Are caregiver companies liable for debit card/ATM fraudulent use of my mom's card?

Many years ago, my mom lived on a two-house rental property. A caregiver who took care of the old lady in the back house was friendly and reliable. She and Mom often talked about how the old lady had no visitors, no family ever showed up, and that she had tens of thousands of old bills in coffee cans "hidden" under her bed.

One day, my mom saw the caregiver leave work surprisingly early on a Tuesday morning, and then she didn't come back ever again. On Friday, my mom went to check on her old neighbor...you can guess what she found...and what was missing forever. The caregiver had even used a fake ID when she joined the agency, and she mysteriously quit the same day she got upwards of $40,000.

Another thing if I may add, is the senior client still in full capacity to decide for herself? If so, then, the caregiver cannot be sued or incarcerated for it. Unless, they have proof/s that the caregiver has taken some or all of the money for her own benefit without the permission of the client.
If the mother isn’t complaining then, there’s no case. Unless the mom has cognitive impairment then it is another case.
Also, the daughter can actually talk to the caregiver about it without accusing her. Make it known subtlety, that she may not be with her mom but she knows what’s going on.

Firstly, the caregiver should have told the daughter of such request from the client.
Secondly, caregivers must avoid getting involved with the client’s finances. In the absence of the children there will always be an authorized person or entity that takes care of money matters like a trustee or a fiduciary.
Bottom line, unless the caregiver has been legally given the authority to deal with the client’s finances, (which is very rare) there’s no way he/she should involve himself/herself in money matters.

ShenaD, you wrote that "Proving intent is not an element in this case." On what do you base this? I'm interested in the legal cite, as my understanding of fraud cases is that intent is an essential element of proof. Do you have a statutory or case law citation for your conclusion?

Clementine: While this may be a true statement (that your mother did, in fact, give permission to use the bank card), I cannot say that she is or isn't liable. However, generally in fraud cases where a financial institution is involved, the person whom money may have been fraudulently used/taken, said person MUST prepare an affidavit.

Instead of ASSuming the caregiver is guilty why not ask her for a print-out of list of what was bought and a total.

Take them and the perpetrator to court and once and for all anyone who reads this-- the demented elderly do not need to hold onto any driver's license or any ID, or BANK debit or credit cards or check books---- STOP being so darn gullible and liberal and take all these things away from your loved ones and put them in a safe place. POAs-- you pay the bills and POAs-- you do not let anyone else handle any financial issues--- especially if you had a Mom like mine who gave to every last environmental or pseudo-charity group and then forgot she did and gave three times in a row ! Boy, was my sister the POA ever so Dang stoopid ! I just could not believe she was so gullible ! Bit she is a liberal who is all about feelings and touchy-feely BS. my gosh. She learned her lesson and had to pay back Mom's account out of her own pocket because Mom's bills came due the next month and her account was dry as a bone. Actually it was me who took MOM's purse and kept it away from all those who were not mentally competent to do the right thing. And then they-- all three sisters, agreed with me later.

This is a reportable incident that the Agency the Aide worked for is required to file with the Department of Public Health,  We have a shopping policy that the Aides are not to us the consumer Debit/Credit Card for any reason.  If they are shopping they can use the EBT Card or if the consumer fills out all but the $ amount on a check they can us that to shop.  They must fill out a form and the shopping receipt must be attached.

The OP hasn’t come since since they posted and they give literally no information so some of you are projecting and making broad assumptions here.

I assume the caregiver's agency had been informed besides the police report. Why did your mother give the card to the caregiver instead of you?

Playing devils advocate here, it is also possible your loved one may, in fact, have said"Please go get money out, I want to surprise x child, grandchild with a gift". Then hidden it even from herself. My friend Richard did this at Christmas, took out two rounds of $250 each, put in envelopes in his top dresser drawer, put cash in all of the family cards. He is currently planning to give a large congratulatory sum to his eldest grandchild when the boy finishes USMC Boot camp. He also passes out $20 bills to his disabled middle son when the boy runs out of his ssd,ssi money and has no cigarettes. Double check that your loved one does not actually HAVE that cash squirreled away in a book, underwear drawer, or under the mattress. The generation before mine survived the Depression, but with a deep distrust of banks.....
Not making excuses if the CG did steal, but just tossing a possibility out there to be checked.

I would expect that at least three factors are involved here:

1) The employee didn't give the $5000 to the OP or the elderly woman.
2) The employee didn't provide, or give evidence of having obtained, $5000 worth of goods and/or services of benefit to the elderly woman purchased with this money.
3) I'm not certain as to whether the employee has had contact with the OP or the elderly mother, but if not, then absconding with the money should be evidence of criminal intent.

Therefore, the employee should be found and prosecuted, and the agency should be considered at fault for having provided a criminal to provide care. Hopedly the agency has suitable insurance to cover this loss (assuming the agency wasn't complicit in any way).

If your mother does not have dementia and still has any judgement, you can’t do anything about it. How old is your Mom and does she have any cognitive issues??? Change caregivers if you can. Ask the caregiver what the money was spent on. How much does she have left? Are checks made out to the caregiver or to a company she works for? So many questions need to be answered before any good advice can be given on here.

Hi Clementine, my parents went through something similar. The biggest difference, my parents had taken out the money and the caregiver took the cash. Most ATM machines have a video camera, but you will need to ask the police to contact the bank or savings & loan to get a copy of that quickly. The institution often re-uses the video or digital storage.

Second, where are you located. Many state attorney generals are taking elder abuse and elder fraud very seriously. Crimes against "at risk adults" is one of the biggest problems today. You can go on-line and google state attorney general for your mom's state. See if they have a separate section dedicated to elder abuse or fraud. If not, just call and find out who they would suggest handle this.

Third, you can complain to the police department about the officer or detective who came out to investigate the crime against your mom. Some police departments have on-line complaint forms. It doesn't take a rocket scientist to figure out that the bank probably has a video of caregiver taking out money. A $5000 handling fee is pretty darned excessive. It sounds like the officer just didn't care. Well, everyone has a boss. Keep working your way up chain of command until you find someone who will care.

Good luck and think about taking away mom's ATM card. If you have financial Power of Attorney (POA), then you could get the ATM card re-issued in your name. You can give mom a regular allowance every week and know that she's getting $200 a week or whatever she needs. If you have not nailed down POA authority for health and finances, you need to do that soon. Mom clearly can't handle her own finances and she needs to know someone she trusts is doing this for her.

Did the police investigate at all? Also I hope the agency has fired her. Does she have a state license? If so she should be reported to them also. They may take her license away, penalize her in some way. The state keeps these things on file.

I thought there was a limit on daily withdrawals? Oh my what a horrible situation. There was clearly no intent for the aide to take those funds and it was theft. It was exploitation of an elder. I'm sure the amount was made clear about how much to withdraw. I'd be contacting an elder law attorney to assure your rights and taking actions that you can. I would think there is something in contractual language that protects you by the company's liability coverage or it may clearly state that you as the client are not to give an aide access to cards etc. Very expensive lesson to learn if there is no way to be compensated. Wonder if your local small claims court could help.

The caregiver agency that I used would not let employees take my mom to an ATM or let the employee use the ATM card on their own. At first I was angry since going to the bank for mom to get cash was something I needed the agency to do but then I thought about it more. Check with the agency about their rules.

That is correct. Any time you give your card to anyone to use you are essentially compromising your own card/account and are not covered for fraud. That being said though, you can go through small claims court to try and recover the funds back. Moving forward you could use prepaid cards to minimize risk. So sorry that this has happened to your loved one.

Much depends on your mom's state of mind--IF she is able to make her own decisions, NOT illegal--on the basis it is not illegal to give away your own money. However, if she has been coerced or confused at the time, this is highly improper and illegal. POA can only make those kinds of decisions. Further, if she is that vulnerable it makes me wonder about the family who allows her to live by herself. Sitters charge about $20 an hour (CNAs who do hands-on care are about $30 an hour), which comes to roughly $600 a DAY (not including cost of medication administration--only LPNs and RNs can administer medications--that's EXTRA!)-- your mom is VERY financially well off and can afford to gift large sums of money. It would be far, far cheaper to live in assisted living facility.

Using the card outside the scope of consent is illegal. Detectives are lazy and their prosecutor prob thinks they cant get a conviction. Demand at least a report be filed, then get yr a copy which will have suspects info in it. Use that info to get a civil case started. Also, call the lieutenant and complain. Its dereliction of duty to refuse to take a criminal complaint. In law enforcement it's called KICKING THE CALL.

Agree with Cali & the police. Permission was given to the CG. It’s going to be hard to prove it’s the CG’s fault. They will tell you it was your responsibility to monitor the bank statements or provide the CG with supervision when it was given to her while she was using it and additionally the card was not stolen.
Boy that stinks.
No DA would pursue this. The aide may get fired but it could be unlawful termination. All the CG has to say is she had permission from the family, which she did. The CG can even say her client asked her to do so and if the client has dementia this could have very well been the case.
Sad but true.
I’m with Midkid - bet you haven’t seen the CG since.
Worth a try going after her employer however but as stated go through the agency’s contract you signed.

You know, based on my parents experience with something like this, I think the issue here may be that you can’t prove the intent. While it may seem cut and dry, it’s really not. Because your mom DID give the caregiver permission. In my parents situation, my brother who was a meth addict at the time, stole my mother’s debit card in the middle of the night, over the course of at least a week, and drained the account by withdrawing the daily maximum amount ($300 at the time) from an ATM machine. My parents called the police and went to the bank. The bank said too bad, you are out the money because at one point in time, my mom had given my brother (and I) her debut card and allowed us to withdraw $20-$40. This was before my brother became a drug addict and a criminal. The police arrested him and he was convicted and did some time.

My question is, did the detective send the case to the DAs office? It’s the DAs office that determines if charges will be filed. You need to find out if the DA declined to file charges.

What proof that the CG had permission? She might have just stole it & used it for herself. If patient did indeed give her an atm Debit card & withdrew $5,000, then there would be a receipt with remaining balance. The bank has cameras...have them get pictures of Caregiver withdrawing $$$. Also file police report. & lawsuit against agency. These cases make me want to scream. I hope caregiver goes to jail for a long time. Put credit freeze on reporting agencies like Equifax. Report card stolen & talk to them about what happened so you can possibly get it back, which I doubt. Hugs 🤗

Giving permission to retrieve money from an ATM to give to mom is not the same as giving full access to take what you want.

Read the agreement you signed with the company to see if it specifically addresses liability for caregiver actions, and check any literature or notes made from discussions with reps of the company. If they haven't already been notified, you should do so immediately, in writing, via text or email (with receipt acknowledged).

Most of the companies I interviewed stated (or claimed) that they performed background checks on potential employees. Raise this issue; if they did, and the caregiver has done this before, they had knowledge of this behavior and never should have sent him or her to care for your mother.

On another level, if your mother has any level of dementia, the caregiver could argue that she was authorized to withdraw an unlimited amount of funds. I assume no one else was present when your mother gave her the card?

I assume also that you've notified the card issuer and the bank to block any further withdrawals.

If you haven't already, contact one of the 3 credit reporting companies to report this fraud.

It's always sad to learn of someone exploiting an older person; I hope you're able to recover some of the funds, and certainly to let the agency know of this person's behavior.

I would not rely on police for a legal opinion.   They may be saying there is no criminal action, when you are more likely concerned about a civil action. 

I assume these withdrawels took place over a period of time -- my bank wont let me tak out 5K at one time.  

I agree, consult with attorney.  The company may have bonded/insured employees so I would not let go without trying.

What is clear here is that the card should not be in her care. This is a she said /she said and there can be no proof. Stop the ATM withdrawals. Do POA leaving a small spending account for the person if she is incompetent to handle money. This could be the beginning of big problems you need to get stopped.

The CG took $5000 and kept it? I imagine you have not seen her since.

If your mom has any cognitive issues that could be in her 'favor' as to getting the money back.

I worked Elder Care and did use my client's card to purchase things but she was always right there to see me do it. To take her card to a bank and get such a sum would have set off all kinds of alarms!!

I DO think the CG agency has some responsibility in this--they hired and bonded her, right?

Just my opinion, but when I worked in EC, we had to have receits and documents of all kinds for ANY money spent while with the client.

I agree with JoAnn, but also wondering if your mom has been diagnosed with any cognitive issues and if so, did the agency have this info in their file for her? Because if they did, then the CG also must have known it. FYI I believe that stolen amount is a felony...I wish you success in recovering the money!

I would say the Police are correct. I would make sure that her employer knows what happened. I would also consult with a lawyer. Your Mom gave the woman permission to get money out for her, anything else is stealing. The agency maybe held liable.