Having defended numerous fraud allegations in both state and federal court,
there is no question that the quickest way to cover your own tracks is
by accusing another person of fraud – particularly when it comes
to elder or vulnerable adult abuse. It’s like screaming “fire”
in a crowded theater.
In recent years, Arizona laws have been beefed up to protect the elderly
and other vulnerable adults from abuse.
What Is A Vulnerable Adult?
A.R.S. 13-3623(F)(6) defines vulnerable adult as follows: "’Vulnerable
adult’ means an individual who is eighteen years of age or older
and who is unable to protect himself from abuse, neglect or exploitation
by others because of a mental or physical impairment.”
Elderly does not equate to vulnerable, though.
Probate And Civil Issues Do Not Equate To Criminal Fraud
I have defended several cases in which there is an underlying dispute about
a will, an estate or the assets of an elderly individual. Oftentimes,
relatives and heirs don’t feel like they have been treated fairly
or that they have gotten enough money, and that someone else is getting
more. So they claim fraud.
It is not uncommon for elderly individuals to gift or will property or
money to individuals who take care of them, particularly when their children
or family do not.
The disgruntled heir often claims that the caregiver somehow manipulated
the elderly person into making the decision and that the elderly individual
was vulnerable and incapable of making that decision. This is not to say
that elder abuse or vulnerable adult abuse does not happen. It does. The
purpose of this article, though, is to point out that false allegations
are often made by individuals who themselves, are stealing from the elderly
individual and direct attention to another person to cover their own tracks.
How To Defend Against Vulnerable Adult Abuse Allegations
I have found that there are usually two common elements to every claim
of elder abuse:
- Claims of incapacity, and
- Notarized or otherwise official records to show the transfer of property or assets
Let’s examine each in turn.
While it is easy to say that someone lacks capacity or has dementia such
that they are incapable of transferring property, it is important to examine
the medical records of the elderly individual. A relative simply saying
that they had Alzheimer’s or, for some other reason were incapacitated,
is not sufficient. A physician needs to make a certification
and that certification needs to be made
before the alleged fraudulent act.
As to records involved in the transfer of assets or property, oftentimes
documents are executed before a notary. Notaries can be interviewed or
deposed about the elderly individual’s mental status at the time.
Generally speaking, notaries are not allowed to attest to the signature
of someone whom they believe does not have all of their faculties. This
is yet another way to show that an elderly individual made a voluntary
decision and that no vulnerable adult abuse occurred.
Only An Experienced Criminal Defense Attorney Can Assist You
Elder abuse or vulnerable adult abuse cases are not run-of-the-mill fraud
cases. They take specialized training and experience to properly defend
them. Just like child abuse cases, prosecutors see elderly individuals
as extremely vulnerable and seek extremely harsh prison sentences and
financial sanctions against those accused. Every case requires a customized
and tailored defense in order to be successful. If you are being investigated
or charged with elder abuse or vulnerable adult abuse, it is important
that you contact the one criminal defense attorney in Phoenix who has
substantial experience and success in defending these cases. Contact Jason
Lamm at (602) 663-9100 to set up a personal and confidential consultation.