While most caretakers for sick and elderly people are honest, occasionally families and friends are forced to deal with a dishonest caretaker who steals a person’s money; pressures him to change a will, trust, or power of attorney; pressures him to sign a deed; isolates him from family members, etc. A recent article highlights this unfortunate fact:
A Newport News [Virginia] woman will serve a fraction of a 30-year prison sentence for stealing $30,000 from a woman she cared for.
Michele Lee Conley, 43, received three-year prison sentences for 10 counts of forgery and uttering after she tricked a 92-year-old York County woman and her husband into writing her multiple paychecks throughout the week and using the couple’s credit card for personal use.
Source: “Caretaker to Serve Three Months for Embezzling $30K from York County Couple” by Ian Brickey, WY Daily, August 9, 2015.
The elderly woman and her husband were fortunate that the caretaker was prosecuted by the York County Commonwealth’s Attorney (the “Commonwealth’s Attorney” is the name given to the prosecutor’s office in Virginia). In a sizable number of instances, prosecutors in Virginia and other states decline to become involved in matters involving allegations of caretaker abuse. This can be frustrating for the family and friends of the potential victim of abuse, and leaves them to fall back on the civil system as the only remedy.
There are numerous reasons for why prosecutors often do not become involved. First, it’s important to state clearly that it’s not that prosecutors want to avoid helping victims of crime. That’s what prosecutors do for a living, and the vast majority of them care deeply about their jobs and are genuinely passionate about prosecuting violations of the law. Rather, prosecutors’ offices are often overworked with handling serious crimes such as murder, assault, drug-related offenses, gang-related offenses, etc. In a world of finite resources, prosecutors can only spread themselves so thin, and they will quite naturally prioritize the violent crimes. Moreover, many prosecutors see caretaker disputes and estate disputes as “civil matters” that can be dealt with through the civil process. What that means is that the victim or his family and friends can retain an attorney and file a lawsuit against the alleged abuser for monetary damages and injunctive relief (as part of a civil lawsuit instead of a criminal prosecution).
Additionally, some prosecutors’ offices can be overwhelmed by the complexity of certain estate disputes. While a straight-forward theft from an elderly person is not overly complicated (and would likely trigger prosecutorial involvement), more opaque and complex schemes – such as pressuring an elderly person over time to change his estate planning documents – present challenges in terms of the time and evidence needed to prove them, which some prosecutors’ offices don’t have.
Finally, a sizable number of estate disputes turn on the language of wills, trusts, financial powers of attorney, medical powers of attorney, etc., and there may be ambiguity in that language that the abuser is appealing to as a basis for his authority to take his actions. In those instances where the caretaker is suspected of acting improperly, but where it’s not very black-and-white based on the estate planning documents, prosecutors’ offices will frequently determine that it’s a civil dispute and exercise their prosecutorial discretion not to become involved. In sum, in cases of straight-forward theft by a caretaker, prosecutors will almost always become involved; in more complicated cases, or in instances where the caretaker attempts to appeal to language in an estate planning document to try to justify his actions (even if that language does not in fact give him authority for his actions), prosecutors will be less likely to become involved.
Some special circumstances warrant mention. In estate disputes involving famous people and governmental officials where a crime may have been committed, prosecutors are traditionally more likely to become involved. The most famous example of this is probably the successful prosecution of Anthony Marshall in New York for grand theft larceny for what prosecutors alleged was his scheme to pressure his well-known mother – socialite and philanthropist Brooke Astor – to make several amendments to her will to benefit him in the amount of millions of dollars.
Unfortunately, instances such as the Marshall prosecution are rare. Given the traditional reluctance of prosecutors to become involved in estate disputes and caretaker disputes, family members and friends should seek out an estate litigation attorney who can advise them of the merits of filing a civil action against the unethical caretaker, as well as help counsel them on how to deal with the prosecutor’s office in order to maximize the odds that the prosecutor will take action with a criminal prosecution.