Elder Abuse, Financial Exploitation, and Undue Influence

Elder abuse in the form of financial exploitation can be devastating to the victims and their families.  It is pervasive throughout New Mexico and the nation. Most of us are familiar with the harm that can be caused by telephone scams or overly friendly neighbors and caregivers, who may persuade older adults to hand over funds or change their wills. Financial exploitation also arises in the context of undue influence – pressure exerted subtly or not so subtly by one who is in a confidential relationship with an older adult with diminished capacity. Undue influence can result in the misuse of powers of attorney; inappropriate guardianships; illegal transfers of property; changes to wills, trusts and other estate planning documents and outright fraud and theft. Undue influence and the crimes that result are difficult to prove and are often unreported by victims and professionals.

New Mexico has enacted the Adult Protective Services Act that, among other things, imposes a duty to report elder abuse and financial exploitation on “any person, including financial institutions, having reasonable cause to believe that an incapacitated adult is being abused, neglected or exploited . . .” to the Adult Protective Services Department. In addition, the New Mexico Legislature has enacted the Resident Abuse and Neglect Act, which criminalizes the abuse, neglect and/or financial exploitation of residents of residential facilities and nursing homes.

These laws are important steps in the process of establish standards for addressing the problem of elder abuse but State resources are scarce and agencies are underfunded and often have a difficult time handling the many cases assigned to them for investigation.

If you suspect that your family member or an older adult friend is being exploited, you may want to contact Adult Protective Services and request an investigation. If you suspect that one of your own family members is being pressured to change a will or other estate planning document you may want to contact your attorney to understand what options are available to you to prevent the abuse or exploitation.