Case Story: Setting the Record straight about exploiting a vulnerable adult

DISCLAIMER:

CASE RESULTS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.

There’s an old adage that says “Excuses are the nails used to build a house of failure.”

What it’s meant to convey is that if you constantly make excuses to avoid responsibility, you’ll never be successful. But this sentiment was on full display in a case we handled against Clay County Social Services.

Social Services believed our client was financially exploiting her dad, who was elderly, had dementia, and lived in a nursing home. But that belief was mistaken, as we tried to explain time and again.

Unwilling to relent—or take responsibility for their mistaken beliefs—the County persisted in their charges of exploitation against our client.

So our client retained our firm and we got to work showing the many ways the state had built a house of failure. We eventually succeeded, but not before a multiple-day hearing and extensive post-hearing briefing.

Here’s how we did it.

The Facts

Our client was power of attorney for her elderly and disabled father. She was also the joint account owner on each of his bank accounts, something that occurred long before he became disabled.

At the time this all happened, her father was living in a nursing home, struggling with dementia and a host of other health issues. Given the issues were related to his military service, he was receiving monthly disability payments, and also money to cover his care at the nursing facility.

A skeptic of financial institutions, our client’s father asked her to take a chunk of money out of his bank account and place it in a private safe at her home. Thinking nothing of it, our client agreed. After all, it was his money, so he should get to do with it what he wanted.

Right?

Unfortunately, someone at the bank reported the transactions as suspicious and Social Services got involved.

What should have been an open-and-shut investigation quickly went off the rails.

The problem?

Social Services did a terrible job investigating, failed to coordinate with its law enforcement counterparts, and made a biased decision based on evidence collected with an eye towards only one conclusion: elder exploitation.

Knowing no such exploitation had occurred, our client hired us and we got to work to show the many problems with the case.

The “Investigation”

Almost immediately after Social Services was notified about the transactions, they opened a case and contacted law enforcement. And that’s because when they receive a report of exploitation of a vulnerable adult, they’re required to contact law enforcement and collaborate on the investigation.

Here, however, there was confusion about which law enforcement agency should be contacted.

Originally, Clay County law enforcement was contacted and interviewed our client’s father. But when Clay County realized the transactions didn’t occur in Clay County, they bowed out of the investigation and allowed Becker County to take over the criminal investigation.

Almost immediately after learning her father had been interviewed, our client made contact with any agency who was willing to answer her call. In those calls and voicemails, she indicated a willingness to cooperate, explain, and provide any necessary information.

But nobody got back to her.

Instead, the deputy assigned from Becker County spent approximately three months trying to glean any information he could from Clay County about their interview with our client’s father.

The deputy asked for the recording; he asked for what was said during the interview; he asked whether there was any possible non-criminal explanation.

The response? In short, nothing.

Nothing from the Cass County deputy who conducted the original interview, and no helpful information from the social worker who accompanied the deputy. So the Becker County deputy decided he would go interview our client on his own.

When he did, he didn’t find a criminal or someone with ill intent. Instead, he found a woman (our client) who had taken money out of her father’s bank accounts as he requested and placed it in a safe in her home for safekeeping.

Every penny was accounted for, her father’s expenses were all continuing to be covered by the VA, and had he needed access to those funds, she would have gladly provided them.

So the Becker County deputy did the right thing: he closed his investigation with a recommendation that no charges be filed against our client for exploitation of a vulnerable adult or otherwise.

But that didn’t end things for Social Services.

They simply wouldn’t take no for an answer.

Despite the deputy’s findings, and despite a higher burden to prove exploitation (preponderance of the evidence) than to file a criminal charge (probable cause), Social Services ignored the deputy’s conclusions and made their own “determination” that our client had financially exploited her vulnerable father.

That is despite never having asked her father whether he asked her to remove the money, despite the fact that they never obtained a power of attorney document, and despite the fact that all of the money was accounted for, unspent, and being kept in a safe location.

What Social Services’ conclusion amounted to, according to them, was that the decision to put the money in a safe was detrimental to our client’s father because “it wasn’t gaining interest.”

That’s it.

Social Services determined that, despite a lack of any financial expertise, it was best suited to decide where and how our client’s father’s money was kept.

We knew that was wrong, and so we fought back.

The Defense

When we got involved, we had very little in terms of “evidence:”  a report from Social Services, some bank records, and emails back and forth between the two sheriff’s deputies and the social worker.

That’s not much to go on.

But when we began to peel the layers back and look at the investigative requirements set by the Department of Human Services, one thing became very clear: Social Services’ work fell far short of the standard.

The first and most serious violation was failing to share information with their law enforcement partners as directed.

For months, a Becker County deputy sought information that would help him interview our client and gaina better understanding of the background. When he didn’t get that information, he was forced to go in blind. And while he still made the correct decision based on the actions our client took and information she provided to him, he might have been able to help Social Services correct course, had he known what they did.

But he didn’t, so he couldn’t.

Our investigation also revealed several other telling things about the Social Services “investigation.”

First, we discovered that Social Services never even bothered to obtain any documents evidencing our client’s status as her father’s power of attorney, even though it’s a required element of the conduct they alleged.

Second, we realized that Social Services never bothered to collect the audio recording of the interview with our client’s father. Instead, months after the determination had been made, we had to push to obtain that from the sheriff’s office.

And when we listened to that recording, it was clear that the questions posed to our client’s father were not targeted well enough for him to retrieve accurate information. Instead, the deputy and social worker asked broad, confusing questions about our client’s authority to spend his money.

But even when Social Services learned the money was all accounted for in our client’s safe, they refused to go back and ask questions about whether that’s what our client’s father wanted. Since Social Services wouldn’t relent, or correct its errors, we had no choice but to set a hearing before an administrative law judge.

And that’s exactly what we did.

The Hearing

When an administrative determination about abuse is made, affected individuals have a right to a fair and impartial hearing in front of a Department of Human Services judge.

And that’s what we requested for our client.

We prepared diligently. In the midst of that preparation, Social Services made several overtures to attempt to settle or resolve the matter in ways that would have harmed our client.

Despite an asserted “concern” about detriment to our client’s father, the best solution Social Services could come up with was this: our client could rescind her status as her father’s attorney-in-fact, and the court could appoint a stranger to take over that role who would be paid handsomely for their efforts.

We refused and proceeded to the hearing.

When we got to the hearing, it was clear that our time preparing was well-spent. We spent nearly three hours scrutinizing the social worker’s work on cross-examination. Every time she was cornered, she was defiant and refused to acknowledge her shortcomings. She offered weak excuses as to why she didn’t follow DHS guidelines on assessments and investigations.

She also attempted to claim that her shortcomings were the fault of the law enforcement officers she was supposed to work with. And she attempted to proclaim that even if she had done the work properly, it wouldn’t have changed her determination.

But a well-prepared cross-examination exposed her work for what it was—a foregone conclusion by the time the allegation had hit her desk.

By the time the two-day hearing had concluded, we felt we had touched every weakness in the case that we needed to. And the judge agreed with us.

DHS determined that Social Services failed to show there was a breach of trust, failed to show that the withdrawals were unauthorized, failed to show the funds were misspent, and failed to show our client had not been maintaining her father’s funds if he needed them.  

DHS ordered Social Services to reverse its determination and any of the adverse effects that went along with it—from disqualifications to work in certain social settings all the way to our client’s ability to resume managing her father’s finances without fear for retribution.

The Takeaway

Although this case didn’t implicate our client’s freedom in a way that most criminal cases do, it did implicate her freedom to assist her father with his finances and freedom to work in the setting she wished to.

When a machine with the funding and workforce of the government rears its ugly head against citizens, it can feel overwhelming as the individual targeted. But it’s important to recognize that you don’t have to go it alone.

We will always stand ready to expose the truth when the government refuses to do so. When their conclusions tell others to reject the evidence of their eyes and ears, we’re ready to do the work to shine a light on the truth.