Financial Exploitation Protective Orders
Last updated on 05/27/2021 at 4:59 pm
What is financial exploitation?
Financial exploitation is the intentional misappropriation or misuse of money or other assets of an elderly person, protected person, or incapacitated adult. Or it is the diminishment of assets due to undue influence. It can happen when someone intentionally steals or takes money or assets or if someone uses undue influence to make a person hand over their property or use it in a way that they normally would not do.
- Undue influence means using lies, emotional blackmail, false information, or other ways to improperly influence a person’s decisions.
- Elderly person means a person over 65.
- Protected person means a person: ⦁ who is over 18; and ⦁ has been found by a court to be unable to take in or process information because of a mental impairment.
- Incapacitated adult means a person: ⦁ Who is over 18; and ⦁ because of age or physical, mental, or other disability, is not able to perform the daily activities of life required for reasonable health.
Who is at risk of financial exploitation?
Typically, the elderly and people with mental impairments are the most likely to be victims of financial exploitation. While consumer scams are common, (foreign princes, IRS, and grandparent scams), over 42% of victims suffer at the hands of someone they know – family members, neighbors, ministers and even professionals like lawyers or accountants.
People who need help with their shopping, paying bills, and managing bank accounts are more likely to be a victim of financial exploitation. People who are trusted to help with these tasks, are often the very people who commit financial exploitation.
These are common signs of financial exploitation:
- Unusual bank account activity,
- Suspicious signatures on checks,
- Checks written as “loans” or “gifts”,
- A new person coming with a vulnerable person to the bank,
- A new person taking over a vulnerable person’s financial decisions,
- Bank statements no longer being sent to a vulnerable person’s home, and
- Sudden changes in a vulnerable person’s power of attorney, trust or will.
What is a financial exploitation protective order?
A financial exploitation protective order is a court order issued by either a magistrate or circuit court judge. It can provide protection and safety to a person and their assets if that person is a victim of financial exploitation. It can be filed without going to the police or filing a formal lawsuit.
It can provide immediate help. The court can make the person accused of financial exploitation:
- stay away from the victim,
- return money or property, or
- provide an accounting of what they have done with assets.
Can I file a financial exploitation protective order on behalf of someone else?
Yes. Any person who believes that an elderly person, protected person, or an incapacitated adult is suffering from financial exploitation may file in either magistrate court or circuit court.
The petition for a financial exploitation protective order can be filed by:
- The person asking for protection; or
- The West Virginia Department of Health and Human Resources Adult Protective Services (APS); or
- Any reputable person filing on behalf of the victim, including: ⦁ A guardian or a power of attorney, ⦁ The victim’s family members; ⦁ A caregiver or person that shows an interest in the welfare of a victim.
How do I file for a financial exploitation protective order?
You must file a petition in either the magistrate or circuit court in the county where the victim lives. The Supreme Court of Appeals of West Virginia has a Petition you can use to file. You also will need to fill out the Case Information form.
The petition must name the victim (petitioner) and the perpetrator who you believe committed the financial exploitation (respondent).In the petition, you must write what you think the respondent did that you believe is financial exploitation.
What happens after I file the petition?
If the petition is filed in magistrate court, the magistrate will hold a hearing. The respondent will not likely be there for the first hearing.
The magistrate court may issue a temporary protective order if it finds evidence of immediate and present financial exploitation of the petitioner.
The magistrate court will then send the case to circuit court. If the magistrate court does not find good cause to issue the protective order, the petition will be denied.
If the petition is filed in circuit court, the court will move forward as discussed in other questions.
What does a temporary financial exploitation order do?
If granted, a temporary financial exploitation order issued by the magistrate court must include mandatory relief. The order SHALL:
- prohibit the respondent or someone on their behalf from committing any acts of abandonment, abuse, or financial exploitation against the victim;
- prohibit the respondent from taking any action that results in the diminution of value of the victim’s assets; and
- order the respondent to provide an accounting of the disposition of the victim’s income or other resources to the circuit court within twenty days.
What else can you ask for in the temporary order?
You may ask the court to take some added steps. You may ask the court to:
- Order that the respondent be prevented from using or transferring any of the victim’s property until another court order;
- Order that the respondent is not allowed to contact, attempt to contact, or harass the victim directly or indirectly or through third parties;
- Order that the respondent is not allowed to receive, hold, access, or transfer any assets of the victim;
- Order that the respondent may not be alone with the victim without the presence of other individuals specified by the magistrate;
- Order the respondent to stay away from the victim’s home, workplace, or care facility;
- Ask for the appointment of a receiver or person to be given power by the court; and
- Ask for a freeze on the respondent’s assets.
The magistrate court may also grant other relief to protect the victim. Because every case is different, the court has discretion to change the relief for the victim and what is needed to protect him or her.
What happens next?
After a temporary order is granted by a magistrate court, it will be served on the respondent. The case will then be transferred to circuit court in the same county.
The respondent may file an Answer.
A hearing will be held with the circuit court within twenty (20) days. The temporary order will be in effect until the final hearing.
What do I have to prove to get a final financial exploitation order?
Once the case gets to circuit court, whether because of a transfer from magistrate court or through filing directly, a hearing must be conducted within 20 days. The circuit court may issue a permanent protective order if the petitioner can prove: (1) the respondent has committed financial exploitation; and (2) there is reasonable cause to believe that it will continue.
A protective order may also be granted if the respondent agrees to the protective order.
What kind of relief does a final financial exploitation protective order give me?
A final financial exploitation protective order can give relief similar to a temporary order. A final financial exploitation protective order may also:
- Order the respondent to return property or assets improperly taken;
- Provide for the appointment of a receiver (someone to take charge of the victim’s assets and protect them);
- Award damages to the victim;
- Freeze the respondent’s assets;
- Award the victim his or her attorney’s fees; and
- Grant any other relief necessary.
How is a financial exploitation protective order different than a domestic violence protective order?
Domestic violence protective orders protect someone from physical and mental abuse. Financial exploitation protective orders protect someone from financial abuse and exploitation. Both orders prevent a respondent from contacting a victim.
How long does a financial exploitation protective order last?
A temporary protective order granted by Magistrate Court lasts until a hearing is held in Circuit Court.
If the Circuit Court finds there has been financial exploitation, a final protective order may be granted for up to two (2) years.
If the Circuit Court finds there is not financial exploitation, the temporary protective order will end at the final hearing.