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RICHMOND--Advocates of tougher laws against financial exploitation of the elderly and mentally incapacitated will press their case in the General Assembly again in 2013, this time with the imprimatur of the Virginia State Crime Commission.
Legislation dealing with the issue has failed several years in a row as lawmakers struggled to protect the vulnerable without making criminals out of well-intentioned caregivers, family members and service providers who might unwittingly enrich themselves at the expense of a person lacking the mental capacity to make a rational business decision.
Eleven bills introduced in the 2012 session failed to make it to the governor's desk. Del. Robert B. Bell, chairman of the crime commission, asked the organization's staff to review the issue and make recommendations for the session that begins in January. The commission received the staff's report in November and has since endorsed a proposal to create a new statute specifically targeting financial crimes against incapacitated adults.
"The goal would be that if you knew someone was mentally incapacitated and you used that mental incapacity to take something from them, that transaction might be fraud," said Bell, R-Albemarle. "If you didn't know about the incapacity, it wouldn't apply."
Virginia prosecutors historically have relied on broader larceny, fraud, embezzlement and check forgery laws to go after those who rip off mentally incapacitated victims. Those laws have not been sufficient, however, when alleged perpetrators demonstrate they obtained consent for the property transfer.
Michael Huberman, a Henrico County deputy commonwealth's attorney, said he has run into that problem a couple of times recently. In one case, a female acquaintance of an elderly man with Alzheimer's disease accompanied him to the bank and had him withdraw money for a shopping spree. She then put him up in a hotel overnight, picked him up the next morning and took him to a jewelry store, where she told a sales associate that she and the man were getting married. The man stood by helplessly while she bought a ring with his money.
Huberman said the woman and her victim were at a Social Security office preparing to register a change of address so his checks could be sent to her when police finally caught up with them.
"We couldn't prove financial exploitation because the victim was there and consented to these transactions," Huberman said. The woman was only convicted of a misdemeanor neglect charge for abandoning the man at the hotel, but the judge--appalled by the circumstances--took the unusual step of giving her jail time for a first offense, Huberman said.
"It's definitely a growing problem," Huberman said. "It's only going to get worse, especially with the baby boomers and the tight economy."