The Montana Elder and Persons with Developmental Disabilities Act was intended to protect especially vulnerable citizens. But the statute isn’t used as often as it should be in criminal cases.
That’s because present law requires not only that exploitation or abuse be proven but also that the state prove the victim was “unable to provide personal protection from abuse, sexual abuse, neglect or exploitation because of a mental or physical impairment or because of frailties or dependencies brought on by age.”
Yellowstone County Attorney Scott Twito wants to delete that clause from the statute. Additionally, Twito proposes adding a minimum prison term of one year for people convicted in cases involving more than $25,000 in victim assets. Present law doesn’t set a minimum prison term, but allows a maximum penalty of $50,000 fine, 10 years in prison or both. Twito’s proposal wouldn’t change the court’s options on fines or maximum prison terms.
Twito said he has prosecuted cases under the elder abuse act, but often has chosen to bring charges instead under other criminal statutes for theft, forgery or assault. Penalties aren’t any greater under the abuse act.
Simplifying the definition of “elderly” to mean a person 65 or older would make prosecution under the act more likely, Twito said. And when the law is used to hold these offenders accountable, it will raise awareness of the problem.
Sen. John Brenden, R-Scobey, has requested a draft bill to revise the elder abuse act as Twito recommends.
Meanwhile, Rep.-elect Kelly McCarthy, D-Billings, has requested two bill drafts aimed at protecting older adults and people with disabilities. First, McCarthy proposes requiring background checks for all workers caring for elderly or disabled people. Second, he proposes creating an offender registry to track those convicted of abuse or exploiting elderly or disabled Montanans.
McCarthy’s registry idea would be more helpful if more cases of abuse and exploitation were identified as elder/disabled person abuse, which Brenden’s bill would encourage.
It’s also important to remember that most elder abuse is perpetrated by someone the victim knows and trusts; often it’s a family member. A registry would help draw attention to this all-to-common type of crime, but it would not necessarily protect against the people most likely to offend their own relatives.
According to a 2011 New York state study cited in the January issue of Consumer Reports, seniors surveyed mentioned being victims of financial exploitation more frequently than any other type of abuse.
A study by MetLife Mature Market Institute found that strangers were slightly more likely than family members to exploit elders financially. However, cases of family member exploitation involved larger amounts of money, on average.
Consumer Reports warns that financial exploitation can be a prelude to physical abuse.
Although these crimes may involve only family members, taxpayers are at risk, too. Consumer Reports cited a study conducted this year by the state of Utah that found older financial abuse victims who ended up in the state Medicaid program had lost an average of $480,000. These victims could now cost the state $9 million for their care as indigents.
By 2025, Montana will have the fifth oldest population among the 50 states. Now is the time for lawmakers to update state law to better protect this growing population.