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Financial Exploitation of Elders by Guardians and Conservators | Senate Bill 178

Elder Financial Abuse US Senate Bill 178As America ages, there is increasing focus on protecting our seniors from elder financial abuse. The federal government as well as state and local governments are creating new laws and amending old ones to expand this protection. Communities throughout our country are also addressing how seniors may be safeguarded from financial exploitation.

Journalism at its best sounds the alarm bell in asking hard questions about how institutions or laws are failing us. Journalists are now asking questions about how some guardians and conservators appointed to protect vulnerable adults become perpetrators of elder financial abuse. More specifically, "Is the Adult Guardianship and Probate Court System Being Used to Exploit Elderly People for Profit?" [1]

In the words of one journalist: "It is a nightmare that many families have faced over the last few years, but one that has gone on mostly without public notice. An elderly parent or loved one is suddenly stripped of his or her rights and forced into a court guardianship program that opens them up to financial exploitation, sometimes siphoning their life savings and estates until there is nothing left. Families desperate to find answers and get justice are stuck in years of court battles to rectify the situation."[2]

At Hackard Law we focus on estate, trust, and elder financial abuse litigation. Given our focus, we have current and up-to-date experience in the issues of the day related to the financial exploitation of seniors. To use a medical analogy, we are like emergency room physicians who staff a very busy Level 1 Trauma Center. It doesn't take long to see what kind of activities produce injury.

Groups have sprung up around the country to bring attention to the vulnerability of an elderly person's estate to the wrongdoing of an avaricious guardian or conservator (a "fiduciary"). Such groups highlight the senior's vulnerability: The guardian or conservator is authorized by a court to take all of the financial assets of an elder; Financial assets are changed into the name of the fiduciary; All control rests with the fiduciary; The fiduciary uses the elder's money to pay his or her fees as well as attorney's fees. Family challenges to the actions of a fiduciary miscreant are funded with family money and essentially defended with family money. It is very hard to fight back.

It is gratifying to see that both the U.S. Senate and House of Representatives have looked at this issue and are doing something about it. S.178 has passed both bodies and is now sitting on President Trump's desk. The Committee Report on the legislation[3] notes that:

"For a nation that prides itself on institutionalized care and financial support for its older population-... the United States continues to fall short in efforts to end the abuse and exploitation of our nation's elderly population."

The Report acknowledges financial exploitation of seniors as the most widespread of all the forms of elder abuse. Abuse of "powers under a guardianship, conservatorship, or power of attorney are included in the list of elder financial exploitation. Such exploitation "may result in the loss of a lifetime of savings or a family home."

S.178 is cited as the "Elder Abuse Prevention and Prosecution Act." Sec. 501 of the Act referenced as "Court Appointed Guardianship Oversight Activities Under The Elder Justice Act of 2009" provides for demonstration programs to "assess the fairness, effectiveness, timeliness, safety, integrity, and accessibility of adult guardianship and conservatorship proceedings, including the appointment and the monitoring of the performance of court-appointed guardians and conservators, and to implement changes deemed necessary as a result of the assessments such as mandating background checks for all potential guardians and conservators, and implementing systems to enable the annual accountings and other required conservatorship and guardianship filings to be completed, filed, and reviewed electronically in order to simplify the filing process for conservators and guardians and better enable courts to identify discrepancies and detect fraud and the exploitation of protected persons."

For families who have been harmed by the exploitation from miscreant guardians or conservators this new law - hopefully to be signed by President Trump - brings hope that their voices will be heard. No one is above the law - including court -appointed guardians and conservators. The law's commitment to supporting a multipronged approach to prevent elder financial abuse, protect victims, and prosecute elder abuse crimes is much needed.

If you have a family estate or trust that is threatened because of elder financial abuse, you can call us at Hackard Law. We're dedicated to protecting clients and making wrongdoers answer for their actions. Our number is 916-313-3030. We look forward to hearing your story.

Financial Exploitation of Elders by Guardians and Conservators | Senate Bill 178 from Hackard Law on Vimeo.

[1] https://www.theroot.com/is-the-adult-guardianship-and-probate-court-system-bein-1819328219

[2] Ibid.

[3] https://www.congress.gov/congressional-report/115th-congress/senate-report/9/1

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