Cases of elder abuse hard to prosecute

 Local attorneys and social workers are alarmed by a growing number of complaints of elder abuse, neglect and fraud, and frustrated that very few cases are ever prosecuted. But while state law requires that elder abuse be reported, the high level of proof needed for criminal charges is often elusive.

Victims want offenders to be criminally charged and prosecuted, but law enforcement agencies and prosecutors say there often is no evidence. If an abuser has legal documents such as power of attorney, it is especially hard to prove that a victim has been defrauded or stolen from.

Attorney Erika Erickson has worked on almost a dozen cases since June in which senior citizens have fallen victims to fraud, abuse or neglect. None of the cases have made their way to criminal prosecution.

“Nothing ever happens to these people,” she said. “You steal from one, and you move on to the next one. People are sitting ducks here."

Many suspects haven't been arrested and prosecuted because there is no proof, District Attorney Greg Newman said.

“There has been talk and reports, but not one case has been charged or indicted because we haven't had evidence,” he said. “We will continue to review each case with law enforcement, and if we have a case with evidence, we'll prosecute that, but we haven't had that yet.”

Specifically, the court needs “proof beyond reasonable doubt” to charge an individual with criminal charges.

According to state law, “any suspicion of the occurrence of elder abuse must reported.” Types of abuse can include inflicting physical pain, injury or mental anguish; unreasonable confinement; or the willful deprivation by a caretaker or services. Exploitation for profit and neglect also fall under the North Carolina Elder Abuse law.

However, North Carolina has no specific laws regarding prosecution of individuals who abuse elders. Across the country, only a handful of states have laws outlining how to prosecute an individual after the victim has been abused.

Since 2011, the Henderson County Sheriff's Office has seen a 12 percent increase in reported fraud crimes targeting those age 60 and older, who make up 30 percent of the county's population, according to crime statistics from the Sheriff's Office. These crimes include obtaining property by false pretense, credit card fraud, identity theft, wire fraud and other kinds of fraud.

There were 109 cases of fraud in Henderson County in 2015. The Transylvania County Sheriff's Office reported 42 cases of fraud in the same time period. Transylvania County's elderly make up 28.5 percent of the population, according to statistics form 2014, the most recent for the county.

Newman has talked to victims of these crimes and brought the State Bureau of Investigation in more than once to look into elder abuse allegations, but he has yet to prosecute one.

“The truth is, I don't recall indicting anything like this,” he said.

In Transylvania County, of 26 cases reported last year, the victim either knew the offender or was taken advantage of by “cheating someone the old-fashioned way,” said Sheriff David Mahoney.

These cases often include obtaining property by false pretense, or credit card or ATM fraud.

Out of those 26 cases, suspects were arrested in 12. In three cases, the victim did not press charges, five were determined to be unfounded, and six remain under investigation, Mahoney said.

The obstacles 

In most of attorney Erickson's cases, prosecution has been made more difficult because a senior has given power of attorney rights to another individual, oftentimes a family member, friend or caregiver.

Power of attorney grants another individual the power to step in and handle financial, tax or medical decisions and actions on the person's behalf. According to the law, the person must always act in the individual's best interest and may not be compensated for their services. A power of attorney form must be notarized, and there must be two witnesses present.

Erickson has seen cases in which a senior citizen without family in the state befriends a younger person. The victim signs a power of attorney document or perhaps adds the younger person to a will, and that younger individual can then legally obtain the senior citizen's assets.

There are also instances in which a senior's family lives far away, and once family members find out about their parent or grandparent being abused or scammed, it is too late or too difficult to prove that laws were broken.

In one case, Greg Smith was living across the country when his mother in Henderson County became ill. His sister stepped in to take care of their mother, and at the time he thought everything was fine.

After about five months, he said he found out his sister had power of attorney and had been taking his mother's money. He said his mother was not receiving proper care — that her medications were being withheld and she was not receiving necessary surgeries.

Smith flew to North Carolina and spent about 50 days trying to get everything straightened out.

Adult Protective Services officials investigated the case, Smith said, and they concluded that his sister was not fulfilling her legal responsibilities as their mother's caretaker. But when he tried to get criminal charges filed, he was unsuccessful.

In cases where a legal document has been signed, it is incredibly difficult to find evidence that the senior signed it unknowingly or unwillingly, Newman said.

“I can't help them when I see those documents,” he said. “To prove a crime in a case like this is a real, real challenge. While these crimes appear suspicious on the face, it does not mean that I can prove a crime.”

Smith said he had evidence, but was told that law enforcement could not prosecute it as a criminal charge and he could pursue it in civil court.

Law enforcement agencies will still investigate a complaint.

Hendersonville police officers always respond to calls, treating potential victims with compassion and dignity, Chief Herbert Blake said.

“We, the police, charge when the charges are there to be made and (if) we have a willing victim,” he said.

In Transylvania County, the Sheriff's Office is responsible for an investigation, while prosecution is up to the District Attorney's Office, Mahoney said.

“It's like a hand off in a football play,” he said. “We developed the investigation, collected the evidence and the facts. Once we hit that point and established probable cause exists, we charge the appropriate charges and hand it over to the prosecution.”

However, these cases aren't being prosecuted, and many are frustrated, including Attorney Lee Mulligan, who works with Erickson.

"I'm frustrated that our prosecutors won't take this (issue) seriously," Mulligan said. "I just know this is going to be a continuing issue in this community."

 If suspects aren't punished, there are going to be more victims, Erickson said.

 “They need to be caught, and there needs to be a consequence; it doesn't mean that they need to go to jail, but at a minimum there needs to be some service to the victim,” she said.

 Smith is going to pursue his case as a civil matter, but wants cases of this nature to be criminally prosecuted in the future.

“I think that their hands are tied in a way, and nobody wants to pull the trigger to get language changed in legislation,” he said. “It wasn't like I got the stiff arm from anybody. Everybody was great about that, but it's bigger than they are.”

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Cases of elder abuse hard to prosecute