How the Brain Makes Seniors Susceptible to Scams

$2.9 billion. That is how much senior Americans lose each and every year to various scams, according to MetLife’s Mature Market Institute. These scams take many different forms, from fake charity donations and false lottery winnings to unnecessary home repairs and outright theft from bank accounts. All those who care about protecting the health, well-being, and finances of local seniors should take the time to talk to loved ones about these issues.

However, it is often very difficult to have conversations with aging parents, grandparents, aunts, uncles, or elderly friends. That is because many seniors are understandably sensitive about their ability to handle their own affairs. After all, they likely spent a lifetime taking care of themselves through the good times and the bad, and it may come off as insensitive to suggest that their mental capacity has deteriorated in any way. The challenge of many of these conversations is one reason why many local residents may put off ensuring their loved ones financial security until it is too late.

This is a mistake. While there may be no way to completely get around some of the challenges of these conversations, they are mandatory nonetheless. In fact, new research into the causes of senior financial exploitation might actually make these conversations a bit more tolerable. That is because brain researchers are finding that susceptibility to scams is not necessarily related to mental capacity but changes in the way the brain operates in old age.

Brain Scans & Financial Scams
According to the latest research published in the Proceedings of the National Academy of Sciences and discussed in an NBC News article, reserachers have found that differences in the way that seniors process visual cues may be at the root of their increased risk of falling for financial scams. Much more work still needs to be completed. However, if verified, the research suggests that general cognitive decline is not necessarily at play when discussing the vulnerabilites of seniors and financial exploitation.
As part of the research, investigators tested volunteers of all ages on their perceptions of faces that were designed to be perceived as “trustworthy” and “untrustworthy.” They then asked participants to rate each face based upon their perceived trustworthiness levels. Researchers found that seniors were far less likely to identify facial cues that were intended to trigger decietfulness (i.e. a false smile).

Hoping to delve deeper, researchers went futher and conducted fMRI scans on participant brains when performing the same facial trustworthiness test. Surprisingly, they found that there were very clear brain activation differences between younger and older adults when examining the faces. In particular, for young people the untrustworthy faces triggered significant activation in a part of the brain known as the anterior insula. The same was not true for seniors This area of the brain is known to be connected to fear and suspicion.

The team summarized by nothering that, “a diminished ‘gut’ response to cues of untrustworthiness may partially underlie older adults’ vulnerability to fraud.”

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Using the Holidays to Check for Elder Financial Exploitation

Elderly Man Loses Thousands in Phone Scam

Why Jury Verdicts Are Worth Preserving

Last week we shared information regarding the Center for Justice & Democracy’s “Briefing Book” on tort litigation. The takeaway from each post was that there remains serious misunderstandings about how many suits are filed and resolved as they relate to various “injury” cases–including lawsuits alleging nursing home abuse and neglect. While those calling for tort reform laws present an image of a justice system run amok, the data shows otherwise. Most people who are injured do not file suit, and even when they do, only a very small percentage go trial. Following a trial, the average verdict amount is usually far lower than the tort proponent supporters suggest. Similarly, punitive damage awards (always touted as a reason that the civil justice sytem is broken) are rarely given out, and, even when they are given out, the total is far lower than any figure that makes newspaper headlines.

In short: don’t believe what you hear about the current state of the system as promulgated by those seeking to “reform” the system.

On top of that, however, it is a mistake simply to play defense on these issues. It is one thing to say that things “aren’t as bad” as others are suggesting. But it it is another to say forcefully that not only is the system “not that bad,” but it is working as exactly as intended and thriving as a critical societal institution. That forceful case is exaclty what we should be making.

The CJ&D briefing book explains why: juries remain the best, impartial system we have to resolve disputes and bring fairness to those hurt by others.

Jury Decision-Making in Tort Cases
For example, the brief shares information from leading academic researchers who study jury behavior. These professionals use systematic analysis to determine exactly how most juries behave, understand their motivations, and figure out if there are any systematic problems. While nothing involving human judgment is 100% without fault, the researchers have found that juries are, on the whole, very adept at parsing through evidence, weighing credibility, and reaching a reasonable resolution based on the information presented to them.

One of the most common charges against juries is that they are systematically “anti-business.” The argument goes that juries are less capable of separating the harm to an injured party from the business-defendant’s potential accountability and/or ability to pay a large award to help the injured party. However, while this argument might be convenient for those seeking to limit the scope of the jury, it is not based on much emperical fact. As the briefing book notes, to the extent that juries do find more accountability for certain “deep-pockets,” it is because of their perception of standards of care. In other words, juries reasonably take a business’s knowlege, experience, and resources into account when determing whether a standard of care was breached causing injury. That standard is somewhat different when the defendant is an individual.

We must continue to share honest information about tort litgiation and juries in order to preserve the rights of all community members to seek redress when they are hurt by the negligence conduct of others.

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The Truth About Torts & Trials

Center for Justice & Democracy Release Tort Litigation Briefing Book

Levin & Perconti Nursing Home Attorney Article on Depositions

Two of the nursing home neglect lawyers at our firm, Steven Levin and Jordan Powell, recently had an extended article published in the December issue of Trial magazine. The article (which can be downloaded in full here) is a guide for fellow attorneys regarding some of the complexities in dealing with depostions in cases where allegations are made of nursing home safety violations and harm to residents. With decades of combined experience on the subject, Attorneys Levin and Powell are able to share helpful information on key aspects of thesee cases, including how to discuss the matter with defense witnesses as well as how to beat back the most common defense tactics in these actions.

Nursing Home Neglect Case Commonalities
The article discusses how most legal cases alleging violation of safety rules follows a standard process-embodied by deviation from one of several requirements outlined in federal nursing home statutes. In general, these requirements can be broken down into five different areas: assessment, planning, implementation, re-evaluation, and communication. Taken together, nursing homes are required to plan for the unique care needs of the residents, properly execute that plan, change the plan if necessary, and always share information with the resident and their families. A breakdown in any one of these areas often leads to an accident or poor care which harms the resident.

Defense Tactics
In most case attorneys defending the nursing home are likely to raise one of several defense arguments that come up time and again. The article provides more in-depth analysis of each, but some include:

*Unavoidable: The most common defense argument is the claim that the five step mode mentioned above was followed and that the harm to the resident occurred anyway. This is where careful analysis and questioning comes into play. If the caregivers admit that any part of the model was not exectuted as well as possible, then the unavoidability argument no longer applies.

*Pre-existing conditions: One of the easiest ways a caregiver can deflecct blame is by suggesting that harm to a resident was caused by something that existed before they entered a nursing home. A resident’s physical weakness or inherent vulnerabilities, the defense may suggest, was a cause of the ultimate harm. However, this is an argumentative fallacy. While many resident’s have pre-existing weaknesses, those comorbidities are not underling causes of harm themselves–just risk factors. The facility is charged with taking those factors into account. If they did not do so or failed to implement their caregiving steps properly, then their negligence was still the cause of the underlying harm.

*Challenging the Standard of Care: Some caregivers seek to deflect their accountability by challenging what the proper standard of care is in any given situation. If they can define the standard as fitting their actions, then they can deflect liability. However, the standards outlined in federal statutes on the matter are pretty straightforward, and it is almost impossible for these caregivers to deny that the specific steps listed in those guidelines are appropriate when asked directly.

The legal professionals at our firm are proud to remain at the forefront of litigation involving nursing home neglect and abuse. If you or anyone you know has suffered harm as a result of inadequate nursing home care, please contact our team to see how we can help.

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New Nursing Home Lawsuit Against Facility “Outsourcing”

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New Nursing Home Lawsuit Against Facility Outsourcing

NBC News published a story this week in a new nursing home lawsuit from out west that challenges a practice used by some long-term care facilities. According to the story, an attorney recently filed suit seeking to throw out part of a law which allowed facilities in that state to outsource their own management. Essentially, the state law allows nursing home chains to pay another company to actually run the day-to-day of the facility. This “managing” entity is paid a percentage of proceeds for this task. However, the lawsuit aruges that this arrangement is in violation of federal law.

Specifically, the suit suggest that federal law prohibits outside entitites (i.e. a “management company”) from operating nursing homes. If that reading of the federal law is true, it might contradict state laws which allow nursing home chains to operate under these businesses models.

Why does this matter for nursing home residents? Some patient safety advocates argue that this arrangement results in funds that could go toward actually improving resident care intsead being funneled to this management company. Importantly, in most cases these management companies are legal entities controlled by the owning business itself. In other words, it is more a complex business maneuvering than efficiency tool.

The attorney who filed this latest suit explained, “It’s just their way of taking 5 percent off the top and leaving the nursing home with insufficient resources so that nursing homes limp along with poor care for patients.”

The problem is that most of the funds used to operate these facilities come from the government in the form of Medicare and Medicaid payments. Those payments are often the bare minimum needed to ensure adequate care each day. However, if 5% of those bare minimum payments are skimmed for “management” fees, then the residents are unlikely to get the adequate care they need. This suit seeks to change that by ensuring more funds end up going to things that actually affect resident lives.

The nursing home chain named in the suit and state public health officials disagree with the claims made, and so it will be interesting to see how this particular matter plays out in the coming weeks and months.

System-Wide Lawsuits
Most nursing home lawsuits relate to individual cases of neglect or abuse. The attorneys at our firm in Chicago have worked on countless lawsuits of this nature, often involving issues like bed sores, falls, low staffing levels, medication errors, and resident on resident violence. These actions are usually filed by family members after they become aware of the inadequate care that their loved ones have received at a particular facility.

However, as this latest story suggests, some suits of this nature relate to different matters altogether. These system-wide suits are often aimed at certain practices or violations of law that many facilities engage in. While less common, these actions can be a helpful way for tens of thousands of nursing home residents to be helped by clarification of the law and enforcement of rules to improve resident care quality.

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Accurate Information About Prevalence of Juries in Tort Cases

Another facet of the Center for Justice & Democracy briefing book that we discussed yesterday invovles misperceptions about cases that go to trial and verdicts. If you ask most community members unfamiliar with the legal system, they might believe that most cases of this sort end with a trial and verdict reached by a judge or jury. That is not true.

Trials Are the Exception
The reality, as outlined in the brief, is that only a fraction of cases that are filed ever make it to trial, most are settled beforehand. This is a sign of the efficiency of the system. After a lawsuit is filed the lawyers for both parties explicitly lay out their arguments and claims. Then, information is collected on both sides to get at the heart of exactly what went on. That information could be in the form of paperwork, interviews with invovled parties, and opinions from experts. More often than not, after that information is collected, both sides are able to reach some sort of agreement. That agreement usually involves one side conceeding the strengths and weaknesses of the case and some amicable settlement decided upon. That ends the matter, without any need for a trial.

In fact, according to some recent data, as few as 3.5% of cases filed ever end in a trial that is resolved by a judge or jury. Therefore, the claims made by proponents of tort reform about a system run amok with juries reaching unfair verdicts and vast inefficiency in the system do not mesh with the facts. That is because the facts show that most cases end in agreements between both sides.

On top of that, the evidence on the system-wide outcome of these cases is far different than is often portrayed by those calling for widespread changes in the civil justice system. For example, as discussed in the CJ&D briefing book, plaintiffs are successful at trial only in 51-56% of cases. This roughly equal split is what one might expect considering that the cases that go to trial are often the closest ones, where both sides have valid points, and impartial third parties are needed to break the disagreement. That percentage would be far different if the cases were mostly frivolous or if juries were always unfairly slanted toward the plaintiff.

And even when they do win, plaintiffs rarely received the sort of large verdicts that make newspaper headlines. Statistics reveal that the about half of plaintiffs who receives a favorable verdict in a tort case is awarded $24,000 or less. The median figure in these cases each year is somewhere around $31,000.

What about punitive damages? These are the awards that go beyond specific compensatory issues like medical bills or pain and suffering. Instead, these awards are meant to punish the wrongdoer, not necessarily help the plaintiff recoup losses. These awards are often targeted by tort reformers as evidence of the unfair nature of the juries and the “windfalls” that go to plaintiffs. As with everything else, the facts suggest otherwise. Far all the attention that punitive damages receive, less than 3% of cases where the case went to trial and the plaintiff’s were successful (already a small number) end with any sort of punitive damage award. And what was the size of the award? According to the briefing book, the average punitive damage award was for $55,000.

None of these statistics are indicative of a system run amok or one that has gotten out of hand. Instead, when faced with this reality, residents should be reminded not to buy into bogus claims made by those who stand to benefit from tort reform at the expense of the legal rights for all consumers.

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New CJ&D Briefing Book Released

The right to a jury trial in tort cases–including some nursing home lawsuits–remains under assault. The good news is that those in favor of protecting the unencumbered right to have impartial members of the community settle disputes have the facts on our side. Most of the claims made by big political interests about the need to take away consumer rights are either greatly misleading or sometimes downright false. That is why one of the main ways to fight back against these efforts is to become educated in the reality of tort litigation in America today.

To help, the Center for Justice & Democracy, a long-standing champion of civil justice rights, published its latest report to help provide succinct, accurate, and important information on the topic. The full report can be downloaded here.

The Truth About Tort Litigation
“Tort” litigation refers to all civil justice lawsuits where things like negligence are involved–nursing home neglect, medical malpractice, etc. There is a misconception that tort litigation is rampant, and that people are filing lawsuits left and right even for trivial issues. That is not true. As the briefing book points out, less than ten percent of Americans who may be injured by another’s negligence even do anything to seek compensation, like file an insurance claim. Even fewer (two percent) ever file a lawsuit. In other words, claims about rampant lawsuits related to frivolous injuries bear little connection to reality.

Why then are court dockets constantly filled?

What many don’t appreciate is that contract cases–not tort lawsuits–make up the bulk of civil law filings. These contract cases are mostly businesses using the system to sue other businesses. Yet, it is the same big business interests that often are the first to rally against tort lawsuits as being frivolous. This is the definition of hypocrisy, criticizing others for doing something you do all the time.

Not only that, but the balance between tort cases and contract cases is only getting more extreme. Right now there are 250% more contract lawsuits filed than tort cases. A study found that over a recent ten year period contract filings rose by 63% while tort filings decreased by 25%. Similarly, data on overall caseloads finds that, of pending cases, tort filings represent only 6% of the cases in most areas. Instead, monetary disputes–debt collections–make up a far larger percentage of filings clogging the dockets–upwards of 70% in some areas.

The take-away: More businesses are using the civil justice system to enfore their rights, less consumer are, and yet business interests are pushing to make it even harder to consumer to do so. It doesn’t take much to realize the unfairness of this overall trajectory. Businesses are more than happy using the system when it makes them money, but when it protects indivduals against the businesses own mistakes, then they argue that the system has run amok.

This is not right in principle or practice. We urge all community members to become informed on the facts of the tort litigation process so that they can share information with friends and family members when these political issues come up in conversations.

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ProPublica List of Ten Most Common Nursing Home Violations

Earlier this year we shared information on a new tool created by ProPublica to review the quality of care at nursing homes across the country. Similar to the CMS “Nursing Home Compare” website, the ProPublica option allows anyone to check on past instances of neglect and misconduct at various facilties–a very handy aid for those families trying to parse through the often-complex details of picking the appropriate long-term care facility for a loved one.

You can check out the Nursing Home Inspect tool for yourself by clicking here.

Most Common Problems at Nursing Homes
Recently, after using the tool to collect data, ProPublica put together an interesting list of the ten most common types of nursing home violations. The list is a handy reminder of the many ways that care can be substandard at these facilities and how resident lives can be placed in jeopardy by problems at these homes. We encourage everyone to head over the the website and view the full list.

All told, the tool incudes a list of 262,500 regulatory violations at homes across the country. These violations stem from inspection reports that are conducted at each facility in different states. We often share examples of some of those violations in Illinois. In our state the inspections are done by the Illinois Department of Public Health. Every quarter the IDPH releases a “Quarterly Violator Report” which included copies of the violations issed in the previous few months and includes access to the actual reports which details what went wrong.

It is a somewhat disheartening process to read the individual stories which led to these violations. It is one thing to hear a citatation for a failure to timely call emergency medical crews. But it is another to understand that the failure resulted in a senior resident forced to sit in their own room while experiencing a significant medical emergency without anyone coming to their aid. It is critical not to forget that many of the violations have human stories behind them. It is much more than rote regulations and mundance paperwork violations–real elderly friends and family are invovled, often suffering needlessly because of these errors.

So what erorrs are most common?

According to the ProPublica report, the number one single violation most commonly issued were for facilities that were not “free of accident hazards.” This may include any number of things, all related to failing to keep the physical premises and individual rooms as safe and secure as they should be for the residents using them. These probems may lead to things like nursing home falls and accidents after resident wandering. All told, well over 17,000 citations for these problems were given out nationwide according to the report.

The second most common problem, with over 14,000 violations, is failure to establsh proper infection control programs. Many senior residents in nursing homes have medical vulnerabilities and weakened immune systems. For this reason, it is paramount that the resident be protected from pathogens that may cause them harm. However, many facilities do not operate as efficiently as possible to minimize the spread of infection or to respond appropriately when infections are identified. For example, many residents develop bed sores which are not properly cared for. Those sores are often infected, with serious, lefe-threatening complications developing as a result.

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Large Jury Verdict to Widow Following Husband’s Nursing Home Neglect Death

It is a story that has affected far too many families. A loved one begins to show serious signs of aging issues, and concerns about wandering, falls, or receiving day-to-day nursing care pile up. Eventually, the care the senior needs becomes too much–husbands, wives, sons, daughters, and others often are unable to provide the assistance necessary. Looking out for their relative’s best interest, they make the difficult choice of finding what they assume to be an appropriate alternative living arrangement. These care facilities are supposed to ensure their loved one remains safe, received the help they need, and are still able to thrive in their golden years.

Sadly, thriving is the last thing many seniors experience. Instead, often as a result of negligence or mistreatment, the seniors suffer various quality of life problems. It sometimes end in serious injuries or even death stemming from that poor care.

That is exactly what seemed to be the case for a family profiled in a recent WPTV news story. Their husband and father had always been full of energy. As a professional wrestling star for more than three decades–from the 1950s to the 1980s–he entertained audiences as his “Chief White Owl” character. As he aged, however, the man began showing signs of cognitive conditions often attributed to aging. Eventually, after beign diagnosed with end-stage senile dementia, his family decided that he needed to be moved into a facility where he could receive the around-the-clock care that he needed.

However, the family was stunned when it began to see the effect that the nursing home care (or lackthereof) had on the once robust and full-of-life professional wrestler. In just over two months at the long-term care facility, the man had lost a staggering 32 pounds. On top of that he was suddenly unable to talk or even walk–things he had no trouble with beforehand. The man had also developed significant bed sores on his heels and tailbone. The family claims that those sores sooon became infected. The infection ultiamtely triggered a serious of medical problems which took the resident’s life.

However, the family did not know about the bedsores until he had already left the facility. It was only later that they learned about the sores, the infection, a previous fall from a wheelchair, the fact that his dentures were lost, and several other incidents indicative of poor care.Tired of complaining about the situation and not getting anything done, the family eventually pulled the man from the home and brought him to a different facility. However, by that time the damage was already done.
Eventually the family filed a lawsuit against the negligent nursing home, seeking to hold them accountable for their misconduct. The case eventually went to trial. Recently the jury returned a verdict in favor of the family, awarding the man’s widow (they had been married for over 50 years) $1.8 million. However, the nursing home is deciding whether or not it will appeal the case, which would delay the family’s receipt of the award.

This case has so many of the tell-tale signs of nursing home neglect: weight loss, rapid deterioration of mental faculties and physical abilies, and the development of bed sores. The lawyers at our firm have worked on countless cases where these issues were a factor. If you live in Chicago or other parts of Illinois and suspect that the care your loved one received at a nursing home was not reasonable, please take a moment to reach out to our office and let us help.

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Bed Rails Come Under Scrutiny

The New York Times published a story recently that will hopefully raise awareness of an issue that has been on the radar of senior safety advocates for years: bed rails. While seemingly innocuous and intended to act as a safety device themselves, bed rails actually increase the risk of harm to those using them. Many seniors with sickness or disabilities are placed in beds with these rails, and some of them suffer serious injury (even death) as a result.

The article shared the heartbreaking story that is similar to experiences by many others. A family made the heartbreaking choice to move their elderly mother into an assisted living facility as she began showing more and more signs of dementia. The move was to protect her, to prevent her from wandering and to ensure that she had the care she needed to stay safe in her golden years. However, instead of providing additional safety, the move ultimatey killed her. Within a few months she was found dead–strangled by the rails that we placed on her bed in the home.

Raising Awareness of Nursing Home Bed Rail Deaths
The daughter of the victim in that case used the tragedy as a spur to learn more about the dangers of bed rails and work to prevent future accidents. She was shocked to learn that while public product safety experts had known about bed rail deaths for years, little was done. The daughter began contacting influential organizations, writing letters, and otherwise trying to get safety professionals to move. Eventually her work paid off, and the federal consumer product safety commissions agreed to study the issue in 2010.

The study revealed that at least 150 people–mostly elderly seniors–were killed as a result of bed rails in recent years. Another 35,000 were injured during the same time. That amounts to several thousand accidents each and every year from a product that is supposed to prevent harm, not cause it. Even then, the statistics are undoubteldy underestimates, because they come only from ER records where bed rails were explicitly listed as a problem. Many cases may involve the rails but fail to be explicitly indicated in records. A separate review from the NYT found that since 1995 there have been 550 bed rail deaths–27 in 2011 alone.

The use of the data to prevent future harm has been slow going. Regulators first took note of the problem in 1995, but even then the policymakers refused to require safety warnings on the products, instead “voluntary guidelines” were issued–but not until 11 years later, in 2006. In addition, there have not been any substantive requirements to increase safety standards on the products. The cost of replacing older bed rails is usually indicated as the main problem.

Another problem is that there is regulatory confusion over who is responsible for ensuring the safety of the rails. Is it a regular consumer product or a medical device? Different agences deal with the safety of each. Claims about its use is to help specifically with Alzheimers and dementia patients suggests it might be a medical device, but otherwise it could be viewed as any other non-medical product.

No matter what the categorization, the attorneys at our firm in Chicago appreciate that there is no excuse for delay and foot dragging when it comes to improving dangerous products and ensuring future patients and nursing home residents are not unexpectedly injured or killed as a result of these rails.

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To Protect and Defraud?

The Mercury News recently reported that a former commander in the Pinole Police Department, and his wife, have been charged with trying to defraud an 82-year-old Pleasanton woman. Matthew Messier, the 36-year-old former police commander was charged with several crimes including four counts of elder abuse. Messier and his wife attempted to defraud the elderly woman by placing her entire estate into a trust under their control.

The victim’s assets were estimated to be between $750,000 and $1 million.

The investigation began in July while Messier was still police commander with the Pinole Police Department. Messier used his position as police commander to gain the victim’s trust. The victim then began depositing funds into a trust controlled by Messiers. Messier had been with the police department since 2001, but he resigned his position October 21 of this year.

This is a difficult case to investigate and prosecute because there is no ”smoking gun” pointing to a specific crime. Instances of elder abuse involving financial crimes can be tricky absent outright fraud. In cases like this one, the investigators must attempt to follow the paper trail to determine exactly what happened. Fortunately, with something like a trust, the investigators can follow the paper trail to determine where the money came from, who it was transferred to, and who controls how it is spent.

In a previous blog post, we discussed various financial scams. It is difficult in many cases to prove any wrongdoing. In other cases, it is difficult to track down the perpetrator because they leave no trace behind. Messier was a respected officer who frequently engaged in public speaking. The victim had reason to believe that she could trust a police officer. After the fact, it looks like a situation ripe for fraud since the victim turned over her assets to a police officer with no experience in dealing with financial matters of this sort.

In many other cases of financial fraud, the perpetrator makes off with large sums of money, so at least it seems that the victim in this case may be able to recover some of her assets. This case highlights the need for increased vigilance against those who seek to defraud the elderly. The reported numbers of financial crimes against the elderly increased over the last couple of years, but that is due in part to an increase in awareness. More people know what to look for and report crimes more frequently than in the past. Friends or relatives need to work with elderly or mentally disabled individuals sooner rather than later to determine the fate of assets. The schemes are becoming more sophisticated so potential victims need to be aware of the danger ahead of time. Individuals need to be educated about potential scams so they can spot them. The authorities need to continue to encourage victims to report crimes.

Financial schemes to defraud the elderly or mentally disabled are a particularly sinister crime that require teamwork from family, friends and the authorities to detect, investigate and stop. If you or a loved one have been the victim of fraud, please contact our offices.

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