Updates to Family Offense Petition Provide New Protections From Financial Exploitation

Reflecting the growing problem of elder abuse and the need to protect victims, older adults can now seek protection from financial exploitation in an unexpected venue: Family Court. In December 2013 three new offenses were added to New York State family offense petitions. These offenses (identity theft, coercion, and grand larceny in the 3rd or 4th degree) are designed to protect against financial crimes. The inclusion of economic abuse into offenses has significant potential in combating financial exploitation of the elderly.

A family offense petition may only be filed against someone whose relationship with the petitioner qualifies as familial. This includes a blood relation (parent and child, parent and grandchild, etc.), marriage, having a child in common, an intimate relationship that goes beyond simply a casual social or business acquaintance, or persons who currently live or have lived together. This would not include interactions associated with consumer scams, although these are also financial exploitation. Prior to December 2013 the offenses in a family offense petition were not designed to protect against financial crimes. Rather, offenses focused on physical and emotional crimes including assault, harassment, disorderly conduct, stalking, and reckless endangerment. Although financial exploitation of an elderly person is often accompanied by other forms of abuse, it is also often the first step towards asserting control over the victim.

The updated family offense petition includes identity theft in the first, second and third degree; coercion in the second degree; and grand larceny in the third or fourth degree:

  1. Identity Theft

Identity theft occurs when a person knowingly presents themselves as another person, either by acting as or, more commonly, using personal identifying information of the other person to obtain some gain for themselves at the cost of financial loss to the victim. This is increasingly common when family members or other caretakers use the personal information of an elderly person, including social security number, date of birth, address, to open credit cards in their names without their knowledge or consent, or use ATM or debit cards to take out money without knowledge or consent. In addition to issuing an order of protection to stop the identity theft, the court is also authorized to order the respondent to return certain documents including credit and debit cards to the victim.

  1. Coercion

Coercion in the second degree is defined by New York Penal Law as compelling or inducing a person to do something that they have a legal right to abstain from. This is usually accompanied by threats including threats of physical violence, property damage, blackmail, etc. The respondent usually stands to achieve some gain, either material such as money/access to finances or agency over the victim. The victim of coercion could be harmed materially with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships. An example of coercion includes an adult child demanding money from their parents and threatening to put the parent in a nursing home if they do not comply with the demand.

  1. Grand larceny

Grand larceny is when a person steals property. It is third degree if the property value is in excess of $3,000; and fourth degree when the property stolen exceeds $1,000 in value or the property is a debit or credit card, public record, firearm, motor vehicle, etc. or any property obtained by extortion regardless of value. This could be used in a situation where a family member is living with or frequently visiting an elderly person and, while they are not physically violent or harassing the person, they are taking money or possessions. Bringing a family offense petition with the offense of Grand larceny can offer the elderly person immediate protection from this theft.

These updates to the family offense petition are important to utilize when assisting an older adult dealing with exploitation. Filing a petition in family court does not prevent one from pursuing a criminal charge on the same incident. However, orders of protection in family court can be issued on an ex-parte basis the same day they are filed; that is, filing in family court can stop the exploitation sooner than simply filing a police report and waiting for an investigation to proceed. Often, in familial matters a victim may wish for an order of protection, but decline to pursue criminal charges. Victims now have the option to get an order of protection for economic abuse without having to pursue criminal charges. However, if a respondent violates an order of protection they are subject to criminal penalties.

The updated Family Offense Petition is a useful method of protecting older adults who are victims of elder mistreatment, both physical and financial.

 

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