By: Greg Esser
When he was asked why he robbed banks, Willie Sutton, one of the first names on the Federal Bureau of Investigation’s (“FBI”) Ten Most Wanted Fugitives list, is said to have replied “Because that’s where the money is.” Today, stealing money from an elder or a vulnerable adult is easier than robbing a bank, and now “that’s where the money is.”
Elder and vulnerable adult abuse and exploitation is a rapidly growing crisis with devastating consequences for victims and society, and little accountability for perpetrators. Efforts to fight this travesty face numerous challenges. First, the vast majority of cases never get reported to authorities. Second, much like white collar crime, elder abuse and exploitation cases are extremely difficult, and thus extremely expensive, to litigate. Third, the state and local agencies responsible for investigating reports of elder abuse are “chronically underfunded.” Fourth, the new federal National Adult Maltreatment Reporting System (“NAMRS”), designed to collect data about the scope of the crisis, is structurally challenged by the lack of uniform elder abuse and exploitation laws at the state level. These barriers need to be removed to better protect the safety, welfare, and dignity of aging Americans.
The first major step forward in the federal effort to collect uniform data began in 2013 with the development of the NAMRS. After a pilot period, the system began collecting, compiling, and publishing data in 2016. Reports have been published annually every year since. All 56 states, territories and the District of Columbia now participate in reporting data from state Adult Protective Services (“APS”) agencies to NAMRS. As of the 2021 report, fewer than half of states collect or report perpetrator data, for example, but progress continues.
NAMRS defines financial exploitation as “The illegal or improper use of an individual’s funds, property, or assets for another person’s profit or advantage.” The APS agencies that report to NAMRS define client eligibility through age and disability. All 56 reporting APS programs serve clients with eligibility age ranging from 60 to 65. Most, or 53 of the reporting agencies, also serve clients 18 years or older with disabilities.
With the aging of the Silent Generation and Baby Boomers, the United States is currently undergoing the largest generational transfer of wealth in our nation’s history, with an estimated value ranging from $30 trillion to $68 trillion. The Wall Street Journal has called out cognitive decline as “Baby Boomers’ Greatest Financial Risk.” The significant individual wealth of retired persons coupled with the vulnerabilities of cognitive degeneration naturally inherent in aging place our older population in the crosshairs of criminal predators and dishonest family members alike.
The rate of elder and vulnerable adult abuse and exploitation is growing as our population ages. In 2020, the FBI began separately publishing reports of fraud made through the Internet Crime Complaint Center (“IC3”) where the victims are over the age of 60. According to that report, “[i]t is only by victims reporting fraud that we can identify trends, educate the public, and support investigations, and nowhere is this more important than crimes against seniors.” The 2020 report determined an increase over the prior year of $300 million in losses to victims over the age of 60. “In 2021, over 92,000 victims over the age of 60 reported losses of $1.7 billion to the IC3. This represents a 74 percent increase in losses over losses reported in 2020.”
The Department of Justice estimates that one out of every ten persons over the age of 65 experiences some form of abuse or exploitation each year. The same summary estimates that only one out of every fifty-seven cases of caregiver neglect is reported and only one out of every forty-four cases of financial exploitation is reported. These estimates of under-reporting are based on prevalence studies which make projections based upon smaller population samples. The rate of exploitation and abuse may be higher than prevalence studies suggest. In an investigation of wire fraud, a group of six attorneys general identified victims of the fraud and determined that only one percent of the known victims made any report to authorities.[1]
Of those cases that are reported, very few result in criminal prosecution. For example, Alabama’s Department of Human Resources received 10,566 reports of suspected abuse, neglect, or financial exploitation of elders and vulnerable adults in 2020. Yet of those reports, only 285 cases were prosecuted under Alabama law. In the same year in Arizona, 23,054 reports of abuse or exploitation were received, and of those, only 202 allegations resulted in state action. Arizona provides an interactive year-over-year data dashboard, making it one of the few states to provide transparent data to the public for Adult Protective Services. As these two examples suggest, even where perpetrators are reported, it remains highly unlikely that they will be criminally prosecuted, leaving elderly victims in harm’s way.
Without uniform law, it is impossible to collect and meaningfully analyze data to understand the true parameters of elder and vulnerable adult abuse and financial exploitation at a national level. Without consistent empirical data, it is difficult to establish budget priorities and to craft the most effective education and preventions.
In spite of the current inconsistency in law and data, there is broad bipartisan consensus across disciplines that elder and vulnerable adult abuse and financial exploitation is a significant and growing issue in America, one that costs society well beyond the loss to individual victims and their families. Estimates of the national cost to victims of elder and vulnerable adult financial exploitation range from $2 billion to over $36 billion per year. That rate will increase as roughly 10,000 people turn 65 every day according to a U.S. Census Bureau projection. “Older adults are projected to outnumber children under age 18 for the first time in U.S. history by 2034,” according to the same report.
Creating a clear and consistent uniform law to create civil as well as criminal deterrents for harms to elder and vulnerable adults is a critical next step in the fight against this growing crisis. The Department of Justice maintains current state statutes for elder abuse as part its Elder Justice Initiative (“EJI”). Currently, there is wide variation among states, and between different disciplines, as to terminology, definitions, and forms of elder abuse. Without a uniform law, it is impossible to collect uniform empirical data to understand the true scope of this crisis at a national level, nor to compare prevention efforts between jurisdictions. States vary in terms of the definition of “elder” and of “vulnerable adult,” meaning that eligibility for legal protection varies. What is a criminal elder abuse violation in one state may not be illegal in another state. Further, the FBI does not currently track elder abuse (or domestic violence) in Uniform Crime Reporting (“UCR”) and National Incident-Based Reporting System (“NIBRS”) data.
Neither the American Law Institute nor the Commission on Uniform Law have addressed elder and vulnerable adult abuse and financial exploitation. Uniform laws do cover related areas of probate, trust, and guardianship laws. The financial sector, which holds trillions of dollars of assets in trust for retirement age Americans, was first to put forward model legislation for adoption by the states. The North American Securities Administrators Association (“NASAA”) put forward a “Model Act to Protect Vulnerable Adults from Financial Exploitation” in 2016. That model legislation has now been adopted by 34 states.
In December, 2022, WalletHub published a report ranking all 50 states for elder abuse protection. The report ranked Wisconsin as highest in terms of protection of elders, and Utah as the lowest, or worst state to retire in. WalletHub also ranked Massachusetts highest in spending for combatting elder abuse. This rank correlates with aggregate data compiled and published the Court Statistics Project. In 2021, Massachusetts prosecuted 1,422 criminal felony cases of elder abuse, more than all other states combined. Protecting elders requires an investment in education, prevention, and prosecution to offset the huge losses to victims and society occurring today. Clear uniform legislation and more consistent national data will make the case for greater public investment in combatting this scourge. Effective civil financial remedies will shift costs from public to private litigants.
Benjamin Franklin observed that “[a]n ounce of prevention is worth a pound of cure,” arguing that it is far more costly to treat disease than to prevent it in the first place. Prevention through clear uniform law providing for more civil remedies in the form of money and punitive damages is a more cost-effective deterrent to the epidemic of elder and vulnerable adult abuse and financial exploitation than the extremely limited and highly unlikely remedy of criminal prosecution of perpetrators.
[1] David Neil Kirkman, Elder Fraud Wars: Case Histories from an Enforcement Attorney 2 (2020).
Greg Esser (he/him) is an artist and 3L at the Arizona State University Sandra Day O’Connor College of Law. He graduated from Oberlin College with a B.A. in Art and Social Change. He also graduated from Arizona State University’s Herberger Institute for Design and the Arts with a M.F.A. degree in Intermedia. His legal work and research focuses on elder law issues including financial exploitation and white collar crime.
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