What can you do if you are a relative, friend, professional advisor, or someone else interested in the welfare of an older person, and you suspect that the older person has been financially exploited through undue influence exerted by a care-giver or another person whom they trusted?

Before taking any formal action, your first step should be to make sure that you are accurately reading the situation.  Is your only evidence of exploitation an isolated incident of apparent excessive control and submissiveness?  Does your evidence consist merely of second-hand, hearsay allegations made by another party?  By the same token, it would also be wrong to accept at face value an elderly person’s denial that any abuse has occurred when there is some credible evidence to the contrary.  As mentioned in a prior section of this article, the elderly person who is denying abuse may well be suffering from the Stockholm syndrome, where such denials are consistent with undue influence being present.

Unlike physical abuse, where the tell-tale signs can be observed by physical exam, the presence of undue influence can be much more difficult to detect. Thus, if possible the elderly person should be personally examined by a gerontologist, neurologist, or other medical professional who has been trained in elder abuse issues, so that they can objectively assess both the elderly person’s vulnerability to exploitation through undue influence as well as their specific relationship with the suspected perpetrator.

The next step would be to consult with an attorney who specializes in estate and elder law matters to discuss your concerns, and then to devise with your attorney a specific plan for proceeding. While every case is unique, one or more of the following remedies are usually applicable to a case of financial abuse involving undue influence. 

If possible an attempt should be made to simply break the influence of the perpetrator over the victim. If you are not prepared to become directly involved yourself, you could at least convey your concerns to a relative or close friend of the victim who is known to be trustworthy, or to the victim's doctor, attorney, rabbi, or minister, with the hope that they will intervene. For example, the victim could be physically removed from the isolating conditions that have bred the undue influence.

The Pennsylvania Department of Aging operates a Protective Service Program in each of its Area Agency on Aging offices throughout the Commonwealth. The purpose of this Program is to protect older adults (defined as those 60 years of age and older) from neglect and physical, mental, and financial abuse.

Anyone can report suspected elder abuse or neglect to the Protective Service Program of their local Area Agency on Aging office for investigation. The law shields the reporting party from any type of retaliation; the reporting party may even choose to remain anonymous. To find the Area Agency on Aging that serves your county, see the AAA state/county map.  (The phone number for the Allegheny County office is 412-350-6905, and the statewide elder abuse hotline at 1-800-490-8505.) 

Once a report of financial abuse is filed, an investigation will be made by a trained investigator.  However, while the Protective Service Program can investigate alleged abuse, it has no authority to bring legal action on behalf of the victim to stop the abuse or to recover assets. The most that the Protective Service Program can do is refer its findings to the local District Attorney's office for possible criminal prosecution.

There have been relatively few criminal prosecutions of financial exploitation cases involving elderly victims in Pennsylvania. There are several factors that may explain this lack of activity.

In many cases the most effective remedy available to the older person who has been victimized by financial exploitation is to engage an attorney to bring legal action against the perpetrator to seek redress on the grounds of undue influence, misrepresentation, and fraud. The action could be brought by the victim directly, by his or her agent acting under a Power of Attorney that authorizes the agent to commence litigation, or by a Guardian of the Estate appointed by a court for the victim (discussed below).  After the victim's death, the case could be filed by the personal representative of the victim's estate. 

Regarding potential defendants, such parties would obviously include the perpetrator(s) individually.  In addition, the perpetrator's employer might be held liable to the victim if the facts would show either that (1) the exploitation occurred during the course and within the scope of the perpetrator's employment, or (2) the employer acted negligently or recklessly in supervising and regulating the activities of its perpetrator-employee.

The remedies that could be sought in a case of financial exploitation resulting from  undue influence would typically include one or more of the following: a request for an accounting, a demand for return of assets and setting aside of conveyances, the imposition of a constructive trust, and a demand for money damages and costs.  Consult with an attorney as to the specific remedies that should be sought in a specific case.

As discussed above, as a preliminary step to bringing legal action against the perpetrator, a Guardian of the Estate may have to be appointed to represent the interests of the elderly person who has become legally incapacitated.  In such cases, any person who is interested in the welfare of the elderly person has standing to file a petition with the Orphans’ Court to request that the Court find the elderly person to be an "incapacitated person" and to appoint the petitioner or someone else as Guardian of the Estate.

The Guardian of the Estate could then bring the action against the perpetrator on behalf of the elderly person.  

If the abuse was not discovered until after the victim's death, the victim's heirs can contest a will that was allegedly obtained by undue influence, or seek to recover assets that were wrongfully conveyed during the older person's lifetime. As discussed above, the personal representative of the victim's estate will also have the right to recover such assets.