Elder-Law-Advocate

Actual Cases

The following is just a sampling of some of the cases of elder abuse that clients have asked us to assist on.  When reviewing these actual cases, please note that nearly every one of them involves a relative who attempted to take advantage of the elder:

  • Son’s unbelievable use of Powers of Attorney

79 year old dad was a Korean War combat wounded vet with a VA disability benefit for post traumatic stress disorder.  Over his lifetime, he had purchased five real properties in California, Nevada and Arizona – all owned free and clear.  He had also managed to save about $300,000.

As dad’s mental capacity continued to diminish, the son saw his opportunity to strike.  He first had dad sign powers of attorney for financial and healthcare decision making.  With the financial power of attorney, he then went to dad’s bank and added his name to all accounts.   Within a year, son had withdrawn all monies and continued to withdraw dad’s monthly VA disability money.

Son also transferred title of all five properties into son’s name.  He sold one of the properties for substantially less than fair market value and pocketed the proceeds.

Using the healthcare power of attorney, he then warehoused dad into a nursing home and gave written instructions that dad was to have no visitors and no contact with anyone unless son first approved it (Note: “isolation” is often a key element in carrying out financial abuse.).  Obviously, powers of attorney can be quite dangerous if placed into the wrong hands.

With the coordinated efforts of county agencies, we were able to remove dad from the nursing home and return him to his own home with home health care.  Our office then immediately filed suit in California, and coordinated the services of an Arizona and a Nevada attorney, and lawsuits were filed in those states as well.  Lis pendens were immediately recorded in the respective counties in all three states to prevent the sale, transfer or borrowing of money on any of the properties.

After substantial litigation, we recovered all remaining properties and established a conservatorship for dad to make sure that the court now monitors dad’s assets and protects his rights.  The son has been permanently disinherited as an heir. 

  • The Crooked Niece

Our client was hospitalized with severe depression and attempted suicide following her husband’s death.  The crooked neice goes into the  hospital room with a notary public and convinces our client that she needs to sign a power of attorney because the state is going to seize all of her assets.

With the power of attorney, the niece transfers title of the client’s home into niece’s name, and then arranges for the client to live in a board and care facility.

We filed suit for elder financial abuse and, within a few weeks, were able to recover title back into our client’s name.  The District Attorney’s office is now prosecuting the niece for elder financial abuse.

  • The Shameless Granddaughter

Our client had just completed 20+ chemotherapy radiation treatments for bone cancer.  Her estranged granddaughter showed up at the door one day, took our client to a shady lawyer’s office, and had our client sign a deed that transferred her home to the granddaughter.

Initially, we had been asked to assist the client with Medi-Cal planning – to qualify her to receive Medi-Cal benefits to pay for her anticipated nursing home costs.

After gathering the facts, we determined that our client had sufficient assets, health insurance coverage, and was eligible for in-home supportive services.  Therefore, a nursing home placement was not required.

Upon discovering the wrongful transfer of title of our client’s home, we immediately filed suit and recorded a lis pendens to place a hold on any further transactions regarding the property.

Within weeks, we recovered title back into our client’s name, disinherited the granddaughter, and secured the necessary arrangements that allowed our client to remain at home until her passing, and avoid a nursing home placement.

  • The Daughter’s Thievery

Our client had been taking medication for depression.  One morning while she was sleeping and heavily medicated, her daughter (who lived in Australia) showed up with a notary public in tow.  The daughter roused our client out of bed, and had her sign her name to a new grant deed, thus unknowingly transferring title of her home to her daughter.  Daughter then returned to Australia.

Several months later, our client’s depression was under control and she no longer needed to take the medication.  However, when she went to apply for a home loan, she was told that she was no longer the owner of the property.  She then sought our assistance.

A lawsuit was immediately filed; however, we faced a problem in effecting personal service of the summons and complaint because daughter lived in another country.  Fortunately, our client informed us that her daughter would be visiting in California on a date certain.  To daughter’s dismay, she was personally served soon after she stepped off the plane.

Her Australian attorney quickly convinced her to execute the new deed we had prepared, and thus title to our client’s home was quickly transferred back, enabling her to obtain the loan she had wanted.

  • The Greedy Son

The greedy son knew his dad was suffering from dementia.  Son had no job, no income, and had just been released from prison after having served a two year felony sentence for drug dealing.  Son quickly moved in with dad, and convinced him to put son’s name on title to the house.  Of course, son wouldn’t share in making any of the monthly mortgage payments.  Instead, he used dad as a “cash cow” and lived in the house rent free.  When the siblings learned of his freeloading and one-half ownership of dad’s house, they confronted the son – only to be told that it was dad’s wishes and he couldn’t move out or return his (purported) one-half interest back to dad. After a lawsuit was filed, son agreed to leave but would not give up the house unless dad paid son $35,000!

The trial verdict awarded full title of the home to dad, plus $14,000, plus court costs, plus attorney fees.

  • Son’s bullying of mom and her caregivers

Son was in his mid-forties, had no real job, and lived with his incapacitated mother and her full-time caregivers.  Unfortunately, this son was a bully who would verbally abuse his bed-ridden mother and frighten her caregivers.  This abuse became so heated that no other family members felt safe when they tried to visit their mother, and 25 caregivers from the home healthcare agency refused to return to mom’s house.

An elder abuse restraint order was obtained and son was removed from the home.  As a result, family members were now free to visit with mom, 24/7 caregiving staff were reinstated, and mom’s health and happiness improved measurably.

  • The gypsy

Our elderly client was despondent and lonely following the death of his wife.  He placed an ad in a local senior magazine, seeking friendship.  Quickly thereafter, a younger woman called and invited our client over to “get to know each other”.  Unfortunately, this woman was a type of gypsy who preyed on vulnerable elderly men.

Within three days, she convinced him that they could live in harmony and everlasting bliss – if only he would purchase a home where the two of them could live their lives together.  Unfortunately, our client fell for it and withdrew his life savings and purchased a home – in both their names.

Within days, this gypsy verbally abused and threatened our client until he threw up his hands and walked out of his new home – left with only his small motorhome to live in.

An elder abuse lawsuit was filed and, through a summary judgment proceeding, the court ordered that 100% title to the home and real property were returned to our client.  The gypsy hasn’t been heard from since.

  • The greedy brother

Elderly dad was suffering from dementia and was becoming more and more susceptible to undue influence.  One of his two sons decided that it was time to take advantage.  This son prepared a grant deed for his father to sign.  This deed added the bad son (and his wife) onto the title – so that dad, his bad son, and his wife were all title owners of dad’s house.  When dad passed away, the title completely transferred to the bad son and his wife.

At the time he signed the grant deed, dad wasn’t capable of understanding what he was doing, and he certainly didn’t realize that this act would essentially disinherit his other son from receiving a one-half interest in the home.  When dad passed away, the bad son and his wife claimed full ownership of the home.

An elder financial abuse lawsuit was filed and, near the eve of trial, the bad son (and wife) agreed to transfer one-half of the home to our client.

  • What Happened to Mickey?

Although our law firm was not involved in this case, we’re sure it will assist our readers in understanding elder financial abuse, and how it can happen to nearly anyone.

Remember Mickey Rooney?  His acting career began back in the 20’s, and includes some 200+ movies, most recently playing a crusty bad guy in Night at the Museum with Ben Stiller.  With all that fame and money, he must be doing all right in his golden years … yet ….

Something bad happened … something that happens to untold numbers of elderly victims. 

In February 2011, Mickey needed to obtain a temporary restraining order against his stepson (Christopher) and his wife (Christina).  Mickey alleged that they committed verbal, emotional and financial abuse and denied him such basic necessities as food and medicine, leading to bouts of depression.  Essentially, Mickey felt he was made a prisoner in his own home by the use of threats, intimidation and harassment.1

In September 2011 he, along with his conservator, filed an elder abuse claim against Christopher and Christina, alleging that they blocked access to his mail, obtained exclusive control over Mickey’s personal and business accounts, used those monies for their own use, and then transferred Mickey’s income to their own personal accounts2.

How could this happen?

In a nutshell, it’s called old age vulnerability.  It’s often exacerbated by one or more varying types and degrees of dementia3.  The signs of financial vulnerability are myriad, but often include:

·            A weaker state of mind4.

  • Being accompanied by a stranger to the bank that encourages them to withdraw large amounts of cash.
  • Being accompanied by a family member or other person who seems to coerce them into making transactions.
  • Not allowed to speak for themselves or make decisions.
  • Implausible explanations about what they are doing with their money.
  • Concerned or confused about “missing” funds in their accounts.
  • Receiving insufficient home health care given their needs and financial status.
  • Isolation from others, especially family members.
  • Unable to remember financial transactions or signing paperwork5.

Perpetrators exploit this vulnerability in a number of ways, most prominently by the use of financial powers of attorney.  These documents give the bad guys complete legal authority to do everything, financially, that the elder victim could do: access bank accounts, obtain a mortgage, or transfer title to a home.  Placed into the wrong hands, these powers of attorney become a license to steal.

Through intimidation, manipulation and coercion, sufficient undue influence is often wielded to change the elder’s trust or will to substitute improper beneficiaries.  Once accomplished, an advance health care directive can then be used to give the perpetrator authority to warehouse and isolate the victim into a “locked down” nursing home with instructions that no outside communication with family or friends is allowed.

What can be done?

The California legislature has recognized this vulnerability and enacted Penal Code §368, which finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.

Civilly, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)6 comes to the rescue.   Similar to Penal Code §368, EADACPA provides nearly every civil remedy one could ask for, including post-mortem recovery for the elderly victim’s pain and suffering as well as the possibility of enhanced attorney fees.  Interestingly, the legislature included these enhanced remedies to encourage private attorneys to pursue elder abuse claims that, without these protections, would often be rejected for fear that the elderly victim (and their general damage claim) would die during litigation.

Conservatorships should be a “remedy” of last resort.  Financial and health care powers of attorney are sufficient and simple answers to meet the needs of incapacitated adults, so long as they’re used solely for the benefit of the elder.  When used improperly, a conservator may need to obtain court authority to make financial and medical decisions and, with the concurrent jurisdiction of the probate court7, pursue civil remedies to recover what’s already been stolen.

What happened to Mickey?

On March 2, 2011, Mickey testified before a special committee of Congress on the abuse he suffered, and implored other victims to stand up and tell everyone who will listen.  As a result of Mickey’s plea, Senator Herb Kohl, chairman of the aging committee, was reintroducing the “Elder Abuse Victims Act”. The bill would establish an Office of Elder Justice within the Department of Justice and strengthen enforcement in cases of abuse.

Mickey overcame his fear and the (unwarranted) shame of keeping silent for so long.  With the help of a conservator and the court, he’s protecting what monies and assets remain.  With his civil lawsuit, he’s pursuing recovery of what was allegedly stolen.  By exposing his story, he’s providing awareness, strength and inspiration to untold numbers of other elderly victims.  In his golden years, Mickey’s fighting the good fight.

1        ABC World News article (February 17, 2011).

2.       CBS Los Angeles Times article (September 15, 2011).

3        Christine Kennard, “Tangles, Plaques and Genes” from  About.com.Alzheimer’s/Dementia (September 18, 2006): Dementia is most often associated with the development of senile plaques.  The brains of people with           Alzheimer’s tend to show that nerve cells have become bunched together and knotted, a feature known simply as tangles. Around these cells tend to be clustered a kind of cellular debris known as plaques. Plaques are made up of  dead cells and deposits of protein. Dementia is a progressive disease, meaning that it gets worse over time.

4         California Civil Code §1575: Undue influence consists:

           1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

           2. In taking an unfair advantage of another’s weakness of mind; or,

           3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

5         Arizona Elder Abuse Coalition and MO$AFE, Missourians Stopping Adult Financial Exploitation.

6         Welfare & Institution Code §§15600-15766.

7         Welfare & Institutions Code §15657.3.

We’re here to help.  If you need assistance in resolving an elder or senior law matter, then pick-up the phone and give us a call.  The initial telephone consultation is free.

Copyright.  2007-2013.  Law Office of George F. Dickerman.  All rights reserved.

 

 

 

                   

 

 

 

 

 

Elder-Law-Advocate