[The following article was written by Matthew Parker, attorney with my Pennsylvania law firm Marshall, Parker and Weber]
Elder abuse is one of the most under reported crimes in our country. Even the reported cases are difficult to prosecute. Older adults are financially exploited through telemarketing, e-mail scams and by those who are supposed to look after the senior’s affairs, such as court appointed guardians.
A court appointed guardian is named by a judge in the court of common pleas where the incapacitated person resides. The guardian is often a family member who agrees to represent an incapacitated person who can no longer make decisions about their personal and financial affairs. After a court hearing, the court appointed guardian is given considerable control over the finances and personal decisions of the incapacitated person. The oversight of the guardian is limited to annual reports that generally report the status of the finances and physical condition of the incapacitated person.
There are many honorable guardians who faithfully carry out their duties and act in the best interest of the person they are appointed to represent. Unfortunately, of the estimated 1.3 million guardians in our country, there are unscrupulous guardians who are financially exploiting the elderly. There are stories of abuse involving close family members, such as the case of decorated World War II Veteran Robert Matava, whose own son financially exploited him. Part of the new legislation mentioned below is named after the late Robert Matava.
Under the bi-partisan “Elder Abuse Prevention & Protection Act” that has passed the House and the Senate (Senate Bill S. 178), the Department of Justice would assign an Assistant United States Attorney to each federal judicial district to investigate reports of wrongdoing by guardians. These attorneys would be empowered to bring in specially trained FBI agents to help investigate the complaints. There would also be a system of information sharing between federal prosecutors in each state, facilitated by the Department of Justice.
While the legislation does not change the current system of guardianship in Pennsylvania, it does expand Federal involvement in prosecution of guardians. The legislation also requires the Department of Justice to publish best practices for improving state guardianship proceedings, specifically as it relates to elder abuse. This may lead to changes in the oversight of guardians in Pennsylvania.
Additional provisions in the Act target telemarketing and e-mail marketing to seniors by increasing criminal penalties for related marketing crimes committed against those over age 55. Those enhanced penalties also apply to health care fraud.
As of October 17, 2017 the bill was on the President’s desk to be signed into law.