Victoria Hertz

Prosecutors allege a woman abused her position at an assisted living facility to obtain $12,000 worth of loans from one of the facility’s residents and got the 88-year-old to move out of the facility and into her Powell home.

However, while a judge indicated that the allegations were a concern, he ruled that they didn’t amount to a crime. At a June 23 hearing, Park County Circuit Court Judge Joey Darrah dismissed a felony count of exploitation of a vulnerable adult against Victoria L. Hertz. Darrah said it was unfortunate that he had to toss the case against Hertz, but he found the elderly resident didn’t fit the definition of a vulnerable adult. Although the woman has physical limitations, she appeared to be fully capable of managing her financial affairs, Darrah said.

“I think it’s unfortunate what happened here,” the judge said of Hertz’s alleged crime, adding, “I have family members in facilities like this. I understand what happened here. But I just don’t think it meets that definition.”

Although the case was dismissed, it isn’t over, as the Park County Attorney’s Office is making another attempt at prosecuting Hertz.

The 88-year-old woman was a resident at Absaroka Senior Living in Cody, where Hertz worked as a CNA for several years. The woman’s adult son and supervisors at the facility became concerned this spring after learning Hertz had spent “an unhealthy amount of time” with the woman during night shifts and on trips to Billings, Mount Rushmore, church services and other places, according to an affidavit from Cody Police Detective Rick Tillery.

The woman’s son told police that he believed Hertz had crossed ethical boundaries as a caregiver. Specifically, he said Hertz came into his mother’s apartment while on-duty “to breakdown and cry about her personal financial issues, which tugged at [the resident’s] heart strings and created an opportunity for [the resident] to feel obligated to help Hertz financially by offering her money,” Tillery recounted.

Since September, the woman loaned Hertz $12,000 to help with unspecified bills. The woman and Hertz both told the detective that some of the loan had been paid back, but neither knew how much; the woman said Hertz “was only required to pay back what she can afford whenever she is able,” Tillery wrote.

The cash represented a significant percentage of the woman’s assets, the affidavit indicates, and the woman’s son worried the loan could jeopardize her ability to qualify for Medicaid in the future.

The investigation was apparently triggered when the woman informed Absaroka Senior Living leaders that she planned to leave the facility and move into Hertz’s Powell home. The woman planned to pay Hertz $800 a month and help pay for food, the affidavit says; she also purchased a toilet and other items to help Hertz fix up the home.

After managers learned Hertz had borrowed money from the woman and violated company policies, Hertz was fired and barred from Absaroka Senior Living in early May. However, as the Cody police and internal investigations were underway, Hertz reportedly continued to spend significant amounts of time with the woman away from the facility.

The woman’s son, Absaroka staff and Tillery tried to talk the woman out of moving in with Hertz. They were specifically concerned that the 88-year-old — who uses a walker and has health issues — would suffer an injury while navigating the stairs of Hertz’s split-level home, while the son worried about its cleanliness, according to the affidavit.

The conflict reportedly caused the woman to suffer a mental health breakdown, resulting in a trip to Cody Regional Health Emergency Room, but she ultimately chose to move in with Hertz on May 23. The criminal charge followed on June 12 and Hertz was barred from having any contact with the woman while the case was pending.

The charge filed by the county attorney’s office alleges that Hertz intentionally exploited a “vulnerable adult,” which state law defines as someone “unable to manage and take care of himself or his money, assets or property without assistance as a result of advanced age or physical or mental disability.”

Deputy County Attorney Jack Hatfield argued the statute should be read as applying to people who can’t care for themselves as a result of a physical disability, noting the woman needs assistance with her day-to-day living. Hatfield contended that the Legislature intended to protect people who “are in the exact same situation that [this resident’s] in — she can’t take care of herself without assistance.”

He also said that, “this is clearly not something that someone would reasonably expect that a caregiver is going to do with a vulnerable adult.”

Darrah agreed, to an extent.

“Certainly, I think, probably that’s what the Legislature wanted to address and deal with,” the judge said, but the statutes must be strictly interpreted, as they are written.

Darrah read the law as saying “the inability to manage your affairs or your money has to be a result of either your mental disability or physical disability.”

“And I don’t see the evidence here,” he said.

Hertz’s defense attorney, Sarah Miles, interpreted the statute the same way. Miles argued that the evidence showed the woman was fully competent and was not coerced into her decisions.

“The testimony was that [the resident] gave these loans, gave these sums of money to Ms. Hertz. She did that knowingly, willingly,” Miles said.

After Darrah dismissed the case, Hatfield announced his intent to refile the charge and make another attempt at clearing a preliminary hearing.

Knowing the case would be refiled, “gives me a little bit more solace,” Darrah said. “This was not an easy decision.”

Hertz is due back in court Friday to answer to the refiled felony charge. The elderly woman, meanwhile, has reportedly moved out of state.