Detecting and Defending Financial Elder Abuse
It is estimated that six million seniors are subject to financial elder abuse each year. Financial elder abuse can take many forms: deceptive advertising for products with hidden charges or that simply do not work as promised; outright shams by con artists preying on seniors with diminished capacity; theft by family members, including caregivers; as well as family members who force a victim into changing his or her wills, trusts, durable powers of attorney and titling on bank accounts. Financial elder abuse costs seniors billions every year and this cost may continue to grow as the elderly continue to make up a larger portion of our population.
The types of victims are as varied as the forms of financial elder abuse. Men and women are about equally likely to be a victim. A victim may live alone or with family members, may be thrifty or not thrifty with money or may even be financially sophisticated. It appears that the only common characteristic of a victim is some diminished capacity along with exposure to deceptive advertising, fraudulent telemarketers and/or coercive family members. Check out a recent, comprehensive study of the forms of financial elder abuse and its victims.
This was the topic of a presentation I made last month for my firm's annual Estate Planning and Fiduciary Litigation Seminar. Whether we are dealing client/customers or our own family members, there are steps we can take to help prevent financial elder abuse. We first need to know the signs of financial elder abuse. Is an elderly person with some diminished capacity heavily reliant on others who may be coercive? Has the potential victim suddenly changed his or her trust professionals, such as doctors, lawyers and investment advisors? Has the potential victim suddenly made a dramatic change in his or her longstanding estate plan?
Despite our strict rules on confidentiality, attorneys are allowed under our legal rules of ethics to take steps to investigate financial elder abuse, such as by talking to doctors, close family members or professional advisors or in rare circumstances seeking a guardianship and conservatorship for a client.
Carefully-drafted durable powers of attorney and trusts can be very useful in preventing financial elder abuse. The agent designated under a durable power of attorney or the trustee of a trust may have immediately exercisable powers to take over bank accounts and other property if financial elder abuse is suspected. Of course, sometimes it's the agent or trustee him or herself who is the perpetrator of financial elder abuse. If co-agents or co-trustees are named, they may be able to supervise each other's activities or each co-agent/co-trustee may have responsibility over a limited portion of the assets under their control. In addition, interested parties may be able to bring lawsuits against agents or trustees to divulge details of actions taken with the potential victim's assets.
For family members of deceased victims of financial elder abuse, legal actions may be brought against the perpetrators through claims for undue influence or intentional interference with an inheritance. Family members also may be able to claim that an estate plan signed when the victim was incapacitated should be set aside for lack of testamentary capacity.
Thus, I have found in my practice that financial elder abuse is a pervasive and growing problem but can be prevented if we are aware of the signs of financial elder abuse and are willing to make a prompt inquiry.
If you have questions on these issues, please contact Scott Filmore, or the Stinson Leonard Street attorney with whom you regularly work.