The elderly are frequently targets of financial abuse; however, in these tough economic times, elderly victims are targeted even more frequently. Abusers are not always fly by night repair men or individuals calling on the phone with a “free offer.” Potential abusers of the elderly are conservators, caregivers, agents acting under durable powers of attorney, trustees, representative payees, financial planners, attorneys, family members, friends, and caregivers.
Types of Elder Abuse
Elder abuse is an act or failure to act by a person required to act that results in harm to an older person. Forms of elder abuse include 1) physical abuse, 2) sexual abuse, 3) emotional and psychological abuse, 4) neglect, 5) abandonment, 6) self-neglect and 6) financial exploitation.
Financial exploitation is the illegal or improper use of an older person’s funds, property, or assets. Examples of financial exploitation are 1) telemarketing fraud, 2) identity theft, 3) home improvement scams, 4) predatory lending, and 5) abuse of estate planning fiduciary duties. In this article, we will focus on the abuse of estate planning fiduciary duties.
Exploitation in Estate Planning
Estate planning is the ordering of one’s legal (and sometimes non-legal) affairs in preparation of one’s incapacitation or death. Individuals frequently maintain many estate planning documents including wills, codicils, trusts, power of attorney, health care surrogate, living wills, and other miscellaneous documents. Often, an elderly individual will sign over some or all of their legal power as an individual to a trusted family member or caregiver. An example of this is a power of attorney wherein an elderly individual will allow a trusted individual to make certain legal or financial decisions on their behalf. The opportunity for financial exploitation here is rampant because of the vast power transferred in the legal document. Even though the elderly individual may believe this person is a trusted individual, the individual may have their own motives, which may include wiping out the individual financially, involuntarily placing the elderly individual in a long-term medical facility, or prematurely making life or death medical decisions.
Warning Signs
Behavioral signs of financial exploitation of the elderly are that the individual is withdrawn, afraid, secretive, or hesitant to talk freely with others. Additional indicators of financial exploitation is that the abuser becomes overly protective of the elder individual, refuses to allow visitors, and/or isolates the victim from other friends and family.
Financial signs are unusual bank account activity (is the individual even capable of physically getting to an ATM machine, etc.); forged financial documents; documents that were signed or financial transactions that took place when the elder individual is mentally incapable of understanding the transaction or what s/he was signing; several unpaid bills after someone has been assigned this task; a change in spending habits; and someone who shows up and tries to weasel their way into the elder individuals life and finances.
Prevention and Remedies
Many of the above situations can be prevented by consulting with my office to ensure your legal documents not only reflect your needs and desires, but protect you from financial exploitation.
If you believe someone is a victim of financial exploitation, contact my office so we can discuss your legal options, including possible criminal charges.
