Elder Financial Abuse Litigation
Elder financial abuse and the need for elder law attorneys certainly exists in Riverside County, California, as well in most other counties where large populations of seniors reside.
Financial abuse is usually perpetrated by a bad son or daughter. Sometimes it’s a caregiver, sometimes it’s a new friend, but mostly the rip-off is done by a family member.These frauds are accomplished many different ways, but two elements are almost always present: Diminished mental capacity and isolation. Here’s a typical fact pattern:
Dad is deceased and mom lives alone. She no longer drives, is very lonely and has increasing symptoms of dementia (short and long term memory loss). Along comes her son, who hasn’t visited her in years — maybe a telephone call on Christmas Eve. Mom doesn’t know it, but he’s in real financial trouble and sees her as his new found cash cow. She’s got $80,000 in an annuity, $30,000 in the bank, a monthly social security check and a house worth $400,000 owned free and clear. Can you see him licking his chops? He won’t wait for his inheritance and, besides, he doesn’t want to have to share it with his siblings.
He now visits her everyday, sits with her and watches TV, helps her write letters, and listens as she tells stories of her past. More and more, he gains her confidence and trust, and day by day, he takes advantage of her weaker state of mind by filling her head with lies by telling her that everyone is against her and he is her only hope of protection. He’s learned what time of the day she is least capable of resisting such undue influence, and begins to plant the seed that she must transfer title to her house over to him.
“It’s all so complicated, mom … but you must trust me. I’m doing this to protect you from everyone”. Pretty soon, son brings a notary public to the house and mom signs a grant deed and a power of attorney over to her son. He now plays it cool for a while, and keeps her attention directed at anything and everything, except the two legal documents she has signed. With her dementia getting worse, she soon forgets.
The fox is now guarding the chicken coop. He’s now succeeded in taking advantage of her diminished mental capacity.
Now it’s time to go to the bank. “I don’t want to be greedy”, he thinks to himself. He brings the power of attorney and explains to the bank teller that his mother is not doing well and that he has reduced his work hours to part-time so he can spend more time taking care of mom. “She’s not paying her bills on time and I’ve found stacks of mail scattered around the house, unopened. She needs help with her finances and I’m the only child willing to step in and help”. The teller nods with empathy and agrees to put a copy of the power of attorney in mom’s file.
“Oh, by the way, I’ll need to withdraw $2,000 cash to get some things taken care of around the house”.
Isolation. Son needs to make sure mom doesn’t receive phone calls or have visitors who might learn that she transferred title of her house or that her bank account is being gradually depleted. He orders her not to answer the phone or open the door because of those pesky telemarketers and lottery scam artists. Months go by, and mom’s mental condition has deteriorated to the point that, through son’s pleading, her doctor has agreed that a nursing home placement is warranted. Son has now warehoused mom away and has full access to all of her monies and property.
At this point, it may become necessary to establish a conservatorship over mom, in order to have the court appoint someone (certainly not the son) to have authority to handle her finances and to make sound health care decisions on her behalf.
A good result in such a case would be that title to the property is returned to mom (via a trustee or conservator) and she returns to her home with in-home companionship care paid for by prudent management of her investments and income, and perhaps a small reverse mortgage.
Son, if found liable for an EADACPA violation, would be automatically disinherited.
Of course, there are many other examples of elder financial abuse, limited only by a bad guy’s (or gal’s) imagination.
Sound outlandish? This scenario is occurring everyday. Perhaps, the majority of such cases are never discovered, precisely because of the isolation. If no other family member or friend ever talks with mom, how will someone find out?
There is a good light at the end of this tunnel, IF the discovery of foul-play is made soon enough. There are many civil remedies, but in California, the Elder Abuse and Dependent Adult Civil Protection Act EADACPA provides about every remedy mom would need. However, quick action must be take to file such a lawsuit and then immediately record a lis pendens (notice of pending claim) on the real property. Under the above scenario, a copy of the lawsuit would be given to the bank and annuity company with instructions that, as mandated reporters, they are to contact Adult Protective Services and/or law enforcement and report the allegations that they have been informed of. If necessary, a court order can be obtained to terminate the power of attorney.
If you need assistance in resolving an elder abuse matter or other senior-law concern, then please give us a call. The initial telephone consultation is always free. We’re here to help.
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