When investigating cases of financial elder abuse and taking them to court, we know that money is the abuser's primary motivator. With that in mind, all that's left is to establish just how the abuser was able to misappropriate an elder's funds. And needless to say, when money goes missing, it's a strong clue that wrongdoing is afoot.
Elder financial abuse is an unfortunate reality of trust and estate disputes both in California and throughout the country. Hackard Law's litigation team has found that in seemingly straightforward estate contests, we often uncover serious and even disturbing details of elder abuse and elder financial abuse: the exploitation of a senior for monetary gain.
One of the major issues that estate disputes can hinge on is undue influence. If an ailing elder changes their estate plans in a radical or unexpected manner shortly before, such an action will inevitably bring questions: What was behind the decision to amend the estate or trust? More importantly, who was behind the decision and how might they have influenced it? When the timing and circumstances of altered estate documents stand out even to a casual observer, we have a right to be suspicious.
The wrongful death of a family member is almost always occasioned by the wrongful action or inaction of another person. Wrongful means that someone needlessly endangered our loved one - an endangerment that proved fatal. A close examination of the circumstances surrounding the death often reveals that the risks of danger that took one precious life also threatened the lives of many.
California law provides that damages can be recovered for wrongful death - for the loss of love, companionship, comfort, care, assistance, protection, affection, society and moral support. Explaining these losses to a jury is often accomplished by the telling of stories. Storytelling is the most efficient way for delivering truths and transmitting knowledge. We listened to stories when we were young, and we listen to them when we are old. They move us. They place us at the scene of important events, and they teach us.
A new program unveiled by AARP is making it easier for Americans to stay a step ahead of scams against senior citizens, otherwise known as elder financial abuse. This week the advocacy group has rolled out its interactive Fraud Watch Network as an effective upgrade in continuing efforts to stop financial elder abuse.
There are safety rules to protect all of us from elder abuse, whether physical or financial. Should families choose to enforce these rules, they can civilly prosecute elder abusers. California law provides clear remedies for victims of the abuse, or survivors of the victims, in order to bring wrongdoers to account.
Probate Courts are petitioned for a variety of reasons, among them:
A trust is when one person (trustee) holds title to property for the benefit of another person (the beneficiary). A person called the settlor (or trustor) creates the trust and puts the property in the trust. The settlor, trustee, and beneficiary can be different people. But, one single person could be the settlor, trustee and beneficiary. For example, one person may create a trust and put property in it, make himself the trustee, and use the property for his own benefit. In that case he would be the settlor, trustee, and beneficiary all at the same time. Source: Alameda County Probate Court
At least one in five senior citizens will suffer financial elder abuse - this from a study by the Investor Protection Trust, an advocacy group for victims of scams. In what is described as "the crime of the 21st century," financial elder abuse is a growing phenomenon due to the increase in our population of senior citizens.
If you have an ongoing case of potential elder abuse, the Probate Court can obtain an APS Report.
A successor trustee is generally entitled to discover confidential information between his/her predecessor and the predecessor's attorney. In disputed matters of testate and intestate succession, nonprobate transfers, or Intervivos transactions, parties claiming rights through the decedent generally have a right to discover the decedent's attorney-client communications. Issues commonly addressed include: a list detailing the decedent's priorities; notes of meetings (who attended, what was discussed, when matters were discussed and why changes were being made); document drafts; prior estate planning documents; and all communications between the decedent, his or her representatives and the attorney.
Videotapes are subject to discovery. Such videotapes can on the one-hand evidence good faith efforts to establish competency or on the other hand constitute an attempted smokescreen to hide the undue influence of the newly minted heirs/beneficiaries of the videotaped execution of the testamentary document. The demeanor, voice tone and facial expressions of the testator/settlor must be closely observed. Questions regarding videotapes include but are not limited to: Who is the videographer? Who paid the videographer? Who made the decision to videotape the execution of the will/trust? Is the tape time stamped? Is the tape edited? Who edited the tape? Was the testator/settlor prompted/led by an attorney/heir/beneficiary to recite a particular script? What was the testator/settlor's physical appearance? Who was present at the videotaping? Who brought the testator/settlor to the video session? Pay attention to the testator/settlor's demeanor, voice tone, and facial expression.
Probate Code Section 82 (a) "Trust" includes the following: (1) An express trust, private or charitable, with additions thereto, wherever and however created. (2) A trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. (b) "Trust" excludes the following: (1) Constructive trusts, other than those described in paragraph (2) of subdivision (a), and resulting trusts. (2) Guardianships and conservatorships. (3) Personal representatives. (4) Totten trust accounts. (5) Custodial arrangements pursuant to the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state. (6) Business trusts that are taxed as partnerships or corporations. (7) Investment trusts subject to regulation under the laws of this state or any other jurisdiction. (8) Common trust funds. (9) Voting trusts. (10) Security arrangements. (11) Transfers in trust for purpose of suit or enforcement of a claim or right. (12) Liquidation trusts. (13) Trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind. (14) Any arrangement under which a person is nominee or escrowee for another.
Probate Code Section 16060. The trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration. The trustee's duties include the administration of the trust with skill, care and caution, solely in the interests of the beneficiaries.
Some signs of elder abuse, like physical violence, are easier to spot than others. At times it can be difficult to see clear indications of other phenomena that are just as harmful - here we're speaking of isolation and emotional abuse.
Elder abuse is a phenomenon that often goes unnoticed in our communities, even in its most concrete form: physical assault and neglect. As terrible as it sounds, violence and cruel, neglectful behavior are very real actions often perpetrated against senior citizens.
Nobody would argue against the fact that our smartphones are an enormous convenience to us for communicating and accessing information on the go. And our children, "digital natives," have grown up with these technologies, treating them as a matter of second nature. Although these devices are undoubtedly useful to us, they can also distract us from realities of everyday life to the point of putting our safety at risk - and this has shown to be the case especially for teenagers.