Card owner's dementia, death make it hard to prove theft

To Her Credit columnist Sally Herigstad
Sally Herigstad is a certified public accountant and the author of "Help! I Can't Pay My Bills: Surviving a Financial Crisis" (St. Martin's Press, 2006). She writes "To Her Credit," a weekly reader Q&A column about issues involving women, credit and debt, for, and also wrote for MSN Money, and, and has guested on Martha Stewart Radio and other programs.

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Question Dear Sally,
A woman (our next-door neighbor) used my father's credit card when he was in the hospital suffering from dementia and other illnesses. After my father died, I took over his affairs and noticed $8,000 charged to his credit card two days before he died.

We asked the neighbor, who sometimes visited my dad, if she had seen his wallet, but she claimed she hadn't. However, we eventually tracked the charges to her.

We explained the situation to the police, and they charged her with theft and fraud. Now she is in court claiming my father told her it was OK. All the charges were for her personal use, property tax, her son's wedding pictures and flowers. Will she get away with this? -- Donna


Dear Donna,
I'm afraid she may very well get away with it. Jordon Ostroff, a former prosecutor and currently a defense lawyer in Central Florida, has seen many cases similar to this one. He says, "It's unfortunate, but it's hard to disprove a story when one side is dead."

In fact, if Ostroff had gotten this case when he was a prosecutor in Florida, he would have withdrawn from the case. "The defense is going to get up on the stand and say, 'He gave me the right to do that.' There's not enough evidence to support the case."

Neighbors can take advantage of a situation like this more easily than your average identity thief. They know the ZIP code and other information. They can influence an elderly person or someone with impaired judgment. If they occasionally help out and visit, they may easily rationalize helping themselves to recompense, with or without authorization. It happens all too often.

That said, certain facts may help your case against the neighbor. The fact that she initially denied having the credit card seems odd. Ostroff says that it would help if you had surveillance footage of her sneaking into the house or if some other items were missing as well and found in that person's house. The fact that money was spent on the neighbor's son's wedding may also seem to weigh in favor of prosecution.

You may also show the neighbor knew your father had dementia and took advantage of it. Even with dementia, some patients have moments of clarity. The case may be influenced by how likely it was that your father was capable of authorizing the use of his card.

On the other hand, if your father and the neighbor got along very well, and your father knew his time was almost up, he could have given his OK to the use of his card. Ostroff says, "The neighbor may have said, 'We're having a wedding,' and the dad said, 'Here's my credit card -- go for it!'"

In hindsight, cases like this illustrate why it's so important to limit a person's exposure to financial risk when they are suffering from impaired judgment and dementia. Ostroff says, "It's tough, because the minute you take away a person's independence, they tend to die sooner. If having the credit card makes him feel like he's still there and still important, it's a tough emotional thing to pull that away." Lowering the limit on a credit card, cutting back on the number of cards or even just going to a debit card only can reduce the amount of exposure an elderly person has.

I'm sorry you are going through this at the same time you are dealing with the loss of your father and all the issues that go along with that. However this case turns out, I hope you can put this behind you and have a better new year.

See related: Steps to take to relieve elderly mom of credit card debt, How to detect and prevent elderly financial abuse, Steps to protect finances of those with Alzheimer's

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Updated: 02-15-2019