The annual financial loss at the hands of fraud suffered by seniors a in the U.S is estimated at $2.9 billion dollars. That’s according to a study conducted by MetLife and the Center for Gerontology at Virginia Tech. Even worse perhaps, are the roadblocks the elderly must go through in an effort to gain restitution for these criminal acts.
“The grand jury ultimately decided not to return any charges on the case.” Trigg County Commonwealth Attorney Carrie Ovey-Wiggins said.
Ovey-Wiggins took Caroline Giegerich’s case involving the alleged financial abuse of her grandfather Bill Bush because she thought the case had teeth.
“When I look at a case for a charge the burden is probable cause, but then to get a conviction is beyond reasonable doubt and those are all things that have to be looked at by me and by a grand jury in order to go forward.” Ovey-Wiggins said.
Ovey-Wiggins is legally limited by what she can say because, despite deliberating twice, the grand jury didn’t return an indictment.
But, here’s the case, according to Giegerich, who felt her grandfather’s former caretaker, who also happened to be his neighbor, had taken advantage of him to the tune of $30,000 dollars.
“The neighbor claims that my grandfather asked him to sign the checks. The jury couldn’t be sure from my grandfather’s answers whether the perpetrator was accurate or if my grandfather just couldn’t remember it, now that is the whole reason why the elderly are scammed.” Giegerich said.
Giegerich says the alleged fraudulent check writing didn’t reveal itself until later because she was initially concerned about her grandfather’s health. The neighbor allegedly had been writing checks for 24 hour care. Giegerich says judging by the squalid conditions within her grandfather’s home that care wasn’t provided. He wasn’t receiving his medication and he had entered into a mental state where he no longer to desired to live.
“They get Alzheimer’s, they get dementia. We all get old and we all start to fail, and the question is are there protections that will protect us and protect our loved ones and right now the answer is no.” Giegerich said.
But, there was no indictment, and even if there had been, a criminal conviction carries a heavy burden because there must be consensus among all jurors.
Retired Circuit Judge Dennis Foust says there are a number of reasons the criminal court is not suited for this type of trial. The victim may not provide reliable testimony because of age, health and mental faculties, a fraudster may challenge a victim's statements and family issues may devolve into a "he said/she said" argument. Ultimately, Foust says these issues are better resolved in a civil suit.
“If I’m supposed to be taking care of my mother’s financial needs or someone who is an elder and then I choose to compensate myself. Am I legitimately entitled to that compensation or am I in essence stealing from them? There is a fine line to be drawn, which takes you into a situation where in the criminal justice system it is difficult to show that there is an intent. What often happens if a person is charged criminally then they are ultimately resolved with a civil remedy.” Foust said.
A civil lawsuit can yield some favorable results to the victim even if a criminal case results in an acquittal, according to Foust. But, a civil case isn’t easy either. Legal fees can become a barrier. And simply having an advocate can be a challenge. In 90 percent of these cases family members are involved in the financial abuse.
“I don’t think you can go pass a law that will fix this, it’s a matter of responsible people trying to look out for those that are vulnerable.” Foust said.
Giegerich is now seeking restitution from the local bank that issued some 30-thousand dollars in cashed checks from her grandfather’s account. She has filed a complaint with the Kentucky Department of Financial Institutions. In a letter, the accused local bank disclosed it would not comment on the case. In the meantime, Giegerich is doing just as Foust has suggested, she is looking out for her loved ones.
“And I can’t stand to see people mistreat someone who couldn't take care of themselves and I feel that way about any elderly person after I spent an entire year with just them, they are so unprotected.” Giegerich said.
Giegerich plans public demonstrations at the local bank this month.
KY Department of Financial Institutions
502-573-3390
800-223-2579
