Financial fraud against older Americans is a concern that is driving strict measures of enforcement nationwide. In the United States, 84 percent of crimes against the elderly go unreported. If current trends are any indication, financial exploitation against older Americans will rise precipitously as the bulk of Baby Boomers enter retirement. As we tackle the solvency issues of our nation’s public and private pension systems, we must at the same time reinforce laws that protect older Americans from being defrauded of their retirement income.
The majority of people over the age of 65 live independently with little or no assistance. Many others must rely on the assistance of friends or family to manage their personal finances. Older individuals are frequently the victims of unscrupulous sales offers or illegal lottery scams. These factors place older Americans at particular risk of being financially exploited by others, including family members.
The mishandling of another’s finances by a person of trust can be inadvertent, a crime of opportunity; or it might be willful, deliberate theft or deception. The degree of intent to defraud an elder/at-risk adult varies, and is defined by Colorado law.
The definitions that govern these laws are:
— Elder and at-risk adult: Any person 60 years of age or older, or any person who is 18 years of age or older and is a person with a disability.
— Fraud: Occurs whenever a person or business engages in unfair/deceptive practices, such as misleading advertisements, sales and substandard merchandise, or violation of regulatory guidelines by the insurance, health care or home repair industry (also defined as consumer fraud).
— Exploitation: The illegal or improper use of an elder/at-risk adult’s resources for another person’s profit or gain.
— Financial exploitation: The action or failure of action by an individual that causes substantial monetary or property loss to an at-risk adult, or causes a benefit to a person that should normally go to the elder/at-risk adult. Often, financial exploitation occurs in concert with other forms of exploitation, abuse and neglect, such as mismanagement of income or assets; signing of checks or documents without the elder/at-risk adult’s consent; charging excessive fees for rent, home repair, in-home care or other services; stealing money or property; or obtaining money or property without authorization by threat or deception.
In cases involving suspected fraud or exploitation, valid consent must be given by an elder/at-risk adult to the person operating on his/her behalf. By law, valid consent requires that the elder/at-risk adult have the mental ability to understand what is happening. A consenting elder/at-risk adult who is confused and demented has not given consent.
By these definitions, crimes committed against elder/at-risk adults are prosecutable offenses, subject to penalties under Colorado’s Criminal Code. In recent years, Colorado has enacted and in some cases strengthened the following legislation to enforce penalties and to provide greater protection to individuals at greatest risk of financial fraud and exploitation.
Colorado Criminal Code – At-Risk Adult Statute (Class 3 Felony Theft): People convicted of a crime against an elder/at-risk adult can be subjected to penalties ranging from 10 to 32 years in prison, a fine up to $750,000, or both. Prior to the reinforcement of this code, many crimes against elder/at-risk adults typically brought only misdemeanor convictions.
Colorado’s Reporting Statute: Colorado is one of only a few states that urges, rather than mandates, the reporting of suspected fraud or exploitation against elder/at-risk adults. This statute covers adults who are susceptible to mistreatment, primarily those who lack the sufficient understanding to make responsible decisions regarding his or her affairs. The Colorado Reporting Statute clearly specifies that institutions or people who report in good faith will not be held liable for making a report if the charges have proved to be unfounded.
Colorado Telemarketing No Call List: Telephone subscribers of standard, fax or wireless telephone services are eligible to register under the Colorado No Call List to stop over-the-phone solicitations. This law applies to phone advertising done by businesses, but exempts charitable and political organizations. Telemarketers who violate this act face stiff penalties if convicted. Coloradoans registered under the Colorado No-Call List are automatically included under the National No-Call List. To register, call 1-888-249-9097 or register online by going to www.coloradonocall.com.
Several other laws are in effect to protect consumers under Colorado’s Consumer Protection Act. Statues regarding these laws are available through the Colorado Attorney General’s Office or at their Web site at www.ago.state.co.us.
Laws exist to protect elder/at risk adults from exploitation, but there are many other safeguards we can take to reduce our own risks or those of older family members. For more information on elder financial fraud, contact AARP ElderWatch at 1-800-222-4444 or visit their Web site at www.aarpelderwatch.org.
Additional information on Healthy Aging is available on the Colorado State University Cooperative Extension web site at www.coopext.colostate.edu. Select On-Line Info then Healthy Aging.
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By Barbara Martin-Worley, Gerontologist, Denver Extension Director
Colorado State University Cooperative Extension, Denver County