What defines financial abuse in a relationship

BtPrax â € “Supervision Law Practice Volume 2016 BtPrax 5 / 2016 EssaysÂ

BtPrax - practice related to supervision law
5/2016 pages: 163 to 167

Financial abuse of old people and people in need of care - no issue - no problem? Part 1

Uwe Brucker Head of the care team at MDS, Essen1The author led the science projects MILCEA and â € œViolent Careâ € mentioned in the article; see www.milcea.eu, (accessed: August 8, 2016).

This two-part article deals with an aspect of violence against the elderly and people in need of care that has so far played a subordinate role in violence prevention in Germany: the financial abuse or financial exploitation of old people. For this purpose, legal and practical approaches are presented from other countries, especially from the USA, which can also be groundbreaking for the design of a prevention concept in Germany. A focus is also placed on possible risk factors, with the problem of inappropriate influence being investigated.

In the second part of the article (to be published in the upcoming issue of BtPrax 6/2016), legal support and power of attorney are examined. At the end of the article, reference is made to recommendations that can be found in the as yet unpublished project report on the subject of â € œViolent careâ €.2http://www.milcea.eu/gfp.html, carried out by the MDS (Medical Service of the National Association of Statutory Health Insurance Funds) and the University of Cologne; funded by the Federal Ministry of Health (BMG), last checked on November 25, 2015; the final report will be available there as a file after it has been approved.

I. Financial abuse of the elderly as an act of violence

Violence against the elderly has many facets. According to the WHO definition of violence, violence against the elderly is a one-off or repeated act or the failure to perform a required action within a familiar relationship that harms the elderly or puts them in distress.3http://www.who.int/ageing/projects/elder_abuse/en/, (accessed: 4.6.2016). Violence against the elderly is mainly divided into physical, sexual and psychological violence, as well as neglect and financial exploitation.

Financial abuse of the elderly is considered a serious social problem in the USA with serious consequences for the victims, their family members and also for society. Financial abuse, also known synonymously as financial exploitation, is illegal or inappropriate or "unclean" (undue) Dealing with old people's money, property and other property. Those in need of care are the most vulnerable group among the elderly (65+).

In Germany, the topic of â € œfinancial exploitationâ € plays almost no role in the context of violence against old people and people in need of care.4Exceptions include the work of the Institute for Criminology and Interdisciplinary Violence Prevention of the German Police University in Muenster under the direction of Thomas Görgen. The references in the literature5E.g. â € œPflege in Bayernâ € in the 01.2014 edition (No. 29). Almost all are silent on this. A review from 2008 was unable to find a study on the subject of violence against old people in 49 studies that dealt with a concept or the measurement of the financial exploitation of old people.6Cooper / Selwood / Livingston (2008): The prevalence of elder abuse and neglect: A systematic review. Age and Aging, 37 (2): 151-160.

In the â € œViolent Careâ € project7http://www.milcea.eu/gfp.html, carried out by the MDS (Medical Service of the National Association of Statutory Health Insurance Funds) and the University of Cologne; Funded by the Federal Ministry of Health (BMG), last checked on November 25, 2015. In none of the four model municipalities involved was the topic associated with "Violence against the elderly and people in need of care", so it is not surprising that financial abuse has not (so far) been mentioned in any violence prevention concept. The fact that financial abuse is excluded from the prevention of violence against the elderly and in need of care is apparently not atypical. In a small teaching research project at the Cologne University of Applied Sciences, possibilities for intervention and intervention practice in the case of violence in care in the city of Cologne were researched. At least three out of nine experts questioned named financial exploitation as a form of violence. In the subsequent action planning in the project, however, these statements have no consequences.8Brosey et al.: Teaching research project Crisis Intervention in Violence in Home Care in Cologne, Cologne University of Applied Sciences (2012), Download: http://www.sw.fh-koeln.de/sandbox/groups/diesacademicus2012/wiki/7be93 /attachments/64dcc/Projektbericht.pdf?sessionID=78d806fd74af503259aac334c704c16c945bef5a, (Access: 3.8.2016). These experiences coincide with the findings from the - especially US - specialist literature: Financial exploitation is the least studied, least understood and possibly the most difficult form of violence against the elderly and the most difficult to detect people in need of care.9TL Hafemeister (2004): Financial Abuse of the Elderly in Domestic Settings. In: R. Bonnie; R. Wallace (Eds.): Elder mistreatment: Abuse, neglect, and exploitation in an aging America (pp. 382-445), Washington, DC: National Academies Press. Probably also because the models of violence against old people and those in need of care are based on violence against children and young people in the other forms of violence; these do not explain the financial exploitation of the elderly and those in need of care. A different analytical approach is indicated for this. The financial exploitation of the elderly and people in need of care is completely undervalued,10MetLife Mature Market Institute: Broken Trust: Elders, Family, and Finances. New York March (2009) p. 5, Download: https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf, ( Accessed on August 3, 2016). underrepresented in public and rarely prosecuted. MetLife's 2011 final report11MetLife Mature Market Institute: Elder Financial Abuse. New York June (2011), p. 7. Download: https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf (Access: 29.8. 2016). the financial abuse of old people is called "the crime of the 21st century", which is at the center of other forms of abuse of old people.

In order to initiate preventive measures against financial exploitation, professional contacts and networks are indicated, which must extend beyond those of the health and social professions. The decision-making levels of banks and savings banks as well as those responsible for the police force will have to be made aware of the issue by other areas of responsibility; A look at the history of preventive measures for the financial exploitation of old people in the USA shows how it works: top-down.

II. On the relevance of financial abuse of the elderly and people in need of care

Countries that can look back on a long tradition of dealing with violence against the elderly attach great practical importance to financial exploitation. The prevalence of financial exploitation in the violence study from South Carolina (2012) ranks 6.1% of the frequencies before neglect (5.4%), psychological violence (5.1%), the physical violence (1.8%) and sexual assault (0.3%).12Amstadter et al (2011): Prevalence and Correlates of Elder Mistreatment in South Carolina: The South Carolina Elder Mistreatment Study, Journal of Interpersonal Violence 26 (15) 2947-2972. Figures from Germany are not available; there is no representative prevalence study.

Financial exploitation occurs in 98% of all relationships in the United States in which violence occurs, be it in the form of denial of access to money, be it that the property is plundered.13Chen (2011): How to Stop Domestic Financial Abuse. How to prevent, and recover, from this type of dangerous behavior. In: http://money.usnews.com/money/blogs/my-money/2011/04/26/how-to-stop-domestic-financial-abuse, (accessed: August 3, 2016). The existence of financial exploitation of the elderly and people in need of care can therefore be used as an indicator for other forms of violence.

The univariate analysis showed that low income, physical ailments, mental illness and poor social support are associated with a higher risk of falling victim to violence. The latter two predictors are the strongest. Half of the perpetrators were adult children (50%); who were 50% unemployed and 20% had addiction problems.

According to the two MetLife studies (2009 and 2011), older people in the USA are "robbed" of more than US $ 2.6 billion a year, and by 2010 the damage had risen to US $ 2.9 billion. $ (an increase of 12%).14MetLife Mature Market Institute: Elder Financial Abuse. New York June (2011), p. 7, in: https://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf, (Access: 29.08 .2016). The total cost (health care, social services, investigative and judicial costs, lost income and assets) is estimated to be tens of billions of dollars annually.15MetLife Mature Market Institute. Broken trust: Elders, Family and Finances, New York March (2009), Download: https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family- finances.pdf, (accessed: August 3, 2016).

The latest True Link report on financial abuse of the elderly16The True Link Report on Elder Financial Abuse. San Francisco (January 2015), in: https://truelink-wordpress-assets.s3.amazonaws.com/wp-content/uploads/True-Link-Report-On-Elder-Financial-Abuse-012815.pdf, ( Accessed: March 9, 2016). doubts the figures available so far as well as the statements on the risk groups of the elderly victims. This report, which also examined modern sales methods and electronic media in the USA, speaks of an annual loss of approximately US $ 36 billion.

Criminally relevant fraud acts add up to annual losses of US $ 12.76 billion; this includes the grandchildren's trick or the advance begging letter from the Nigerian prince as an e-mail. The TrueLink study puts abuse by caregivers at US $ 6.67 billion: mainly through deception or theft, which is possible through a trusted relationship; typically they are family members, but also paid helpers, friends, the lawyer, tax advisor or investment advisor.

With regard to the sources of risk, too, this study sometimes comes to different results than older reports. It is often assumed that widows, very old people or people with massive memory disorders belong to the high-risk group. In fact, when looking at risk, vulnerability is to be equated with being exposed. Young elderly townspeople17Young old, middle old and oldl old (also very old) are categorizations in geriatric science; According to the DZA (German Center for Age Issues), the young and old are 60, the (middle) old ones start at 70; the very old (old old) start at 80 or 85+ (depending on the perspective of the respective studies). with college degrees lose more money than other old people.

Some sources of exposure come as a surprise: Seniors who are considered extremely friendly lose four times as much money to financial abuse. Probably because they're more approachable and trust strangers. Financially experienced old people lose more to fraudsters, presumably because they are more easily able to move large sums of money. Frugal seniors lose five times more money to scammers, probably because they are lured by bargains.

A development that has not yet been taken into account in this country is also problematized in the USA in the context of financial exploitation: a very high proportion of women are employed (57% in 2015, of which 74.2% had a full-time position).18US Department of Labor; Women's Bureau: Latest Annual Data; Charts 9 and 21, download: http://www.dol.gov/wb/stats/latest_annual_data.htm#;labor, (Access: 5/5/2015. These women leave the parents' generation as domestic carers and also no longer have a full overview of the care situation, especially if they live far away from the care household.In the USA there were already 3.3 million so-called long-distance caregivers in 2002 (more than 6.6 million it will be 2017).19Long Distance Caregiver Project - Alzheimer's Association LA & Riverside, Los Angeles, CA (May 15, 2002, National Web Seminar by Judith Delaney, MFT, Clinical Coordinator). This is seen as a risk of increased financial exploitation of those in need of care, who in such settings are cared for with unqualified, mostly poorly paid staff.

A parallel to German conditions is obvious: The labor law requirement for flexibility and mobility of workers on the labor market has often spatially separated the generations in the families, so that here too the fact that has already been observed in the USA It is becoming more and more of a reality that the parents' generation can no longer be cared for by their daughters, sons, etc. Prevalence figures for these constellations, in which Eastern European domestic helpers often live in the house of the person in need of care in Germany, are also not available here for Germany; It is estimated that there are between 100,000 and 200,000 domestic helpers working in Germany.20Neuhaus/Isfort / Weidner (2009): Situation and needs of families with Central and Eastern European domestic help, German Institute for Applied Nursing Research eV, Cologne, Download: http://www.dip.de/fileadmin/data/pdf/material/bericht_haushaltshilfen .pdf; last checked on August 3, 2016. The same applies to Italy, where there are similar situations with living in the house, often foreign help (so-called. badanti). The fundamentally associated risks of financial exploitation are generally assessed no differently than they are known from the USA.

III. Forms of financial exploitation

In the no-secrets definition21Department of Health (2000): No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse. Download: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/194272/No_secrets__guidance_on_developing_and_implementing_multi-agency_policies_and_procedures_to_protect_vulnerable_adults_from_abuse, access: 3.8.2016 from England it means financial exploitation or the synonym used term of financial abuse: Financial or material abuse includes theft, fraud, exploitation, the pressuring of declarations of will, property or inheritance or in relation to financial transactions or misuse, embezzlement, or misappropriation of property, possessions or services.

The crosstab below forms the model of Conrads et al. which is intended to prioritize and measure the dimensions of financial exploitation and also formulate recommendations for action for people involved in this issue.

IV. Risk factors in the victim

Prevention approaches primarily focus on the risks that can be found in the person of the victim.22Görgen et al. (2014): Security potentials in old age, report to the BMFSFJ as download https://www.dhpol.de/de/medien/downloads/hochschule/13/Goergen_et_al_Sicherheitspotenziale_Bericht.pdf, (accessed: August 29, 2016), p . 72.

Tab. 1: Measurement model on the topic of financial exploitation of the elderly

The following characteristics of the (vulnerable) person are considered possible risk factors:

  • It is dependent on the suspect (who is e.g. a legal guardian, authorized representative or caregiver).

  • She is impaired in independence (physical limitations, immobility or need for care).

  • It has damage to physical and mental functions and impairment of activities (including communication); this also includes restrictions in sight, hearing and mobility.

  • An expression of this damage and impairment is that the person is under legal supervision or has an authorized representative, or that they use a care service or live in a fully inpatient care facility.

People with dementia are considered to be particularly vulnerable.

1. Vulnerability of victims of financial exploitation

The harm to the victim can be that

  • it is not acted for the good of the person concerned,

  • the person is persuaded to do something

  • she is pressured to make gifts or make loans,

  • Property is misappropriated or

  • Social benefits (pension, social assistance, care allowance) are appropriated.

It could be theft, crook, or fraud in the context of new or old forms of butter cruises.

The question of the degree of vulnerability of the victim is important when it comes to victim protection and the function of adult protection and the question of when and how one interferes protectively in the personal affairs of an adult. This is where the issue of assuming responsibility for individuals or organizations (e.g. also banks) to protect the recognizable vulnerability of the elderly becomes an issue. Another important question is which state institution is responsible for protecting those affected.

When assessing the degree of vulnerability in England, one aspect is also considered which - when applied to German conditions - can be formulated as follows:

The starting point for the question of whether an elderly person is a vulnerable person can lie in answering the question of whether the person is Long-term care insurance benefits relates. In any case, there are many people in this group who are no longer able to protect themselves. Not all persons who receive long-term care insurance are automatically no longer able to protect themselves and their belongings; conversely, there are certainly also people who do not receive any care benefits and cannot ensure adequate self-protection. For the latter group are called Risk factors or vulnerabilities called:

  • a lack of capacity to assess what is happening,

  • the dependence on third parties to organize the care or financial affairs,

  • cognitive impairments that influence decision-making,

  • low level of dealing with financial matters,

  • Death, social isolation, loneliness that may be a gateway for financial exploitation,

  • gullible or trustworthy personality,

  • especially with old people: possibly increased wealth in connection with a modest lifestyle and a lack of awareness of the challenges of modern life make them more susceptible,

  • special factors, such as age, social isolation and / or decreasing or changing cognitive status, can make vulnerable people potentially repeated or chronic victims.

2. The will of old people and people in need of care - Inappropriate or inappropriate influence (undue influence)

The increase in the number of people of old age correlates with the increase in disease-related cognitive disorders. In parallel, there is a growing number of old people who have acquired some wealth. Taken together, both circumstances make old people vulnerable to inadmissible, improper or inappropriate influence (undue influence). This legal construct, which exists in some Commonwealth of Nations, the USA, Israel and other countries, is based on a situation in which one person overrides the free will of another person by taking advantage of his (relational) position and authority influences the other person in such a way that that other person feels compelled to agree to an agreement. The main variables here are moral and psychological pressure, which is possible in a relationship that is characterized by power imbalances and differently distributed strengths of will. Article 12, Paragraph 4 of the UN CRPD also takes up the idea of ​​improper influence to protect people with disabilities.

In many cases, it is difficult to make a distinction (to be made later): the question of whether it was financial exploitation or whether the old person made a bad financial decision willingly and consciously, i.e. independently.

To make this complicated distinction, various tests and legal standards have been developed to provide evidence of undue influence to be able to lead.

The first step is undue influence delimited from the fact of necessity:23§ 240 StGB.

Peisah et al. represent the results of a task force set up in Australia to describe clinical criteria for undue influence, especially with regard to wills.24Peisah / Finkel / Shulman et al .: The wills of older people: risk factors for undue influence, International Psychogeriatrics (2009) 21: 1 7-15. Risk factors for vulnerability were also formulated with regard to this inappropriate influence. This is intended to provide medical experts with a decision-making aid so that they can, for example, give the supervisory court information if a person is at risk for undue influence (inappropriate influence) is present. For the experts, the presence of one or more of these risk factors represents a â € œred flagâ € for acute risks for dangerous situations.

a. â € œRed flagsâ € for inappropriate influence are for the Australian Task Force ...

â € ¦ Relationship risk factors

  • A person in a position of trust or a person on whom the testator is dependent for his physical or emotional needs.

â € ¦ Risk factors in the social environment

  • Isolation or segregation of the person,

  • Changes in family relationships or in family dynamics,

  • recent painful loss, e.g. of a partner,

  • Family disputes.

â € ¦ Psychological and physical risk factors

  • Physical disability,

  • unspecific psychological factors, such as the last will on deathbed, sexually available object, serious illness with addiction and degradation symptoms,

  • Personality disorders,

  • Addictive substances,

  • mental illnesses, such as dementia, delirium, mood and paranoid fluctuations.

â € ¦ Legal risk factors

  • The beneficiary induces the expression of will or actively stimulates it.

  • The declaration of intent contains unusual provisions.

  • The content benefits the beneficiary.

  • The content contradicts previous declarations of intent.

  • Other documents were also amended at the same time.

b. Legal standards for testing undue influence using the example of the USA and Israel

Inappropriate influencing presupposes the ability to testify. In order to check for improper influence, courts in the USA and in some Commonwealth countries as well as in Israel have developed tests and legal standards in which, combined in different ways, these components are described as criteria that are given to court-appointed experts:

(1)

a relationship of trust that creates the opportunity for the person with influence to influence the creation of a will,

(2)

a vulnerability or susceptibility of the testator to inadmissible influence,

(3)

a tendency or a willingness of the suspect to want to exert influence,

(4)

the influence is inadequate and unreasonable,

(5)

the influencing person has used the relationship to bring about a change of will that would not have happened without their undue influence,

(6)

suspicious circumstances about the decision-making.25http://e-lawresources.co.uk/Undue-Influence.php with links to further court decisions, (accessed: August 3, 2016).

Courts in Israel apply four criteria to undue influence:

(1)

Check of independence at the time of submission of the declaration of intent: Determination of the extent to which the testator was physically and, above all, mentally independent

a)

Physical factors in the tester are:

  • Disabilities or limitations in seeing, hearing,

  • in mobility,

  • limited or impaired communication

b)

Psychological factors in the testers are:

  • Lonliness,

  • Marriage vows,

  • Time pressure on the deathbed,

  • terminally ill people under the influence of medication,

  • Dependent people in need of care,

  • the fear of being abandoned and left alone,

  • the grief and grief over the loss of a deep relationship,

  • Personality disorders often related to alcohol or drug abuse as well

  • a whole range of psychiatric conditions make people susceptible to inappropriate influence.

(2)

Assistance test: the determination of the extent to which the beneficiary has helped the testator.

(3)

The test of the relationship: the determination of the nature and intensity of the relationship. The relationship review involves comparing the relationships the tester had with other people and the relationship he had with the suspected beneficiary.

(4)

The examination of the circumstances under which the declaration of intent was carried out.26Shoet (2001): quoted in: Peisah (fn. 22).

When examining a person's vulnerability to inappropriate influence, the experts are required to examine the various risk factors that make old people and people in need of care susceptible to such influence. The likelihood that inappropriate influencing will take place is all the higher when the following situations exist:

There is a special relationship in which the tester relies on the other person or has considerable trust in the other person.

There is a particular form of isolation, whether due to physical limitations or communication disorders, which restricts the free flow of information and allows the truth to be subtly recorded or falsified.

There is a vulnerability that allows one to be able to exert influence through one's mental constitution or special emotional circumstances (e.g. the withdrawal of affection or persuasion on the basis of social, cultural or religious convention or obligation).

The influencing factors can after Peisah et al. be subtle, insidious, and powerful; and sometimes just a little pressure is enough to achieve the desired result.

V. Interim conclusion and outlook

Older people, especially when they are in need of care, are a particularly vulnerable group of the population with regard to the various forms of violence and especially with regard to financial exploitation. It remains to be seen whether the protective function of the family used to be more pronounced. Singularization, long distances to the children, changed forms of living are just a few examples of the fact that the family is less and less a reliable place for protection against violence and financial exploitation in old age. These social developments also result in specific, target group-oriented forms of violence, exploitation and crime. What dangers old people are exposed to in the various forms of financial exploitation and what preventive measures are already being taken, especially in other countries, will be the topic in Part 2. It will come as little surprise that authorized representatives and carers, as well as families, do not always appear as a refuge for prevention of violence in old age, but rather appear as part of the problem in isolated cases. In Part 2 of the article, recommendations are formulated not only to the legislature, as, based on the experience from the projects, effective prevention approaches can be designed.

The contribution continues.