ELDER ABUSE
It Isn't Always About Physical Abuse
By Michael Panish, Construction Expert Witness
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Having recently testified as the door hardware, lock and security expert
witness on a very serious elder abuse case involving the rape of a 93
year old resident of a retirement home, I am intimately aware of the potential
for physical violence and neglect aimed directly at senior citizens. The
following is about a completely different kind of abuse involving our
senior population.
During the past couple of years, with the downturn in the economy, and
the significant slowdown in the construction trades, I have been contacted
to evaluate and consult on several significant cases and many issues relating
to contractor misconduct and construction fraud. It has become apparent
that dishonest practices have begun to dominate the businesses of many
low end contractors and home improvement companies. Seniors seem to be
one of the prime targets for construction scams.
I was recently contacted by an old acquaintance seeking my advice as to
the validity of charges proposed to his elderly mother regarding an HVAC
(heating ventilation and air conditioning) system repair. It seems that
during a recent heat spell, her almost brand new air conditioning system
failed to adequately cool her home. She had hired a contractor to install
a completely new system less than 18 months ago. The system came with
a two year all inclusive labor and materials warranty, and a five year
materials only warranty. So, she called the contractor that installed
the new system. When the service repairman came to her home, he told his
mother that the warranty did not include the materials for the multiple
problems he found. He told her that he needed $100.00 cash for the purchase
of materials and that the repair necessary would cost her approximately
$2,500.00. She gave the repairman the $100.00 in cash, and wrote a check
for $2,500 to the service repairman and then called her son immediately
to ask his advice. Her son called me...
Another popular service these days is to buy a "blanket" home
insurance policy that is supposed to cover all repairs needed to your
house from top to bottom as long as you pay a small deductible fee at
the time of the service call. For a pre determined price, monthly installment
payments are sent to a central location. For example, whenever you need
an appliance serviced, have a leaky faucet or need major rework to your
roof, all appropriate service contractors are supposed to be dispatched
for the small deductible, as per the master policy plan. Apparently, several
geriatric magazines and group plans are advertising and endorsing the
benefits of purchasing this type of policy for elder homeowners.
I was contacted by an elderly gentleman that told me that he had recently
needed his attic ventilation fan serviced. He was happy because he had
just purchased a blanket policy for repairs in his home. He said that
the fan had been squealing and was driving him crazy. When he contacted
his insurance plan, they sent a local electrician to see what the problem
was. The electrician climbed into his attic and instantly made his assessment.
The electrician came down from the attic, digital camera in hand and told
the gentleman that he had major problems with the fan motor unit. It needed
to be completely replaced. The electrician had taken a picture showing
the homeowner that there was some problem with the structure of the attic,
and he would have to remove a structural beam in order to gain access
to the fan motor. He told the man that it would cost an additional $250
cash to do work to the attic obstruction and he would also have to pay
the deductible for him to get started. The owner thought that was the
only way he could get the fan serviced and gave the electrician the requested
cash. The electrician would not take a check, credit card or invoice the
homeowner for this work and wanted immediate payment prior to any work
being performed. A few days later, the owners son was in the backyard,
and noticed that the stucco around the fan location had been broken, the
fan was no longer in the proper place and debris was dangling from the
side of the house. The son asked his elderly father what had happened
to his fan, and the previous story was told to his son. The son, being
concerned, contacted the blanket insurance company and was told the following
by their customer service representative and supervisor: All of our contractors
referred through this policy are licensed and insured independently from
our agency. They are individually responsible for any and all damages
created on your property, and we as the insurance providers make no warranty
or assurance that the quality of the work performed under this policy
is appropriate or done correctly. We are an out of state business and
hold policies nationally, and all of our referred contractors have been
checked out and verified as licensed contractors in the state where they
are performing work. We assume absolutely no liability for their actions
and are uninvolved in all transactions other than to put you in touch
with an appropriate service contractor. After hearing this, the son urged
his father to seek my services.
An older woman found a flyer included in a mailing packet advertising that
a roofing contractor was having a special re-roof promotion in her area.
All she had to do was call the phone number on the flyer, and a salesman
would visit her home, take all needed measurements and bring samples for
her to choose her new roof material. The work would be completed in two
days from signing of the work agreement. The woman in need of a new roof,
made the phone call, a salesman came to her home, she picked the roof
material that she wanted for her home, and gave the man the requested
50% deposit. The salesman arranged for work to start in 10 days instead
of immediately, as he claimed that all of his crews were busy working
in her area until then. 20 days passed - the roofer never came to install
her roof, the check cleared her bank, and nobody was answering the phone
number on the flyer. I am her next
call for help...
These are just 3 examples of the many calls that I have received during
the past couple of months. It appears in each case that a specific targeted
market was chosen. In these cases and many more, the average age of the
homeowner has been 80 + years old.
In the State of California, where these calls originated and these incidents
took place, the law states that every home improvement contract must contain
a three day right of rescission clause. It is unlawful for any contractor
to take any deposit in excess of 10% or $1,000 (whichever is greater),
for securing a contracted project. The homeowner has a right to cancel
the contract within the 3 day period without any monetary penalty and
any further recourse. All contractors must specifically disclose all labor
and materials required for the project contract and provide a homeowner
with materials and labor lien releases at the completion of the project
prior to receipt of payment for that project.
Most homeowners have a sense of anxiety over any home renovation project.
I have been retained as an expert witness for cases where young, well
educated professionals such as doctors and attorneys have been scammed
by contractors. There is a sense of helplessness that homeowners have,
and they want to trust someone, anyone to realize their vision.
The difference in these elder cases is a sense of urgency that they must
act upon. They are sometimes lonely, vulnerable and looking for something
to entertain them. They need an immediate sense of relief from their perceived
problems. A friendly con man contractor is just the sort of companionship
that they are looking for. A convincing salesman spending a few minutes
or hours with them entices their need for belonging to something. The
graphic promises and descriptions of how the project will unfold draws
them in, and ripens them up for the quick score.
In the first example, above, the homeowner had a written contract furnished
to her at the time of the completed HVAC installation indicating that
all labor and materials were under warranty for the first two years after
the installation of her system. As the system failed only 18 months after
the installation, all repairs and materials needed for those repairs were
the sole responsibility of the installation contractor, not the homeowner.
The serviceman had absolutely no business asking the homeowner for any
fees associated with this service repair, as per her contract. And, requesting
a $100.00 cash prepayment for materials was completely unacceptable and
unprofessional. Upon my examination of the original invoice and work contract
for the new HVAC system, I personally contacted the installing contractor.
He gave me a ridiculous list of reasons why the system had malfunctioned,
and even tried to put the blame on the elderly homeowner. After our discussion,
the contractor was convinced that he was in violation of his agreement
and he agreed to return all money to the homeowner, and make all needed
repairs. As a gesture of good will, he extended the labor warranty for
an additional 6 months.
In the second example, after being kept on hold for 45 minutes and transferred
from one person to the next, I spoke to the home warranty company. They
attempted to claim that they had no responsibility to indemnify the homeowner
for defective workmanship or inappropriate behavior of their referred
contractors. I was read the same lack of responsibility statement that
the son of the owner was given. In the State of California, the blanket
insurance company still retains responsibility for any contracted services,
even if they are out of state. If you sell contracts in California, you
must follow the laws of the State of California. So, the claim that they
were out of state, but were doing business within California without responsibility
was invalid. I also had a long and detailed discussion with the electrician
that created this problem, and discovered that he was in fact unlicensed,
uninsured and using the license of some other contractor without the other
contractors knowledge. While all funds were returned to the owner of the
house, corrective actions and legal issues are still pending through the
State Contractors Board against the electrician that was unlicensed. The
reality of whether or not the fan motor needed replacement is questionable.
The fan company warrants that particular product for ten years and offers
free replacement motors that easily connect into the existing frame. The
complete lack of knowledge and experience on the part of the bogus electrical
contractor created significant damages to the home. It was obvious that
the contractor was looking out for his best interests and saw the elderly
man as an easy target for some quick cash. Due to the damage created by
the incompetent electrician, the homeowner had to hire additional tradesmen
to repair the house.
In the third example, the elderly homeowner has lost her money. No trace
of the roofing contractor has been found, however, reports of fraud were
made to the police department and investigation is pending. Due to the
fact that the flyers were sent via mail, it may become a federal fraud
problem for the roofing contractor.
Today, even more so than in the past, older people appear easy targets
to unscrupulous contractors and salesmen. They are quick to react with
their wallets and easily satisfied even though the work may not be as
promised. However, they are generally slow to realize that they have been
taken advantage of. They appear to be afraid that their problems will
not be solved unless they make an attempt to pay for services in advance
or prior to any formalization of contractual obligation. In many circumstances,
perhaps relating to pride or shame, they will not report their problems
and many are "ripped off" as a result of their hesitance to
report what has happened to them. From my experience, it appears that
many of the home warranty companies are incompetent to assess the quality
of the referred contractors that are sent to do home repairs. Their lack
of knowledge about the referral network contractors should act as a "red
flag" to anyone seeking these types of services. Some homeowners
seek "peace of mind" from these home warranty policies, however,
in most cases are let down by the responses that are given when actual
warranty claims arise. Many home warranty companies are happy to take
your annual premium, but do little to help you when you have a claim.
Michael Panish is an expert witness, forensic analyst, and consultant in
the field of Construction. He is licensed in the State of California as
a General Building Contractor, Cabinet, Millwork, Paint & Finish Contractor,
Door, Lock & Security Equipment Contractor, and Electrical Contractor.
Mr. Panish has over 35 years of hands-on experience in the construction
industry. Mr. Panish has provided testimony in construction defect, poor
workmanship, product liability, and personal injury cases relating to
most construction trades, doors, locks, automatic doors, cabinetry, and
custom casework. Mr. Panish has offices in California and the New England
area and is available for nationwide consultation, forensic analysis,
inspection, report, and testimony. Mr. Panish can be reached at
(888) 902-4272