The Court of Appeals of the Thirteenth District of Texas holds that a caretaker who married her elderly employer did not misappropriate funds but did financially exploit him. The state failed to show that the caregiver acted contrary to an agreement with the elderly individual. However, it succeeded in proving that she knowingly and improperly used his resources for her financial gain. In Joanie Martinez Cosper v. the State of Texas (Tex. App. 13 No. 13-22-00038-CR, January 26, 2024).
Senior Helpers hired Joanie Martinez Cosper as a caregiver in March 2020. During her training, she learned about elder financial abuse and exploitation.
Through Senior Helpers, Myrl Cosper, an elderly individual, engaged her to assist his wife, Norma Jean Cosper. Only 19 days after starting, Mr. Cosper offered her private employment. She accepted even though it went against Senior Helpers’ policy.
As Ms. Martinez became close with the family, Mr. Cosper transferred more than $45,000 in a shared family account to one opened only in his name. Records show many withdrawals throughout 2020. He also transferred money from his investment account to this bank account to fund the withdrawals.
A physician diagnosed Mr. Cosper with severe dementia. Concerned about the transfers and withdrawals, his daughter, Carol Davis, petitioned for guardianship, but later withdrew it when a second doctor opined that her father only had early dementia.
After Mr. Cosper made withdrawals of $28,000 and $25,900, Ms. Martinez purchased a car. Mr. Cosper told a bank employee that the withdrawals were to buy a new vehicle.
Mrs. Norma Jean Cosper died. Just 16 days later, Mr. Cosper married his late wife’s caretaker. He added his new wife to his bank account, and they made withdrawals over $40,000. A new power of attorney named Mrs. Martinez Cosper as agent, and a new will listed her as the primary beneficiary. He deeded her half of his home.
When they went to Wells Fargo to add her to his investment account, an employee froze the account and contacted Adult Protective Services. Later, Mrs. Martinez Cosper went back on her own and attempted to liquidate the account. She also explored having her husband committed.
Following convictions of misapplication of fiduciary property (first-degree felony) with a value of between $150,000 and $300,000 and exploitation of an elderly individual (second-degree felony), Mrs. Martinez Cosper appealed.
A fiduciary misapplies property by going against an agreement or a law. Assuming – but not concluding – that Mrs. Martinez Cosper was a fiduciary, the appellate court considers whether she disregarded an agreement with Mr. Cosper. Since the state does not argue that she violated a statute, it must prove that there was an agreement between Mr. Cosper and Mrs. Martinez Cosper, which she broke.
For several of the alleged misappropriations, Mrs. Martinez Cosper acted in agreement with Mr. Cosper. When Mr. Cosper told the bank employee that the money he withdrew was for a new vehicle, this evinces a mutual understanding for the use of the funds. As the transfer of the house was a gift, the state cannot show that she was a fiduciary acting against an agreement. Mr. Cosper acted voluntarily when he updated his estate plan.
With respect to the remaining withdrawals and attempt to liquidate the account, the state did not show an agreement for how Mrs. Martinez Cosper was to use the property.
Because it did not demonstrate that she acted contrary to an agreement in any instance, the state failed to prove that she misapplied fiduciary property.
The appellate court next considers financial exploitation. To establish that Mrs. Martinez Cosper financially exploited Mr. Cosper, the state must demonstrate that she intentionally, knowingly, or recklessly caused exploitation by illegally or improperly using his resources for monetary or personal benefit, profit, or gain. There is no monetary threshold. Since it does not claim she stole the funds, the state must show that her use of the assets was improper.
The court focuses on the transfer of money for the car. Since this occurred before the marriage, she cannot argue that the money was community property.
Generous giving was not Mr. Cosper’s typical behavior, as several witnesses testified. Two months prior to providing money for the car purchase, he had been diagnosed with severe dementia.
Mrs. Martinez Cosper knew she was financially exploiting Mr. Cosper. The fact that she sought to have him committed shows she knew he could not make financial decisions. Before her employment began, she went through training about financial exploitation of the elderly, suggesting she was aware of the wrongfulness of her conduct.
Although the state failed to show misapplication of funds, it succeeded in proving financial exploitation.
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