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New law makes it a felony to exploit those with ‘diminished capacity’

By July, financially exploiting a mentally incapacitated person will be a felony in Virginia.

Gov. Bob McDonnell has signed bills that create the new crime, which proponents say will help prosecutors crack down on a growing problem.

The bills—sponsored by Sen. Richard Stuart, R–Stafford, and Del. Rob Bell, R–Albemarle—make it illegal for a person to take advantage of someone’s mental incapacity to “take, obtain, or convert money or other thing of value.” A violation would be considered larceny.

In Virginia, petit larceny is a misdemeanor, but most thefts over $200 are considered grand larceny—punishable by one to 20 years in prison. Many thefts from vulnerable people, one survey indicates, involve significantly more than $200.

Stuart said he originally wrote his bill to target those taking advantage of elderly people, but the state Crime Commission had also been looking at the issue—at Bell’s request—and lawmakers chose to go with broader language to protect anyone who is mentally incapacitated.

“It was a really important bill. So many people take advantage of incapacitated people,” Stuart said Tuesday. “There are some elderly people who would fall into that category who have diminished capacity.”

As an example, he pointed to shady contractors who “come into neighborhoods and try to convince elderly people they need certain repairs when they really don’t.”

Mentally incapacitated people can also be victims of financial exploitation by caregivers or others whom they trust.

According to a crime commission report last November, financial crimes against those over 65 years of age increased by 18 percent between 2001 and 2007; overall, state financial crimes increased 8.6 percent in that time.

In a 2010 study, researchers interviewed 54 older adults in Virginia and their caseworkers, and analyzed the crimes and abuse they suffered. Among that group, each victim averaged a loss of nearly $88,000.

According to the National Center on Elder Abuse, no national statistics on elder abuse—financial and otherwise—exist, in part because of differing definitions on what exactly constitutes such abuse.

The National Committee for the Prevention of Elder Abuse defines such abuse as anything from outright taking of money or property, to forging an older person’s signature, coercing them into signing a deed or will, using the older person’s property or possessions without permission, telemarketing scams and more.

Stuart said current Virginia law isn’t clear about whether people who take advantage of someone’s mental incapacity could be prosecuted. The new law creates a clear, “specific-intent” crime, he said.

The bill defines mental incapacity as someone whose condition “prevents him from understanding the nature or consequences of the transaction or disposition of money or other thing of value”.

It also attempts to distinguish between abuse and innocent actions by caretakers. The language of the new law says it won’t apply to a money deposit or transaction “in which the accused acted for the benefit of the person with mental incapacity or made a good faith effort to assist such person with the management of his money or other thing of value.”

Distinguishing between the two can be difficult, Stuart said.

“We didn’t want to infringe on folks who just made bad decisions,” he said. “There are people who decide that they want to give somebody a ton of money. That may be a bad decision but it’s their decision to make. People have a right to make a bad decisions but they shouldn’t be taken advantage of because of an incapacity.”

Chelyen Davis: 540/368-5028