Anyone involved with the elderly or disabled has special responsibilities under Texas law as well as the laws of other states in the Union. While Burdette & Rice as a Dallas law firm focuses on the civil component of probate, guardianship, and other fiduciary matters under Texas law, this blog post reviews criminal issues vis-a-vis the elderly and disabled.
CRIMINAL ISSUES RELATED TO THE ELDERLY AND DISABLED
Handling the civil component of probate, guardianship, and other fiduciary matters is what we at Burdette & Rice do best. However, it may only be part of making a victim whole again.
Financial and violent crimes against elderly and disabled persons are, unfortunately, not uncommon. Elderly persons are more likely to have a “nest egg;” are more likely to be polite to and trusting of strangers; are more susceptible to promises of cures for ailments, virility, or cognition; may make poor witnesses; and may be less inclined to report crimes because of lack of understanding, shame, or fear of being seen as unable to take care of themselves.
Texas has some criminal statutes that specifically protect the elderly (defined as a person aged 65 or older) and disabled (including incapacitated persons for guardianship purposes).
For example, a person who exploits an elderly or disabled person could be found guilty of a third degree felony, punishable by 2-10 years in prison and fines of up to $10,000. “Exploitation” includes the illegal or improper use of an elderly or disabled person, or his/her resources, for monetary or personal benefit, profit, or gain.
As another example, a person who, by act or omission, causes bodily or mental injury to an elderly or disabled person could be found guilty of a first degree felony, punishable by 5-99 years (or life) in prison and fines of up to $10,000.
Other statutes make an offense against an elderly or disabled person subject to heavier sentences, called “enhanced punishment.” Crimes with these provisions make an offense against an elderly or disabled victim subject to the next higher level of punishment than would otherwise apply.
For example, a crime considered a third degree felony, when perpetrated against an elderly or disabled person, would be considered a second degree felony. Crimes with enhanced punishment provisions include theft, forgery, credit/debit card abuse, misapplication of fiduciary property or property of a financial institution, securing execution of a document by deception and fraudulent use or possession of identifying information.
A statute of particular interest to probate and guardianship practitioners is Texas Penal Code § 32.45, which makes it up to a first degree felony if a person misapplies property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whom the property is held. This type of crime is commonly perpetrated against the elderly and disabled.
Another statute of particular interest is Texas Penal Code § 32.47, which makes it a state fail felony if a person, with intent to defraud or harm another, destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a will or codicil whether or not the maker is alive or dead and whether or not it has been admitted to probate.
What do you do if you suspect that an elderly or disabled person is being abused, neglected, or exploited? State law REQUIRES you to report it, even if your knowledge is obtained during the scope of your employment, even if your professional communications are generally confidential, including an attorney, clergy member, medical practitioner, or social worker. You should notify the Department of Family and Protective Services by calling 800-252-5400, which is available 24 hours a day (see http://www.dfps.state.tx.us/Training/APS_Reporting/default.asp).
In Dallas County, also contact the Elder Financial Safety Center, a joint effort between the Dallas County Probate Courts, the Dallas County District Attorney’s Office (who has three special prosecutors dedicated to prosecuting crimes against the elderly), and The Senior Source (see http://www.dallascounty.org/department/courts/probate/elder_financial/elderfinancial_index.php).
Under Texas law, the elderly and disabled enjoy special protections. In this blog post, we reviewed some of the situations in which an elderly or disabled person may be subject to abuse in a legal sense. Many of these aspects involve financial affairs. Obviously, if you suspect some type of abuse of an elderly and/or disabled person, you should report that to the authorities at once. Financial matters – especially when there is a large inheritance – can be the motivation for abuse in some cases. If you or a loved one is facing a possible dispute over inheritance, reach out to our Dallas-based team of attorneys. Burdette & Rice is a recognized law firm focusing on probate, trust, and estate disputes under Texas law.