There is no excuse for elder financial abuse. Our families, communities and legal system throughout Sacramento County and areas like Placer and El Dorado Counties have worked in recent years to protect our loved ones from elder abuse. That said a recent trial court ruling brings to mind how families with elder adults share a deep fear about the physical, mental and financial safety of their loved ones. Elder abusers, however reprehensible, often find ways to circumvent the protections that our families and society attempt to provide our elders.
So today let's set out 5 major fears that Sacramento families have about elder financial abuse:
1. Caregiver Abuse.
When a Michigan trial judge dismissed a family's lawsuit against a home care company for sending a caregiver with two felony criminal warrants to care for a man in his 80s the national press erupted with questions about how this could happen.
In this particular case a caregiver company - Kentucky-based ResCare - sent a woman to a retired Detroit-area businessman to look after his ailing wife, who had dementia. It didn't take long until the wife's jewelry began to disappear as well as the businessman's fortune. Court filings estimate the losses to be as high as $1.5 million. The caregiver, if she could be called that, moved the businessman out of his bedroom into the basement of his lakefront home and moved her mother into the home. The businessman's wife died, and within months the caretaker "married" the businessman.
When the businessman's family members finally intervened and removed him from his home, his finances were in a shambles. He didn't have bank accounts with positive balances or working credit cards. He had his social security monthly payment - that's it.
The Michigan businessman and his family are simply representative of the widespread abuse affecting our growing elderly population. We have handled a number of cases where predators, posing as legitimate caregivers, soon take advantage of the elderly. This misconduct includes physical and medical neglect often coupled that with embezzlement and theft.
The Michigan case didn't work out well - not that any of these abuse cases by nature work out well. Even with financial recompense, the seismic family emotional repercussions stemming from misplaced trust don't easily recede.
2. Financial Exploitation.
Elder financial abuse is a common occurrence. Law enforcement agencies throughout our country are aware of the problem and many aggressively pursue enforcement of laws protecting the elderly. That said if laws covering a variety of crimes fully protected all of us our history since the issuance of the Ten Commandments would be far different than it is.
Financial exploitation takes many forms. My experience in case intake yields regular surprises. The sale of a Sacramento elder's medications; Grocery bills more attributable to cash withdrawals taken by caregivers than bread and milk purchased for the elderly; Lawn service for a small yard at $300.00 per week; Money used for gambling; Medical care and dental care neglected because of the theft of funds; and assignments of bank accounts into joint tenancy with a wrongdoer.
Most families with victimized elders could readily add to the list of the means by which elders are financially exploited. Vigilance helps. Here are some examples of vigilance: Be very careful and take precaution when hiring caregivers. Simply hiring a caregiver company is not an insurance policy against wrongdoing. Watch your elder's bank accounts - particularly withdrawal activity or changes in accounts. Sometimes the horse is out the barn door before you discover bank transfers but it is still better late than never (or a year later). Be careful and inquiring when you hear that your elder has been making frequent trips to the bank.
Be vigilant in watching your elder's mail. We have seen circumstances where financial information is hidden from the view of the elder and his or her relatives. This is a sign of great danger. Some financial advisors believe that an elder's credit report should be ordered periodically. This could also be a good "canary in the coal mine." We have seen cases where social security checks were cashed by wrongdoers. Direct deposit of social security checks, retirement and dividend checks provide some distance between a wrongdoer and your elder's money.
Review receipts from vendors (grocery store, pharmacy, Costco etc.) for goods purchased for your elderly relative. We have seen wrongdoing first discovered in this review. A $350.00 receipt from the local grocery store showing a $200.00 cash withdrawal can make even the most oblivious suspicious.
Watch for service scams. New heaters, air conditioners, garbage disposals or lawn irrigation systems sold at a large premium are not unusual.
Reverse mortgages can be a blessing or a curse. Some reverse mortgages provide a stable predictable monthly income to senior adults that can make life easier. It is more than once that we have seen reverse mortgages with large cash payments made to senior adults with questionable capacity taken by younger adults with full capacity. This is a surprise often discovered at the death of the senior.
3. Misuse of Powers of Attorney.
Durable powers of attorney can be a great legal vehicle for senior adults to appoint a trusted agent to handle health, legal and financial matters. Such powers, when used with prudence by trusted family members or agents, provide legal protection when and if the senior becomes incapacitated or incompetent. Such powers when used correctly are an unfettered blessing. If misused, such powers can destroy a lifetime of planning.
The effective and prudent use of durable or medical powers of attorney brings no headlines. In the same way, misuse of such legal vehicles is often kept secret and only met with incredulity by relatives when discovered.
We have seen a number of incidents where powers of attorney were misused at the end of life of an elderly adult to benefit the holder of the power of the attorney. Examples of misuse include: The transfer of real property to the holder negating trust provisions that provide for a different distribution; entry and seizure of safe deposit personal property coupled with later denials of the existence of such properties; dramatic changes in bank accounts that are inconsistent with will or trust provisions; and transfer of vehicles.
Some holders of medical powers of attorney have misused their powers to prevent family members from visiting the hospital bed of a gravely ill or dying relative. California has recently addressed this issue in legislation - making such abuse much more difficult. In the meantime stories abound about how a son or daughter, grandson or granddaughter, could not visit a dying relative because a stepmother or stepfather prevented the visit. If these problems were not so common there would be little need to address it. For those in Sacramento who face the issue, they should immediately contact a lawyer familiar with elder abuse laws. Medical facilities should also be aware of their own limitations is preventing visits.
4. Isolation and Freeze-Outs.
Isolation of elders from their families, neighbors and loved ones is an all too common occurrence. Changed door locks, new locked front gates, mobile telephone seizures, failure to answer or open the door to visitors, and unreported removals of elders from their homes are part and parcel of isolation. These actions cause family members to fear for the safety of their loved ones and also may create a sense of helplessness. Such conduct is all too common.
For Sacramento residents and Californians who encounter such abuse, the first step is to call Adult Protective Services or its equivalent. Local law enforcement agencies also often have task forces that deal with such abuse. Civil lawyers skilled and experienced in elder abuse issues can assist in such contacts and can also address such issues in civil filings that include restraining orders and other appropriate measures.
Words of warning - while isolation and freeze-out conduct might be obvious to the family member of the elder, such conduct may not be as obvious to authorities. Criminals and wrongdoers do not usually jump at the chance to admit guilt. While there is no excuse for elder abuse, wrongdoers will readily provide excuses. Common excuses include "I had to keep everyone away because they just upset" the elder; "We had to move Grandpa to Arizona because they had the best medical care there"; "I had to keep Aunt Bessie from the phone because she only got upset when she heard from her relatives"; "Of course I had to keep my dad away from my sisters and brother because they are greedy and they only wanted to get his money"; and "I needed to protect my uncle because he was afraid that his children were going to hit him, push him down or lock him up in a mental asylum."
Don't expect the isolator to readily tell you that she bought her boyfriend a new Harley with grandma's money, that the house and surrounding are a pigsty because she is doing meth, or that all of grandma's jewelry was sold to support her drug habit. You've got to dig at it when your loved one is isolated - when you are frozen out. The process can be demanding, frustrating, and can cause anxiety. Still don't turn your back on your elder - do something - protect the vulnerable.
5. Unwarranted Transfers to Outside Senior Facilities.
First, an obvious acknowledgment: Sacramento families often have difficulty in transferring and elderly family member to an assisted living or nursing facility in situations where it is absolutely in the senior's best interests to have such a transfer. I'd venture to say that most transfers are absolutely warranted and done with love and care for the senior. It is the unwarranted transfers, coupled with wrongdoing, that can petrify family members.
The common setting for unwarranted transfers is the presence of a family member - maybe a stepbrother or stepsister - who is estranged from the senior's other children and family members. For whatever reason and by whatever treacherous means the wrongdoer is able to get the elder into his or her home and get the elder's estate plan altered. Once the estate plan is effectively altered it can be "Katy bar the door" for change. More than once we have seen circumstances that the senior is transferred against his or her wishes to a facility geographically removed from other family members. In the meantime personal goods and family mementos are often discarded or hidden. These actions often engender even greater anger than money transfers. You simply can't replace photographs, family heirlooms, military awards, or personal collections with money. The discarding of important family treasures is an affront to the remaining family members - a complete disregard of important family history - and a glaring mark of the greed of the wrongdoer.
Difficulties abound when trying to address unwarranted transfers. First off, the senior often lacks capacity. So what do we look at when the senior lacks capacity? One way to deal with an incompetent senior is to seek a conservatorship of his or her person and estate. This is not without complications. Does the senior really wish to be supervised by a stranger or even a benign family member? Conservatorships can be expensive and time consuming. Prospective conservatees are afforded counsel - public defenders or otherwise. The costs of such counsel is paid from the conservatee's estate. Courts are often reluctant to appoint conservators even for those with great impairment - it is the taking away of one's freedom, even if such freedom increases vulnerability to scams and unscrupulous people.
What Do We Do To Increase Vigilance?
Protecting your elderly family member is virtually a full time job - for many it becomes a full time job of care, comfort, housing, medical visits, and protection. Such duties may be embraced with love but it is a love coupled often with real suffering. It is not easy to care for a parent with dementia - or with chronic physical or mental problems. Both physical and mental exhaustion often accompany such care. Sibling issues arise between those who are near the elder family member and those who are geographically removed. Friends of the elder might be critical of the care or protections that are put in place for the elder's benefits. Not all is black and white. Taking care of an elder adult often reminds us to reflect on the meaning of the Fifth Commandment: "Honor thy father and thy mother." Doing this honor is day-to-day and not without doubt or challenge.
At Hackard Law, we protect clients' estate and trust interests against predators who commit elder financial abuse. We work throughout the Sacramento area, including in Placer and El Dorado Counties. Call us today at 916-313-3030 so we can see how to best help you.