Beverly Hills, CASo, you think your mother (or father or grandparent or another elderly relative) is the victim of financial elder abuse. You have learned that this relative has turned over large chunks of cash and/or property to a trusted caregiver. You know that there are financial elder abuse laws designed to protect your loved one, but you have no evidence that your relative was in any way tricked into giving away that money or property. So, you decide to just let it be.
However, according to Philip Brown, founder and partner at Egerman & Brown, LLP, there is a different burden of proof in financial elder abuse cases when the accused was in a position of trust at the time the alleged abuse occurred, regardless of whether that person is a professional or a family member.
"The thing that ties together both professionals and family members is the trust that an elderly person puts into certain people," Brown says. "The elderly person trusts them and relies on them for good faith. When a person in a position of trust ends up with the elder's property, there is a presumption that it was obtained through undue influence.
"What happens, if there is a challenge to a fiduciary (and even a husband or wife can be in that category), the burden of proof in court shifts so that the fiduciary in whom the trust is placed has the burden of proving that it is fair [that he or she received the property]. The fiduciary has to prove that the property was not given as a result of undue influence.
"I am dealing with a case right now in which the elder has no children and is being cared for, or 'looked out for,' by a granddaughter. There are nieces and nephews of the elderly person, but the elderly couple deeded their house to the granddaughter, who then put a mortgage on the house, took out the money and got a house of her own. There is a legal presumption that she obtained the title to her grandparents' house as the result of undue influence because the grandparents were so dependent on the granddaughter. Unless she can come up with some pretty strong evidence, she will not be able to overcome the presumption.
"The burden shifts onto the person who received the property to prove that it was a fair transaction and that he or she was not taking advantage of the elderly person. In this case, the husband died, the wife is 87 years old, she is lucid and she did not want this to happen. She is now living with one niece and cannot go back to her home because the granddaughter moved all the furniture out. Other family members are also coming forward to say that she did not want this situation to occur."
It is important to remember that there is a difference in financial elder abuse law between placing your trust in someone and simply being taken advantage of. For example, when an elderly person is convinced to buy a 'lifetime' membership to a gym (when he or she clearly has no use for that membership), the elder has been taken advantage of but did not necessarily have trust or confidence in the person selling the membership. In order for the burden of proof to shift, the senior must have had trust and confidence in the financial abuser.
This can include family members, friends, caregivers and even professional relationships such as doctors or financial advisors. "A financial advisor could be a position of trust. For example, if you have a husband and wife, and the husband manages the finances for years with a stockbroker, but the husband dies, the wife is reliant on the stockbroker to find out what's what. If that is continued for any period of time, you could argue that the dependency provision applies. It also applies in positions where the people have a fiduciary duty to the senior—that duty being not to profit off the person they are caring for."
The bottom line is that, if you think a loved one has become the victim of financial elder abuse, it is worthwhile to have a lawyer look into it. Even if you believe the elder did intend to give away her property, the decision may have been the result of undue influence, and in those situations it is up to the accused to prove that he or she did not take advantage of the senior. It is not up to you to prove that an abuse has occurred.
Curious… Recently my grandfather passed away. It wasn't until my uncle the executor of the will and aunt decided to contest did I know that my grand father had added all of the grandchildren. They are claiming that two years before his death when he re-wrote the will he was not of sound mind. They feel all the monies should be split between the 4 living children of my pop minus the amount of the house left to his child who cared for him and lived with him, that child should get 2% and they split the other 98%. The paper mailed certified states that all 6 grandchildren listed should appear to the court date for the contesting of will. I feel that they are mocking his legacy and splitting the family due to selfishness. They claim he was not of sound mind although over the last 2 years each of them(his children) borrowed or took money. One daughter even wrote checks over the last several weeks while he was on hospice. I spoke with his MD to get a letter stating he was of sound mind for the last years of his life with the exception of his final 3 weeks due to high levels of pain killers while in hospital. My question is, will this contesting hold up in court? and should we seek council for the last two years of his life where his children took thousands of dollars? It sounds contradictory to me. How do you claim he was not of sound mind when he added his 6 grand children to his will, yet he was of sound mind after when each of them asked for money. Feed back is appreciated. All I know is he should have left the money to the dogs, they wouldn't tear apart over this like the selfish beings of my family.
Posted by Mary J Randall
I was on my mother's checking account with Regions Bank from Oct 2007 covered by a Durable Power of Attorney that mom signed in Oct 2006 until someone walked into a Regions branch in Mobile, AL while I was I a hospital in Hawaii after nearly dying from complications of a Gastric Bypass Sleeve operation in Dec 2009 while living overseas in the Marshall Islands and removed me from our bank account fraudulently, changed the address fraudulently which is mail fraud and stole over $42,000.00 from our bank account with Regions. Was I notified by phone, email or written documentation? No. Our mother died Mar 19,2011 and we were not told of her death for 4 days nor were we told that she had been admitted to a hospital 5 times in Mobile, AL with my sister, listed on the Hipaa Release to contact 5 times but was only called once, Sept 1, 2010 and told that our mother had been abandon and admitted to the psych ward for getting angry and hitting a resident. The assisted living facility that she lived at for 3 years said that they did not take her there but her supposedly friend who we found out later lied and said that she was my mother's daughter, caretaker and legal guardian but I have not been shown any pictorial or written documentation from anyone, not the bank, nor the 2 hospitals, a nursing facility or a hospice, especially a hospice who said that they did a background check on the patient and who charged Medicare $300 for less then one day and when I asked to speak to the nurse who handled my mother's case was told that she was no longer with them but the super visor read me her notes who told me that the last time they saw my mother alive was the day before her death, I asked why she was not taken to the hospital and I was told that they had spoken to the patient and her family. I told the supervisor that they had spoken to her kidnappers and not my mother's family. They said that they did a background check on the patient. I told her that it was a lie since I am very familiar with background checks since I have clearances my whole life. I told this supervisor that Alacare in Mobile, AL was more concerned about getting over $10,000 from Medicare. I want to know why Medicare does not sent to the person who is handling the financial and medical affairs of a patient the paperwork when they go into a hospital, nursing home or hospice. If they had instead of sending some paperwork 3 to 4 months after my mother's death, Mar 2011, my mother might still be alive. Forget about trying to get anyone in the police dept or the DA office or the FBI or the Alabama Attorney General's office to do anything. Apparently I can just someone's name on a legal document and have it notarized and start stealing that person's money and property and the DA thinks it is legit because of a former notary who he just spoke with on the phone, NO BACKGROUND CHECKS ON ANY OF THE THIEVES INVOLVED INCLUDING MY MOTHER WHO WORKED FOR THE US GOVERNMENT FOR 31 YEARS. Idiots in Mobile, AL
Posted by DE'LOIS SMITH DANIELS
I believe that my photo should be the poster for Financial(and other forms) of Elder Abuse. The last 10 years have rendered me and my family victims to Predatory Lenders, Identity Theft, Medicare Fraud, Captive and Forced Place Insurance, Personal Injuries, Civil Rights abuses, Unfair Credit Reporting Practices, Denial of our Rights to Rescission, Bankruptcy violations by Attorneys and Creditors etc. I have had my property vandalized many times over; utilities compromised and property ravaged by natural disasters (unable to be repaired because Insurance Company, banks and SPS (Select Portfolio Solutions) Mortgage Servicers held my insurance proceeds. I am now sitting in the cold, dark confines of my home facing another winter. The resources that are supposed to help us are seemingly helping those who have caused these predatory problems. We do not know Who To Trust. Our Faith is now and always has been our Safe Harbor. I make no allegations without supportive data and/or documentation. My health has been compromised and I prefer that all correspondence be by mail or email.
Posted by What if it on there sleep! Can I still file pne
I would like to see if I can file on my mother inlaw exboyfriend but he doing in his sleep
Posted by Michele Michael
My mother had passed away and not long ago, I discovered she had numerous loans; even a second loan from the lender, before paying off the first.
I believe there is reason to suspect fraud. And now, I am in the process of selling the house to pay off the loans.
Also, I believe there was a title change recently done.
Posted by Carol Fox
What a great article.
Trying to find out if my father was made to make a will in favour of my step sister, whilst having dementia.
She is sole beneficiary and executor of the will, despite there being four children.
Thanks to this article I now know where to go with this.
Posted by Rick
been ripping my elderly mom 4 years and liter
Posted by Lynda Kenny
My mother-in -law... was a victim of financial elderly abuse... "taken advantage of" she had a stroke at 78yrs approx. Someone in the family (ex-daughter-in law).. stole 1 credit card,... now using my now 86 yr old mother in law's identity, used her SS# to get 8 new credit cards, and numerous checks forged in my mother in law's name, over the span of 6 years, over $ 28,000 in my mother in law's name. District attorney's office did not prosecute, but I do not know why? This has been investigated over 10 months now.
LawyersandSettlements.com - A trusted, independent legal news provider bringing quality news and information on all legal cases and lawsuits filed in United States of America to its readers since 2002. Over 250,000 legal help requests including Financial Cases have been forwarded to lawyers all across to the country.