Undue Influence is Not a Crime
So said a California appeals court last month in ruling on the case of a 78-year-old San Mateo man who wrote over $660,000 in checks to a friend and helper.
Norman Roussey, who had an "anxiety disorder," lived with his mother until her death a decade ago. Roussey met Ronald Brock, a law school graduate who worked for his lawyer, while he was settling his mother's estate. Brock became his companion, driver and helper. He saw Rossey through anxiety attacks.
He also wrote checks to himself from Roussey's checkbook, followed him around the house pestering him to sign until he did, and told him not to tell anyone. He also kept money that Roussey had given him to prepare his tax returns, make mortgage payments, and invest in real estate. As a result, Roussey ended up losing his home and much of his inheritance. When Brock got Roussey to cancel an annuity he had written to benefit a niece, she contacted APS and the case was reported to the police. Brock was charged with theft.
The case went to court in 2004. The prosecutor, Melissa McKowan, argued that Brock had used undue influence to manipulate Roussey. It was clearly a test case. Undue influence for profit has been the grounds for civil actions like overturning wills but there’s no existing law that says you can commit theft by undue influence. After conflicting testimony by psychiatric witnesses about Roussey's mental state, Superior Court Judge Joseph Bergeron told jurors they could convict Brock of theft by undue influence if they concluded that he’d taken unfair advantage of Roussey's "weakness of mind.” They did, and Brock was sentenced to five years in prison and ordered to return the money.
But in last month’s ruling, the appeals court overturned the theft conviction on that grounds that obtaining money by consent is only theft if the defendant uses coercion or misrepresentation and that Judge Bergeron erred in allowing a conviction for conduct that was "little more than overpersuasion." Brock had already completed his prison sentence with time off for good behavior but hasn’t repaid the money. Roussey will seek repayment in a civil suit.
San Diego Prosecutor Paul Greenwood, who sees cases like these often, isn’t disappointed. “It’s a major step forward that we even have a court of appeal decision on this theory of theft. Ten years ago, this would have been unimaginable. Undue influence is an area that remains undefined, and I’m thankful that we have prosecutors in California like Melissa who are gutsy enough to push the envelope and take a case like this to trial. It shows that California is ready to accept and embrace the concept that undue influence is criminal and needs to be addressed in the criminal arena. The decision actually provides an impetus for a change in the law, which, hopefully, will follow.
Wednesday, November 08, 2006
Meditations on Mediation
My old friend Fred Hertz is arguably the nation’s leading expert on “gay divorce.” A lawyer, he represents partners in break-ups and has written a book on the subject, been interviewed on NPR, appeared on Oprah, and is frequently quoted in the press.
Tuesday, October 24, 2006
Archstone Foundation Creates Community of Contractors
Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.
Wednesday, October 11, 2006
Perpetrators with Dementias
A couple years ago, a friend who runs a dementia care program asked me to talk to her staff following a tragedy involving a client, a man with Alzheimer’s disease, who'd killed his wife. The staff was understandably upset. But what made matters worse was that some felt they’d seen it coming.
Tuesday, September 26, 2006
Synchronicity, Plumbers and Elder Abuse
Yesterday, I was composing a laundry list of the various disciplines and professionals that have a role to play in stopping elder abuse for a book I’m writing. It included all varieties of health and mental health care providers, bankers, judges, clergy, entomologists (don’t ask), auditors, mail carriers, social scientists and many, many more.
Wednesday, September 20, 2006
Elder ID Theft: Should We be Concerned?
Traditionally, those of us in the field of elder abuse prevention haven’t dealt with “consumer” crimes like telemarketing scams or identity theft. There was no evidence to suggest that elders were targeted, and some studies even suggested that elders were less likely than younger people to be victimized. Besides, our focus was on abuse by family members and acquaintances.
Tuesday, August 22, 2006
Follow-up on Government-Subsidized Elder Abuse
Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:
Thursday, August 17, 2006
Consumer Choice or Government-Subsidized Elder Abuse?
Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”
Monday, July 24, 2006
Saying Goodbye to an Elder Champion
When Bruce Coleman retires from the Royal Canadian Mounted Police at the end of the month, it will be a tremendous loss for American elders and their advocates. As coordinator of “Project Emptor,” a position he’s held since 2004, Bruce has helped countless victims and “would be” victims of telemarketing fraud. Project Emptor, as in caveat emptor, Latin for "buyer beware," intercepts packages and mail that contain “bait letters” from telemarketers and checks or money orders from victims.
Monday, July 10, 2006
Offenders, Victims and Restorative Justice
Last month, I presented at the Offender Treatment, Victim Services, Restorative Justice conference in Miami, which was sponsored by the Institute of Evidence-Based and Best Practices. The conference was a bold one–it’s not that usual to bring victims’ and offenders’ advocates together, and when you throw in sessions on applying restorative justice (RJ) to domestic violence (DV), you know they were pushing the limits.
Monday, June 26, 2006
Remembering Rosalie Wolf
It’s hard to believe that today marks the fifth anniversary of Rosalie Wolf’s death. For many of us, her presence is still very much felt. Almost daily, we see citations to her work, references to JEAN, and news about the organizations she spearheaded and the awards she inspired.
Tuesday, June 20, 2006
Long Distance Undue Influence
Last week, San Diego prosecutor Paul Greenwood posted a message to NCEA’s list serve about an “articulate, coherent and charming” elderly woman who’d sent over $50,000 to telemarketers in Canada despite being warned repeatedly that they were crooks. She described feeling “hypnotized.” It reminded me of when Dennis Morris, a San Francisco prosecutor, came to a meeting of our multidisciplinary team more than a decade ago and asked if anyone knew of an expert in brainwashing.
Tuesday, June 13, 2006
Criminal Caregivers
Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees. But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy.
Tuesday, May 30, 2006
Raising the Bar for Elder Abuse Research: Medline accepts JEAN
Kudos to Terry Fulmer, editor of the Journal of Elder Abuse & Neglect (JEAN), and members of her editorial board who successfully got JEAN included among the publications Medline indexes. Medline is the National Library of Medicine's searchable database of publications and is used by researchers, health care practitioners, educators, administrators and students around the world.
Wednesday, May 24, 2006
Ageism, Elder Abuse and Social Justice
It’s not surprising that Paul Kleyman would take offense at a “Close to Home” cartoon that ran in a recent edition of the Washington Post. In it, an elderly bald man is reading a tabloid called Aging Today, which has a wrinkled, swimsuit-clad elderly woman on its cover under the banner "1st annual swimsuit edition.” The cartoon’s caption is “A dark day in publishing.”
Monday, May 15, 2006
Walmart Benefits from Restitution Reform
The other day, I was updating a handout I use for presentations on financial abuse and decided to check up on a project I list in the "Best Practices” section. It's a program created to revamp Vermont’s restitution recovery system, which got started after a 2001 state auditor's report revealed that only 13 cents of every dollar owed for restitution had been collected during the previous year.
Norman Roussey, who had an "anxiety disorder," lived with his mother until her death a decade ago. Roussey met Ronald Brock, a law school graduate who worked for his lawyer, while he was settling his mother's estate. Brock became his companion, driver and helper. He saw Rossey through anxiety attacks.
He also wrote checks to himself from Roussey's checkbook, followed him around the house pestering him to sign until he did, and told him not to tell anyone. He also kept money that Roussey had given him to prepare his tax returns, make mortgage payments, and invest in real estate. As a result, Roussey ended up losing his home and much of his inheritance. When Brock got Roussey to cancel an annuity he had written to benefit a niece, she contacted APS and the case was reported to the police. Brock was charged with theft.
The case went to court in 2004. The prosecutor, Melissa McKowan, argued that Brock had used undue influence to manipulate Roussey. It was clearly a test case. Undue influence for profit has been the grounds for civil actions like overturning wills but there’s no existing law that says you can commit theft by undue influence. After conflicting testimony by psychiatric witnesses about Roussey's mental state, Superior Court Judge Joseph Bergeron told jurors they could convict Brock of theft by undue influence if they concluded that he’d taken unfair advantage of Roussey's "weakness of mind.” They did, and Brock was sentenced to five years in prison and ordered to return the money.
But in last month’s ruling, the appeals court overturned the theft conviction on that grounds that obtaining money by consent is only theft if the defendant uses coercion or misrepresentation and that Judge Bergeron erred in allowing a conviction for conduct that was "little more than overpersuasion." Brock had already completed his prison sentence with time off for good behavior but hasn’t repaid the money. Roussey will seek repayment in a civil suit.
San Diego Prosecutor Paul Greenwood, who sees cases like these often, isn’t disappointed. “It’s a major step forward that we even have a court of appeal decision on this theory of theft. Ten years ago, this would have been unimaginable. Undue influence is an area that remains undefined, and I’m thankful that we have prosecutors in California like Melissa who are gutsy enough to push the envelope and take a case like this to trial. It shows that California is ready to accept and embrace the concept that undue influence is criminal and needs to be addressed in the criminal arena. The decision actually provides an impetus for a change in the law, which, hopefully, will follow.
Wednesday, November 08, 2006
Meditations on Mediation
My old friend Fred Hertz is arguably the nation’s leading expert on “gay divorce.” A lawyer, he represents partners in break-ups and has written a book on the subject, been interviewed on NPR, appeared on Oprah, and is frequently quoted in the press.
Tuesday, October 24, 2006
Archstone Foundation Creates Community of Contractors
Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.
Wednesday, October 11, 2006
Perpetrators with Dementias
A couple years ago, a friend who runs a dementia care program asked me to talk to her staff following a tragedy involving a client, a man with Alzheimer’s disease, who'd killed his wife. The staff was understandably upset. But what made matters worse was that some felt they’d seen it coming.
Tuesday, September 26, 2006
Synchronicity, Plumbers and Elder Abuse
Yesterday, I was composing a laundry list of the various disciplines and professionals that have a role to play in stopping elder abuse for a book I’m writing. It included all varieties of health and mental health care providers, bankers, judges, clergy, entomologists (don’t ask), auditors, mail carriers, social scientists and many, many more.
Wednesday, September 20, 2006
Elder ID Theft: Should We be Concerned?
Traditionally, those of us in the field of elder abuse prevention haven’t dealt with “consumer” crimes like telemarketing scams or identity theft. There was no evidence to suggest that elders were targeted, and some studies even suggested that elders were less likely than younger people to be victimized. Besides, our focus was on abuse by family members and acquaintances.
Tuesday, August 22, 2006
Follow-up on Government-Subsidized Elder Abuse
Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:
Thursday, August 17, 2006
Consumer Choice or Government-Subsidized Elder Abuse?
Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”
Monday, July 24, 2006
Saying Goodbye to an Elder Champion
When Bruce Coleman retires from the Royal Canadian Mounted Police at the end of the month, it will be a tremendous loss for American elders and their advocates. As coordinator of “Project Emptor,” a position he’s held since 2004, Bruce has helped countless victims and “would be” victims of telemarketing fraud. Project Emptor, as in caveat emptor, Latin for "buyer beware," intercepts packages and mail that contain “bait letters” from telemarketers and checks or money orders from victims.
Monday, July 10, 2006
Offenders, Victims and Restorative Justice
Last month, I presented at the Offender Treatment, Victim Services, Restorative Justice conference in Miami, which was sponsored by the Institute of Evidence-Based and Best Practices. The conference was a bold one–it’s not that usual to bring victims’ and offenders’ advocates together, and when you throw in sessions on applying restorative justice (RJ) to domestic violence (DV), you know they were pushing the limits.
Monday, June 26, 2006
Remembering Rosalie Wolf
It’s hard to believe that today marks the fifth anniversary of Rosalie Wolf’s death. For many of us, her presence is still very much felt. Almost daily, we see citations to her work, references to JEAN, and news about the organizations she spearheaded and the awards she inspired.
Tuesday, June 20, 2006
Long Distance Undue Influence
Last week, San Diego prosecutor Paul Greenwood posted a message to NCEA’s list serve about an “articulate, coherent and charming” elderly woman who’d sent over $50,000 to telemarketers in Canada despite being warned repeatedly that they were crooks. She described feeling “hypnotized.” It reminded me of when Dennis Morris, a San Francisco prosecutor, came to a meeting of our multidisciplinary team more than a decade ago and asked if anyone knew of an expert in brainwashing.
Tuesday, June 13, 2006
Criminal Caregivers
Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees. But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy.
Tuesday, May 30, 2006
Raising the Bar for Elder Abuse Research: Medline accepts JEAN
Kudos to Terry Fulmer, editor of the Journal of Elder Abuse & Neglect (JEAN), and members of her editorial board who successfully got JEAN included among the publications Medline indexes. Medline is the National Library of Medicine's searchable database of publications and is used by researchers, health care practitioners, educators, administrators and students around the world.
Wednesday, May 24, 2006
Ageism, Elder Abuse and Social Justice
It’s not surprising that Paul Kleyman would take offense at a “Close to Home” cartoon that ran in a recent edition of the Washington Post. In it, an elderly bald man is reading a tabloid called Aging Today, which has a wrinkled, swimsuit-clad elderly woman on its cover under the banner "1st annual swimsuit edition.” The cartoon’s caption is “A dark day in publishing.”
Monday, May 15, 2006
Walmart Benefits from Restitution Reform
The other day, I was updating a handout I use for presentations on financial abuse and decided to check up on a project I list in the "Best Practices” section. It's a program created to revamp Vermont’s restitution recovery system, which got started after a 2001 state auditor's report revealed that only 13 cents of every dollar owed for restitution had been collected during the previous year.
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