The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of the University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Stealing In Thy Father's Name

A generation ago stealing was a straightforward, and often risky, affair.

A thief was required to physically remove from the victim, or from the victim's premises, money, jewelry, shotguns and other desired items of value.

There was the risk of being observed, arrested, attacked, injured, or even killed. And although the theft might go undetected, there was the problem of converting the bounty to cash, which meant that other persons often became aware of the nefarious conduct.

Today, stealing can be accomplished in a much cleaner fashion. No "thief in the night" risk. No confrontation with the victim. No encounter with law enforcement officers and being wrestled to the ground. All that is needed is a pen, a credit card application, and someone else's social security number. It's called "identity theft."

That was the situation described by a caller to the USD Senior Legal Helpline (1-800-747-1895; mmyers@usd.edu).

"I am calling on behalf of my 74-year-old stepfather," she began. She said her stepfather resides in an assisted living facility in a nearby state and has a son, age 42, who lives on the West Coast. The son is allergic to gainful employment and has a history of employing dishonorable means to acquire cash.

It turns out this time he falsely obtained a credit card, using his father's social security number, then embarked on a 40-day, $63,000 buying spree. After explaining that her stepfather was barely getting by on social security and unable to make any payment on the card, she asked: "My stepfather doesn't want his son to go to prison and wants to know whether he could 'accept' the debt, then declare bankruptcy?"

"No! No! No!" I advised. "Tell your stepfather that it is not 'his' debt to accept. It was incurred through fraud. If he represents to a bankruptcy court that he, rather than his son, incurred the debt, he would be guilty of perjury and would likely join his son in the criminal court system."

Fathers understandably love their sons, even when they steal in their father's name. But this time the "kid" is on his own. He used deception rather than a crowbar to break into the modern-day credit system. He deserves to be wrestled to the ground.

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