Law Review: Why so many financial crimes against elderly go unpunished

Gladys Willard died at 97, leaving her estate to Emmanuel United Methodist Church of Penns Grove, N.J., where she and her husband, who had passed away a few years before, had long been members.

Her will was a simple document instructing the executor to sell her house and cars and pay whatever bills remained before writing a check to the church.

But when church leaders tried to find out what was left in Willard's estate from her executor, Judith Karr, a local lawyer, they hit a brick wall.

After repeated requests for an accounting got them nowhere, they turned the matter over to a lawyer named John D. Jordan, who had briefly advised Willard a few years earlier and was familiar with her finances. He eventually got a court order forcing Karr to turn over the records.

The first documents formed a skeletal account of expenditures, including $40,000 in legal fees, which he thought was excessive. But Jordan was most struck by how little was left of Willard's assets, which he knew from previous consultations once totaled about a half-million dollars.

It was only after he obtained copies of Willard's tax returns that he finally understood where the money had gone. They showed that Karr had been selling tens of thousands of dollars' worth of Willard's stocks and bonds. But relatively little of that money ended up in Willard's bank account.

That was the beginning of the end for Karr. Jordan went to the Salem County Prosecutor's Office, which launched its own investigation. Karr eventually pleaded guilty to criminal charges stemming from the case and agreed to make restitution to the church.

"I just didn't have any concept that a theft had taken place until I saw the tax returns," said Jordan, of Pennsville, N.J., where he is also a municipal court judge.

Among the lawyers and social-services experts who help elderly clients manage their affairs, what is surprising about cases such as Karr's is not so much that they happen. There is plenty of statistical evidence showing that thefts from isolated elderly victims are commonplace and occur at every socioeconomic level, from the most moneyed neighborhoods of the Main Line to the poorest blocks of North Philadelphia and Camden.

What is unusual is that Karr was caught and criminally prosecuted. A Justice Department study last year estimated that one in 20 people over the age of 60 suffered some form of financial abuse or mistreatment at the hands of relatives in the preceding year, a finding that would translate into millions of aging people whose pockets were being picked by family members alone.

Part of the problem is that such financial exploitation has not been the highest priority for many law enforcement jurisdictions. Thefts from the elderly, particularly if the perpetrators are family members, often are viewed more as family disputes than crimes.

Some places are more aggressive than others. Both Bucks and Montgomery Counties prosecute hundreds of cases of fraud against elderly victims, often for as little as a few hundred dollars.

But others, like Philadelphia, do a kind of law enforcement triage. Former District Attorney Lynne M. Abraham testified when she was the city's top prosecutor that her office would not pursue such financial crimes involving less than $50,000; the office was simply stretched too thin.

But even with more fulsome resources, these cases are difficult to make under the best of circumstances.

It might have been Karr's bad luck that Emmanuel United Methodist reached out to Jordan, who had been familiar with Willard's finances and who knew how much money she had in the first place. Another lawyer lacking the same information might not have asked key additional questions.

That rip-off artists who focus on the frail elderly often fly under the radar is well-established. Their victims are emotionally vulnerable, often suffer cognitive decline, and frequently are alone.

The victims typically do not have close family members, or if they have children and grandchildren, are estranged from them. The transactions take place behind closed doors. And unraveling them can take years. On top of that, prosecutors say, making a criminal case is time-consuming and difficult because victims typically have suffered mental decline or have passed away.

"You can spend your whole lifetime trying to get these cases in shape," Abraham said.

That was the challenge that faced siblings Jon Kogen and Allie Leibowitz when they tried to get an accounting from lawyer Robert Welch of their mother's assets. Their mother, Rose Kogen, had given Welch power of attorney in 1999, while she was staying in a Cherry Hill nursing home. Welch used the sweeping legal authority that document conveys to set up an irrevocable trust in which he placed Kogen's assets, then valued at about $1.2 million.

He named himself trustee, effectively taking control of everything she had. Rose Kogen died a short time later, and when the children tried to get an accounting from Welch, he erected a stone wall. Within a few short years, Welch had drained most of the money from her account.

The Philadelphia district attorney, the IRS, the Pennsylvania attorney general, the U.S. Attorney's Office in Philadelphia, and the Pennsylvania Supreme Court Disciplinary Board all looked into Welch's dealings with Rose Kogen. Nothing came of those inquiries until Welch gave up his license to practice law in 2008 amid a probe by the disciplinary board.

He admitted that he had used her money for his own benefit, had engaged in misconduct, and had violated conflict-of-interest rules.

Abraham, who was district attorney at the time, said she wasn't familiar with the details, but she maintained that as a general rule it is very difficult to make a criminal case where the elderly victim is in decline or has passed away.

In the end, Jon Kogen and Allie Leibowitz sued Welch and won. Welch was ordered to repay the Kogen trust with interest. But a law firm hired to help collect on the judgment concluded the effort likely would be unavailing because he had no assets.

If nothing else, cases such as these are cautionary tales, lawyer John Jordan said. Before elderly clients sign away control of their financial affairs, they need to be very sure whom they are dealing with.

Otherwise, the results can be disastrous.