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Financial Elder Abuse

Financial Elder Abuse AttorneysFinancial elder abuse occurs when someone-often in a close family or trusting caregiving relationship-uses influence to control, manipulate, or misappropriate an older individual's finances.

The Federal Older Americans Act of 2006 defines elder as someone older than 60, and financial abuse (or financial exploitation) as:

The fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit, or gain, or that results in depriving an older individual of rightful access to, or use of, benefits, resources, belongings, or assets.

How Does Financial Elder Abuse Occur?

Financial elder abuse can happen subtly and insidiously. Of course, many caretakers are selfless, devoted assistants. However, caregivers may rationalize that they deserve gifts, bonuses, or more compensation. Some may feel entitled. California law addresses this clearly-caregivers and family members should feel reluctant to indiscriminately accept gifts.

In California, any gift to a caregiver is presumptively obtained through undue influence (see California Probate Code §21380). This law applies to both trusts and wills. Strictly following the Certificate of Independent Review process set forth in California Probate Code §21384 can rebut (or overcome) the presumption, or automatic assumption, of undue influence.

Gifts to Caretakers: Bad Acts or Gracious, Generous Thank Yous?

Although financial elder abuse is most common among family members, it is also a significant problem with caregivers. An elderly individual who needs a caretaker inherently is sick, disabled, or otherwise suffering from a physical or emotional impairment. In many cases, caretakers and the people who need them form close bonds. In these instances, older adults are often susceptible and vulnerable to the influence of others. Given the unique caretaker role and relationship with an older person, many states passed laws to protect the elderly from financial abuse by their caregivers.

Generally, people can give away their property or money as they see fit (whether by will, trust, or otherwise). While we may hold our own opinions about the wisdom or appropriateness of giving particular gifts, the law presumes everyone is of sound mind and free to do whatever they want with their assets. The tables turn, however, when people lack the competence to understand or appreciate the nature of their acts.

A Typical Scenario

This scenario is not hard to imagine-it happens frequently. Mabel (a widow) is 77. She recently broke her hip, her eyesight and memory are failing, and she has difficulty walking. Generally, she doesn't feel well, is frail, and is often bedridden, immobile, or incapacitated. Her two children live about 45 minutes away but are often too busy with their own families and work commitments to visit or call mom, let alone help her on a regular basis.

The children hire a caretaker to assist Mabel for eight hours daily. The caregiver helps Mabel with many day-to-day tasks such as shopping, preparing meals, bathing, grooming, doing dishes, laundry, cleaning, helping with hygiene needs, visiting doctors, dispensing medication, getting recreation, and safeguarding against emergencies.

Mabel and the caretaker grow closer as the widow becomes increasingly distant (or estranged) from her children. Mabel is often angry, irritable, surly, or cantankerous-she has few friends, no real social network of support, and her caretaker often bears the brunt of Mabel's antagonism and frustration. Mabel and her caregiver start to feel stranded by others-alone together.

Not surprisingly, a caretaker often feels hurt, abused, or mistreated. Caring for Mabel physically and emotionally drains the caretaker. Mabel's incessant, strident demands (often without a thanks) exhaust her caregiver. Trying to talk out her concerns rarely works. Instead, it can fester with the caretaker.

Even the most selfless, honest caregiver can at times feel unappreciated and taken advantage of. At that point, it's not a big leap for the caregiver to feel that she deserves more. It could start with something relatively small: Keeping the change after a grocery purchase, buying a few extras, ordering an item online. Once the caregiver crosses that line, it can snowball: Writing checks to herself, friends, or others; using Mabel's ATM cards; accessing Mabel's online banking to pay the caregiver's bills; transferring large sums of money to herself; taking jewelry, valuables, or items from prized heirloom collections. The caregiver didn't see herself as criminal or a predator-it can evolve slowly with time. Make no mistake though: Financial elder abuse is predatory.

When Can an Elderly Person Give to Her Caregiver?

California does recognize that under certain circumstances caregivers can rebut the presumption of undue influence. The process is fairly straightforward, contained in California Probate Code §21384:

· An independent, impartial attorney (someone without a financial interest or other bias) must review the instrument (will or trust)

· The independent attorney must advise the transferor about the nature and consequences of the intended transfer, including the effect of the intended transfer on the transferor's heirs and on any beneficiary of a previous Will or trust

· The attorney must give the advice away from the presence of any heir or proposed beneficiary

· The attorney must attempt to determine if the intended transfer is the result of fraud or undue influence

· The attorney signs and delivers to the transferor (gift-giver) an original certificate; the statute provides the form

If you or a loved one want to transfer assets to a caregiver, speak to an attorney to avoid any future legal issues regarding the gift.

Were You or a Family Member Hurt by Financial Elder Abuse? Call an Experienced Los Angeles County Lawyer for Help

If you or someone you know was hurt by financial elder abuse, or you suspect it, don't delay. Losses may grow large, and the sooner you call, the better your chances that we can help stop it and recover your damages. The experienced California lawyers at Hackard Law focus on the elderly, and handle many cases regarding fraud, theft, and undue influence perpetrated against older persons. Call us right away at (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles, or contact us confidentially.

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