elderly residents.
- California: California has the largest number of elderly residents, with over 8 million people aged 60 and over calling it home. Learn more about Nursing Home Abuse Laws and Attorneys in California.
Work With An Experienced Local Lawyer In Texas
If you plan to file a lawsuit against your nursing home for abuse or neglect, seek the assistance of a qualified Texas attorney specializing in the rights of senior citizens. Nursing home abuse attorneys can help you collect the necessary information required, locate corroborating witnesses, draft the lawsuit, and move to trial if required.
Are you looking for an experienced Texas nursing home abuse attorney to help your family? We can even help you connect with an attorneyacross Texas state lines.
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Financial Exploitation Of Elderly: Criminal Acts And Civil Injury Claims
Posted on byMichael Lowe.
Financial exploitation of the elderly can involve many things. The National Institute on Aging explains that elder financial abuse occurs when money or belongings are stolen from an older adult. It can include forging checks, taking someone elses retirement or Social Security benefits, or using a persons credit cards and bank accounts without their permission. It also includes changing names on a will, bank account, life insurance policy, or title to a house without permission.
According to the NIA, financial exploitation involves any misuse, mismanagement, or manipulation of the elder persons property, belongings, or assets without their consent, under false pretense, or through intimidation or deceit.
Financial exploitation of older adults and taking financial advantage of the elderly is rising trend and growing problem in the United States. In October 2020, the Advisory Council for ERISA of the U.S. Department of Labor heard testimony from a representative of the American Institute of Certified Public Accountants Forensic and Litigation Services Fraud Task Force, who testified that t is estimated that 10% of elderly people in North America have already been victims of financial abuse with total reported yearly financial losses of over $2.9 billion.
Cornerstone Of Most Scams
Senior Texans are targeted everyday through e-mail, regular mail and the telephone. Nearly every scam is designed to trick you into sending money or providing your personal information.
The first way scammers do this is to get you to believe something good will happen to you if you do as they say. The other is by scaring you into believing something terrible has or will happen to you if you don’t do as they say. In either case, through kindness or bullying they try to get you to send them money or disclose your personal financial information.
Remember that no legitimate government agency, business or organization will make unsolicited contact with you and then ask you to provide your personal information. Nor will any legitimate prize give-away, government grant, lottery or sweepstakes require you to pay anything up front to claim your winnings.
Your best protection against scammers making unsolicited contact with you is to hang up and not respond to their attempts to steal your money or good name. Hang-up your phone, shred the correspondence, delete the email, or shut your door and call the police.
There are other ways seniors and others are targeted that you should be aware of. Please take a look at some of the links below to learn more.
Tech Support Scams
Advance Fee Fraud
Lotteries & Sweepstakes
Know the law about lotteries and sweepstakes in Texas. Remember you shouldnt have to pay a fee to win a prize. Click the link above to learn more.
Counterfeit Cashier’s Checks
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Injury To An Elderly Person
Injury to an Elderly Individual is grouped together in Texas Penal Code Chapter 22 with the other Assault crimes. However, Injury to an Elderly Person outlined in Texas Penal Code 22.04 is more complicated than the ordinary Assault crime. It is more complicated, more expansive, and penalizes a broader set of not only actions but inactions as well. It also carries harsher penalties. Like ordinary Assault, it is a crime for a person to take a deliberate action that causes an injury to someone else. In addition, an Injury to an Elderly offense penalizes a person for doing nothing, if that act of doing nothing resulted in an injury or illness to an elderly individual. When a person does nothing and an injury results, this is called an omission. For an omission to be a crime, the person who made the omission must have either been legally obligated to provide care, shelter, food, or medical care, or otherwise assumed the role of caretake.
Civil And Criminal Nursing Home Abuse Lawsuits
Civil court handles most nursing home abuse cases. However, there are times where victims can file both kinds of cases. For example, if a nursing home staff member pushes a victim who falls over and breaks a bone, that worker can be criminally liable. Later, they may face a suit in civil court for the same thing.
According to the Texas Judicial System, a case of elder abuse could wind up before a District or County Court depending on the severity of the offense. If you, or someone you know, has been the victim of elder abuse, you should immediately contact the proper authorities, as well as an experienced attorney in Texas.
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State Laws Protecting Against Elder Financial Abuse
Most laws protecting against older adult financial abuse exist at the state level. For example, California law prohibits anyone from taking or assisting in taking the real or personal property of seniors for wrongful purposes or with the intent to defraud.
California law also provides for treble damages, or the tripling of a damage award, in some instances of elder financial abuse. Other states have similar statutes protecting against older person’s financial abuse.
Itâs important to note that elder financial abuse can exist even where the victim has mental capacity. Most states recognize that undue influence or coercion can negate consent, even where an older individual is of sound mind.
What Does Negligence Mean
The lowest level of culpability for an Injury to an Elderly charge is criminal negligence. Negligence is generally something that gets litigated in civil law, when someone files a lawsuit against a person or a business. Criminal negligence is not a culpable mental state for Assault or Aggravated Assault, but for an Injury to an Elderly Person it is. Criminal negligence is similar to recklessness because it involves ignoring a risk of greater or lesser size. Negligence in the context of an Injury to an Elderly could involve something like a caretaker withholding medicine from someone because of forgetfulness or because of an oversight. This is an example of someone having a duty to provide care, omitting to provide care, and neglecting to do so. An Injury to an Elderly Person with an allegation of criminal negligence is a state jail felony.
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Estate And Advanced Care Planning
Texas law provides a number of ways for individuals to ensure that their wishes are carried out in the event they become incapacitated due to Alzheimers Disease or other health conditions. There are a number of standard forms that are available to provide instructions to medical professionals and family members who may have to make critical decisions regarding treatment and health care. While the Office of the Attorney General cannot provide legal advice, we do provide information on resources available for health related advance planning and personal and financial advance planning.
Elder Financial Exploitation: Undue Influence
There may be situations where the elder readily agrees to the wrongdoers actions, much to the concern and consternation of loved ones. Here, for instance, there may be an injury claim based upon undue influence upon the death of the elder and the revelation of the disposition of property under the Last Will and Testament.
To establish undue influence, it must be shown that there was:
the existence and exertion of an influence
the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament and
the execution of a testament which the maker thereof would not have executed but for such influence.
Rothermel v. Duncan, 369 S.W.2d 917, 922 .
This must be an extreme situation. As the Texas Supreme Court explains: nfluence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Rothermel, 369 S.W.2d at 922.
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Get Help From A Collin County Criminal Defense Attorney
When you think of elder abuse, you may think of nursing home staff being accused of such crimes. However, much of the time, family members are the ones facing accusations. This can be an emotional situation for loved ones, especially if they are innocent.
If you are in this situation, make sure you have a solid defense. A Collin County criminal lawyer from Rosenthal Kalabus & Therrian can assess your case and reduce your charges or even get them eliminated altogether. If you have been charged with elder abuse, schedule a consultation with us. Give our office a call at today.
No Longer Caring For An Elderly Individual
If a caregiver is no longer providing care when the injury occurs, that is an affirmative defense, but there are certain requirements that must be met according to Texas Penal Code Section 22.04. The person claiming this defense must have informed the injured party in person that they will no longer be giving care, food, medical care, or protection. Also, they must have notified the elderly individual in writing that care would no longer be provided.
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Texas Elder Financial Exploitation Crimes: Forms Of Criminal Fraud Or Theft
Elder financial exploitation, when discovered, can be prosecuted as a serious criminal charge under state law. The Texas Legislature has passed specific criminal statutes designed to punish those who financially abuse the elderly. Among these state laws are two provisions of Chapter 32 of the Texas Penal Code, which outlaws various forms of fraud. They are:
- Texas Penal Code §32.45, entitled Misapplication of Fiduciary Property or Property of Financial Institution and
- Texas Penal Code §32.53, entitled Exploitation of Child, Elderly Individual, or Disabled Individual.
Exploitation here has been statutorily defined as the illegal or improper use of a child, elderly individual, or disabled individual or of the resources of a child, elderly individual, or disabled individual for monetary or personal benefit, profit, or gain. Texas Penal Code §32.53.
Texas laws against theft also provide for criminal prosecution of elder financial exploitation. They include Texas Penal Code § 31.01 and Texas Penal Code § 31.03, as detailed by the United States Department of Justice Prosecutors Manual for the Elder Justice Initiative.
Penalties For Elder Abuse
Punishments for elder abuse range widely between states. Some states such as Florida have serious penalties for elder abuse and neglect.
State penalties for elder abuse may vary in several ways:
- Some states have increased penalties for victimizing older adults versus other adults.
- In some states, elder abuse is a mandatory felony.
- Different states have different limits on damages awarded in civil suits.
While there is no rule for how states determine the punishment for elder abuse, outside factors may influence their severity.
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Quality Journalism Doesn’t Come Free
Perhaps it goes without saying but producing quality journalism isn’t cheap. At a time when newsroom resources and revenue across the country are declining, The Texas Tribune remains committed to sustaining our mission: creating a more engaged and informed Texas with every story we cover, every event we convene and every newsletter we send. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Do you value our journalism? Show us with your support.
What Is A Grand Jury
All Texas felony cases go through the indictment process and the grand jury. Like a jury, the grand jury is composed of residents from the Texas County that the allegation took place. Also like a jury, the grand jurors make decisions about cases. Grand jurors decide whether felonies go forward after an arrest. Unlike a jury, this is a completely closed door proceeding, unopen to the defense attorney. There are not the rules of evidence or procedure of trial, and there is no judge in the grand jury room. A prosecutor presents a case to a grand jury and the grand jurors can discuss and ask questions. The only people allowed in the grand jury room are the prosecutor, the grand jurors themselves, and a court reporter. The prosecutors can present witnesses and the defendant can testify, although the defendant cannot be compelled to testify to the grand jury or at any other time, including trial. The decision for a defendant to testify at any point is a decision for the defendant to make with his or her defense attorney. Even though a defense attorney is not allowed in the grand jury room, they can influence a case at this early stage by approaching a prosecutor who has the case and present evidence to them or expose problems with the case. Sometimes this can be very effective, although it depends on the particularities of the case.
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The Role Of Bank Employees
Bank employees who get to know the habits of their elderly customers frequently spot situations that could signal financial exploitation. Signs of potential exploitation include the following:
- Transactions on an elderly customers account by someone other than the account holder
- An elderly customer who seems intimidated or afraid of a person accompanying them
- Confusion or an apparent lack of understanding on the part of the elderly customer while a companion controls what is said and done
- Transactions, such as unusually large or frequent withdrawals from an account, that are contrary to the customers usual practices
If you have been accused of abusing or neglecting an elderly person in Texas, dial and talk to Rand Mintzer, Attorney at Law.
Rands focus is protecting you and your legal rights throughout the criminal process. He will go to battle for your freedom and legal rights.
Rand Mintzer, Attorney at Law1523 Yale St