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Jail CellMany trust and estate disputes in Sacramento County Superior Court and elsewhere involve financial elder abuse. Concerned family members may sue the wrongdoer in civil court to recover monetary damages. But what about criminal penalties? When does the “bad guy” (or gal) end up in jail?

While many of my clients are rightfully outraged about the family member or interloper who has stolen money from a vulnerable elder, criminal prosecution is relatively unusual. Our criminal laws, including California Penal Code section 368(d), prohibit defrauding an elder but our prosecutors seldom prosecute those who could go to prison.

Juan Antúnez, a Florida lawyer who blogs about trust and estate cases in the Sunshine State, has written thoughtful pieces this year about the criminalization of inheritance litigation.

In one post, he tells the story of a stockbroker sentenced to seven years in prison for exploiting an elderly person. Mary Teris had a mother/daughter relationship with Cynthia Franke, her stockbroker and friend of over 30 years. Teris amended her trust to favor Franke as a residuary beneficiary, offering plausible explanations to the estate planning attorney for the amendment. The Florida appellate court reversed the conviction on technical reasons, while also questioning whether Franke’s conduct fell within the purview of Florida’s elder exploitation statute. The takeaway Antúnez offers: “if you’re a trusts and estates lawyer and someone involved in a case somehow involves Adult Protective Services, criminal prosecution is a risk you need to incorporate in your thinking, no matter how far fetched the alleged ‘crime’ may seem.”

Closer to home in Sacramento, the Nevada Attorney General’s Office issued a press release on July 12, 2016, announcing the arrest of Wade Fordin on charges of theft and exploitation of an older person. According to the release, the Nevada court appointed Fordin as permanent guardian (aka “conservator” in California parlance) of his 80-year-old mother’s estate. Fordin then allegedly converted over $6,000 of his mother’s funds for his own personal use.

What strikes me about the Fordin case is how often similar cases go unprosecuted in California, even when much larger sums of money are stolen from vulnerable elders by family members and others in positions of trust. Our 58 district attorneys have plenty of non-financial crimes to pursue and generally allocate few resources to financial elder abuse.

That’s not to say we have zero prosecution. I was involved on the civil side of an elder financial abuse case prosecuted criminally by California’s Bureau of Medi-Cal Fraud and Elder Abuse in Placer County Superior Court. Delbert “Joe” Modlin ultimately pled guilty to conspiracy to commit forgery, his license to practice law in California has been suspended, and it appears he will be disbarred.

When a client wants to refer an elder financial abuse matter for criminal prosecution, a lawyer can help gather information to submit to a prosecutor. A well-organized presentation will enhance the prospect of prosecution. Yet, given the scarcity of resources, most victims and their family members will have to pursue their own civil claims through the court system to seek justice.