First is that financial elder abuse laws are not designed to protect seniors who have simply made a poor decision. According to Philip Brown, founder and partner at Egerman & Brown, LLP, there is a difference between a senior being financially abused and simply making a bad decision.
"A poor or unwise decision is not elder abuse unless it was prompted by someone taking advantage of an elderly person's particular need," Brown says. "For example, an elderly person who is convinced to invest in a risky venture, such as a wildcat oil drilling venture, is not elder abuse if there really is a drilling venture." So, the investment may be unwise—especially if the money for the investment is money that was needed for the senior's care—but that does not mean that the elder is the victim of financial elder abuse. What might make it financial elder abuse is if the senior was told she would not receive proper care unless she invested in the drilling venture.
"Financial elder abuse law is not designed to undo unwise investments—it is designed to make it easier to go after people who cheat and steal from elderly people, or who use undue influence to get the senior do something he or she would not do without that undue influence," Brown says. "Undue influence is the use of a confidential relationship or a real or apparent authority for the purpose of gaining unfair advantage."
Furthermore, it is not financial elder abuse simply because the senior changes his or her mind about a decision. Again, there has to be some form of improper influence or cheating on the part of the person who convinces the senior to do something that is not in his best interest.
It is also important to remember that just because someone else does not like the senior's financial decisions does not mean that the senior has been victimized. For example, in some cases one child might be upset about money or property given to another child—but that alone is not proof that elder abuse has occurred.
"Elderly people, if they are being cared for by one child, tend to want to reward that child for the care," Brown says. "There is nothing wrong with that unless it comes with the demand, 'I won't care for you as much if you do not give something to me.' It is proper to want to give property to one child who cared for the senior. You have to find undue influence—it is not just elder abuse because of favoritism.
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When financial elder abuse does occur—where the senior has been prevailed upon to give up money or property that she would not have given up in response to improper pressure or undue influence—the law can step in and help the senior to recover his or her losses. The law also provides for attorney's fees in cases of financial elder abuse, so that the senior does not lose money fighting a court battle. However, before a lawsuit can begin, it is important to contact a lawyer to discuss the senior's legal options.