Out of the Fog: June 2021

Elder abuse is a crime that can be physical, medical, financial, or emotional/behavioral in nature. Neglect and abandonment of an elder can be crimes as well. If you or a loved one is the subject of suspected abuse, call your local adult protective services to speak confidentially with a knowledgeable expert.

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Monday, June 14, 2021

4. Fear, Shame, and Love: The Hidden Epidemic of Elder Financial Exploitation Part Four: Bad Actors

[This is the fourth of a series of articles leading up to World Elder Abuse Awareness Day, June 15, 2021.]

Part Four: Bad Actors

Helen’s* predator, Jane*, took advantage of her Alzheimer’s disease. Elizabeth’s* son, Craig*, took advantage of his relationship with her and the family’s station in their community. Both women’s families ultimately looked for help from the courts.

As many families discover, even the best intentions can pave the road to Hell.

Best Practices for Protection

Best practices for protecting yourself and your loved ones from being financially manipulated is to have solid estate and financial plans that include wills, trusts, Powers of Attorney, healthcare proxies, and more. Using a reputable law firm willing to work with your chosen tax/financial advisor to create a comprehensive and seamless plan will mitigate confusion and unnecessary additional costs upon the final resolution of your estate. A letter written by you explaining your understanding and intent is also valuable, as is making sure a person who has no financial or personal interest in the resolution of your affairs knows your desires.

Helen had all of the right documents in place. She and her late husband had put together a comprehensive plan years before his death. They made two critical miscalculations: They failed to predict Helen’s slow cognitive decline. She was still able to execute legal and financial documents well before she was declared incompetent to do so. Also, she amended documents using a new law firm. When Jane had Helen draw up new documents using a new attorney, Helen’s decades-long relationship with her trusted family attorney was rendered moot.

Shortly after new estate and financial documents were created, Helen’s much-loved summer lake house was sold. Her family protested the decision, but Helen was firm: “My house, my decision,” she claimed. “Besides, I need the money.” Her declaration ignited her family to investigate, leading to her diagnosis and the appointment of a guardian over her affairs.

Elizabeth, too, had all of the right plans and documents in place. Her youngest child of three, Mary*, had the education, experience, and temperament to handle Elizabeth’s complex estate. Mary became Elizabeth’s named estate executor, trustee, financial and healthcare Power of Attorney–the very powers that are catnip to predators. Mary took her responsibilities seriously and forged open and transparent relationships with her mother’s legal, financial, tax, and healthcare professionals. Neither Mary nor Elizabeth ever dreamed that Elizabeth would be the subject of a guardianship petition.

Guardianship as a Tool

Having a guardian help with a loved one’s affairs is a godsend for many families. Any person interested in an adult’s welfare can file a petition. State laws provide for another person or professional to assume decision-making duties when individuals are no longer capable of making health, living, personal, or financial decisions for themselves. The term “guardian” is often interchanged with “conservator” when those duties are restricted to property or financial decisions, famously shown with Brittany Spears’ conservatorship. A person may have lost the ability (known as “capacity”) to make decisions on one or any combination of each because of a disease, injury, or infirmity due to age. Once in place, the guardian replaces the ward’s (also called the “incapacitated person”) legal authority to make decisions for him- or herself.

Guardianships can be invaluable tools for families struggling with a loved one who cannot care for themselves. Courts look to granting the least restrictive powers by assessing the totality of the alleged incapacitated person’s legal, medical, family support, and financial situation. They may appoint a guardian over all or part of the ward’s affairs, supplanting the ward’s past and future decision-making with those of the guardian. Courts provide oversight to ensure that the scope of care meets the ward’s needs without exceeding set limits. Guardianship fees are paid out of the ward’s assets.

The Netflix movie, I Care A Lot sensationalized the total guardianship of an elder.

Like any tool, guardianships can cause irreparable harm if wielded by a bad actor.

Good Tools and Bad Actors

Oversight and transparency are key drivers to having a good guardianship experience. If that process fails, guardianship can become part of the problem. Once Helen was determined no longer to have the legal capacity to make her own decisions, the court-appointed a professional guardian to manage all of her affairs. The guardian had total control over Helen, including where she lived and all of her financial and legal matters.

Sadly, for Helen’s family, the professionals and the lawyers charged with overseeing her guardianship were bad actors. Although the lake house could not be “unsold,” the family sought to unravel investment, will, and trust changes that benefitted Jane. In a twist made for the movies, Jane’s newly deepened pockets paid for the roadblocks that stopped the family from reclaiming much of what was lost. Only after the family sued the guardian and the lawyers involved were they able to find and reclaim a fraction of Helen’s wealth.

Craig was enraged that Mary questioned his unpaid six-figure loans from Elizabeth and property transfers. Elizabeth cowered from his rages and defaulted to giving Craig anything he wanted just to stop his tirades. Mary stopped Elizabeth from doing more, citing long-standing estate and financial plans made decades before and reviewed regularly.

Craig filed a guardianship petition against Elizabeth, claiming that she was incapable of caring for herself. He wanted full control over all of her decisions. He also claimed that Mary used her designated powers to block Elizabeth from her assets. He claimed that Mary violated her fiduciary duties and should be replaced. By him.

Fortunately, for Elizabeth, the attorneys and court involved in managing her petition were Good Guys. The court appointed an impartial evaluator to interview all persons and to gather as much evidence as possible to either support or refute Craig’s claim that Elizabeth was incompetent. The evaluator scrutinized Mary’s actions, assessing if either Craig or a professional should replace her.

The court dismissed the petition, declaring Elizabeth of sound mind. They determined she had all of the appropriate documents, support, and people in place to manage her affairs effectively.

The Bad Actor in Elizabeth’s case was her son. He tried to wield a good tool, like guardianship, in order to gain access to legal and financial power over an elder. Like most victims, Elizabeth just wanted the abusive acts to stop and didn’t want her son to get into legal trouble. She ignored her counsel’s advice to prosecute and insisted, “He filed because he loves me.”

Elder financial exploitation is a mire of subtle harms where privacy is a predator’s shield and where patterns may speak more loudly than the victims themselves.

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*All names have been changed upon the request of the families.

3. Fear, Shame, and Love: The Hidden Epidemic of Elder Financial Exploitation Part Three: The Perfect Victims

[This is the third of a series of articles leading up to World Elder Abuse Awareness Day, June 15, 2021.]

Part Three: The Perfect Victims

Helen* and Elizabeth* were victims of the same crime. Helen because she had Alzheimer’s. Elizabeth because she loved too much. The insidious nature of elder financial exploitation fosters the creation of the perfect victim.

It’s Not Just the Wealthy Who Are Targets

One doesn’t need to be wealthy to be targeted. Seniors are often the one family member with a steady income from Social Security, savings, or a retirement plan. With 10,000 Baby Boomers reaching retirement age each day, and with less than an estimated 10 percent of financial exploitation cases being reported, many experts caution about a hidden epidemic of abuse that is reaching a tipping point as the financial impact of COVID comes into full view.

The crime of financial exploitation is the conversion of money, services, or property from an elder through coercion, deception, undue influence, or misrepresentation. For some, there may be co-concurrent physical abuse as evidenced by unexplained bruises or sores. Even missing aids like eyeglasses, walkers, or hearing aids may signal attempts at isolating or intimidating the victim to coerce a financial benefit. Yet, exploitation cases of the medically frail or of those living in an institutional setting were less prevalent than of elders who lived alone. Independent elders comprise over 66 percent of the reported cases.

Exploitation can happen where no relationship exists between the victim and the criminal such as with consumer fraud found in mail, phone, or Internet scams. However, the vast majority of exploitation occurs inside a relationship where there is an expectation of trust, such as with spouses, children, grandchildren, neighbors, and professionals. Visible signs may include stolen credit cards, missing checks, forged signatures, fraudulent or unauthorized transfers, and identity theft.

Weaponized Relationships

Invisible signs include behavior changes. Guarded or paranoid behavior, secrecy, lies, and letting things go that once caused concern are red flags that something is amiss. Depression, anxiety, withdrawal, apathy, or anger–common symptoms of abuse–may have a variety of causes, and few would expect a criminal act as a trigger. Abrupt changes in estate documents or financial security often go unnoticed even by the closest friends. The crime’s invisibility adds to its misunderstanding, including blaming the victim for their problems.

“Weaponized” relationships contribute to this crime being one of the most underreported as misdeeds look and feel like a “private matter.” Even a victim entangled in the web of an abusive relationship often cannot tell the difference between an act of freedom or an act of coercion. They just want the abuse to stop.

Both Helen and Elizabeth had something that Jane* and Craig* desperately wanted, needed, and felt entitled to. For Jane, it was money. For Craig, it was money, property, and something as hard to define as a family legacy.

In Helen’s case, it was her best friend who defrauded her of millions. In Elizabeth’s case, it was her son who bullied her into silence when loans went unpaid or questionable property transactions occurred. They became the perfect victims.

Eccentricity is a privilege of the old and making a questionable payment is not in and of itself evidence of exploitation, but intent and reasoning matter. The prosecution of the crime often hinges on the victim’s testimony. For the criminal, a perfect victim is someone who cannot or will not admit a crime has been committed. This can stem from a spectrum of reasons from fear of reprisal from the criminal, to embarrassment and shame.

Denial and Silence

Both Helen and Elizabeth denied they were victims. Neither woman would bear witness against the criminal despite an overwhelming amount of evidence. Both were easily intimidated into silence in large part because of the station that the criminals had in their lives. Feeling helpless and dependent upon the criminal, fear chilled any motivation to push back against actions they and others knew were wrong.

Silence enables and emboldens the predator, making the victim an unwitting accomplice to their own victimization. Helen and Elizabeth’s lives were inextricably woven into the lives of their abusers. Any action they took would have a ripple effect. The complicated web of co-dependency tightened, making this crime similar to domestic abuse.

Co-Dependent Victims

Before she was determined to be incompetent to sign documents, Helen trusted that Jane was helping organize her affairs. Jane provided the companionship Helen wanted. Investments and homes disappeared. When questioned, Helen lied to protect Jane, fearing she’d be left alone.

Helen’s family began the uncomfortable task of unveiling a once-trusted friend as a thief. They were shocked and saddened by Helen’s Alzheimer’s diagnosis, but were dumbfounded by what followed. They could not unravel the transactions that Jane illegally benefitted from. Jane fought back. Legal complexities spiraled. Helen was placed under guardianship. What had been hoped to be the end of Helen’s troubles, incredibly opened another chapter.

Elizabeth found herself in an abusive, co-dependent relationship with her son in part because of her need to be needed. Her youngest daughter, Mary*, worried about large checks and property transfers to Craig. Elizabeth insisted the multiple payments were “just this once” to “help Craig out of a tough spot.” When Mary observed that the payments and transfers were not what Elizabeth’s late husband and she had agreed to as part of their estate and financial plans, Craig became enraged at Mary’s “meddling” and Elizabeth tried to hide transactions to foster family peace.

Families, friends, and most professionals don't like to see a crime. Instead, they see siblings who don't get along, or parents who had "favorites."

Patterns Speak More Loudly than Victims

Blocked from unfettered access to Elizabeth’s money by Mary’s advocacy, Craig upped his game and instead focused his attention on ensuring that he would profit as much as possible when Elizabeth eventually passed away. He targeted Elizabeth’s wills and trusts that Mary had been appointed to.

For vastly different reasons than in Helen’s case, Craig filed to gain full guardianship over Elizabeth.

Patterns of transactions often speak more loudly than the victims themselves. In both Helen and Elizabeth’s cases, a multi-year pattern of financial transactions emerged. Their loved ones summoned help, feeling as if they were betraying family codes of loyalty.

The patterns of elder financial exploitation and abuse transcended the boundaries of an ailing or sound mind. The women’s legal, tax, and financial advisors clearly identified a predatory constellation of acts. Doubts of criminality vanished.

Like an abused spouse, Helen and Elizabeth claimed their financial black eyes were caused by their own trip down the stairs. They didn’t want their predators to “get into trouble.”

Jane and Craig had found the perfect victims.

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*All names have been changed upon the request of the families.

Sunday, June 13, 2021

2. Fear, Shame, and Love: The Hidden Epidemic of Elder Financial Exploitation Part Two: Predators

[This is the second of a series of articles leading up to World Elder Abuse Awareness Day, June 15, 2021]

Part Two: Predators

Helen’s* family was stunned by her Alzheimer’s diagnosis. They were equally stunned when that diagnosis didn’t protect her or her family from the ravages of elder financial exploitation.

A family vacation home was sold and the proceeds disappeared. Banking and investment accounts vanished or the balances diminished in an unexplained plummet. Like many elder victims, Helen became increasingly defensive, evasive, and confused. But it’s not only the ailing who can be exploited. The insidious truth is that healthy elders (defined as anyone over 60 years of age) can become victims, too.

Clever Scams

Financial scams are limited only by the predator’s imagination and no prior relationship between the victim and predator is needed. Scams can come in the form of phone calls by persons alleging to be a family member (most often a grandchild) in some kind of urgent trouble or a customer service representative offering a ‘refund’ that cleverly morphs into the victim sending money (frequently in the form of gift cards) to cover an ‘error.’ The Internet can be a minefield of scams only a click away. Mail-based fraud may take the form of charity or political solicitations. Unscrupulous home maintenance professionals may also take advantage of elders, where sneaky perpetrators pad invoices or submit false bills altogether. The American Association of Retired Persons (AARP) has a trove of articles to help identify and protect yourself or loved ones from phone-, Internet-, and mail-based scams at aarp.org.

We can begin to protect our elders from nameless or faceless predators with advice like, “Don’t give out personal or financial information over the phone or unfamiliar websites,” or, “Don’t respond to direct mail solicitations.” Calling your local resource center or council on aging for referrals to trusted professionals or home repair businesses is also a line of protection. Yet, elder financial exploitation is one of the most under-reported crimes. Why? Because it’s a crime of access and opportunity most often enacted by a family member or a close family friend.

The Trusted Predator

So, who are the people who exploit others?

They are the sons, daughters, spouses, friends, grandchildren, landlords, or professionals who have sat with you on a sunny afternoon. They have access to the elder, most often by living with them or in close proximity to them. Unlike the fraud schemes mentioned above, they have a close relationship with the elder, and it’s that relationship that becomes weaponized.

Helen’s case was a perfect storm of bad actors. What began as self-serving acts of one individual tragically became a case of predatory guardianship. As fictionalized in the Netflix movie, I Care A Lot, professionals charged with protecting vulnerable adults are well-positioned to exploit their charges. Most conservators or guardians have sufficient state-mandated oversight to eliminate abuses, but even well-intentioned tools can add to problems. (More about guardianships in a later column.)

Widowed years before, Helen lived away from family in a retirement community. Isolation from supportive family and friends is a key contributor to abuse. For Helen’s family, what had seemed like an ideal situation of independent living added to her vulnerability. Removed from the questioning eyes of family, Jane* began to exert influence. Small transgressions went unaddressed. Jane became emboldened and began to “wean” Helen from her other relationships, further embedding herself into Helen’s affairs. Jane became an indispensable friend, displaying hurt if not included in Helen’s plans. Soon, the family realized Helen had little privacy from Jane, and Helen became evasive when questioned about her friend.

Isolation can be physical, but it can be psychological as well.

Elizabeth’s* youngest daughter, Mary*, didn’t understand the increasingly large checks written to her brother, Craig*. When questioned, Elizabeth withdrew, mentioning how angry Craig had become at Mary’s inquiries. Elizabeth struggled to “keep the peace,” and began to avoid Mary in fear of making Craig mad.

Jane and Craig used their access to begin separating the vulnerable elder from people or institutions instrumental in the healthy support of that elder. Once isolated, the opportunities for their actions to go unquestioned increased. Perpetrators of financial exploitation are most often a close family member like a husband or grandchild. They leverage the loss or worsening of their relationship as a weapon–“do this or else”–or as a gaslighting wedge, “Don’t you remember? You owed me money for gas and groceries.” Or worse. “Oh, these documents? Trust me, it’s nothing. Sign here.” What the victim’s family sadly finds out too late, is that one signature can make a lifetime of savings disappear.

A ‘Justifiable’ Crime

People who exploit others often do not see their actions as wrong. Jane began her theft feeling Helen had “enough” money and, with her failing health, would “never miss it.” Craig felt entitled to Elizabeth’s money through a misguided combination of “oldest son” and a sense of entitlement. Observed from the outside, exploitative relationships don’t have the typical red flags one would expect in an abusive relationship. Perpetrators of elder financial abuse and exploitation enjoy the cloak of “private family affair” that makes questioning details by a concerned person uncomfortable. An addicted child or cash-poor son may be sheltered by a parent reluctant to disclose painful family secrets.

Helen was surely vulnerable and the family was justifiably upset at the changes of her financial health, and, as a result, their inheritances. Yet, Jane felt justified and protected. Mary felt anger toward her mother and brother for continuing a pattern all knew was wrong.

Once diagnosed, Helen’s family reached out to others for help, only to uncover a shocking underbelly of corruption. Mary found stopping her mother’s financial drain had a surprising twist.

How and why?

The next articles will provide some answers.

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*All names have been changed upon the request of the families.

Saturday, June 12, 2021

1. Fear, Shame, and Love: The Hidden Epidemic of Elder Financial Exploitation Part One: The Crime

[This is the first of a series of articles leading up to World Elder Abuse Awareness Day, June 15, 2021.]

Part One: The Crime

Helen Younger’s* last words were, “You lied to me.”

What was left of her family had gathered at her bedside as the final hunger of Alzheimer’s was sated. Their faces had become strangers to her, and they clung to the surprise moments when her fog would lift and she would call a family member by name or comment on a recent accomplishment.

Their huddle was both to pay respects and homage to the family matriarch, but it was also protective. In her fading years, Helen had signed away most of her assets to Jane* and her son, Jack*. Helen’s life may have been coming to an end, but the ugly process of proving elder financial abuse and exploitation had only just begun.

The family stiffened when Jane walked into the room. The lines of conflict had already been drawn and Jane and Jack’s appearance had been negotiated through lawyers and guardians. Jane was a southern-based “Snow Bird” acquaintance of Helen and her husband for many years. New Hampshire Yankees at heart, the Youngers had accumulated millions with frugal living, smart real estate choices, and shrewd investing. After Helen had been widowed eight years earlier, Jane became Helen’s best friend. The family wanted to block Jane’s request for a final goodbye, but the court ruled no harm could come from a long-time friend bidding her final respects.

Jane entered the room with exclamations of love and missives for Helen. “We miss you and love you, Helen dear!”

“You lied to me.” Helen’s last words were directed to her one-time BFF.

Early Warnings

Years before, the first trickle of money in Jane’s direction looked like the generosity of a well-off friend to a modest-means buddy. Shopping trips started as buying a blouse or trinket for Jane, but then slowly morphed to full-blown wardrobes and more for Jane, her son, and another “friend.” Helen’s wardrobe, however, remained stuck in 1980’s neons with padded shoulders.

Those warning signs could be explained away. “Oh, it’s just a little shopping with the girls,” Helen could say, but the family grew worried at the increasing credit card charges. They faced a common junction: Their beloved elder had begun to make questionable decisions. Eccentricity and quirks are the privilege of old age. Helen brushed aside voiced concerns. A person has the right to do with their assets as they damned well pleased. Just because a son or daughter objects, or the money-flow is outside a “norm,” doesn’t mean the expenditures are illegal or wrong. “My money. My choice,” is a common refrain. Helen’s children and grandchildren hit an all-too-common wall.

Freedom to choose worries countless families who face the same dilemma. Long before it was clear that Helen was losing her abilities to discern “fraud” from “freedom,” Jane was embedding herself deeper into Helen’s private affairs. Helen had been living the vibrant life of a robust retiree at a posh assisted living community in Florida. Family noted nothing unusual during their visits, but would admit that visits and phone calls are different than seeing someone’s day-to-day life. Troublesome patterns could go unnoticed. Close friendships often provide an early warning to family members for memory issues that are more than a senior moment. Another set of eyes from a helpful friend can be a blessing and provide crucial insights into behaviors and health. Personal boundaries vary, so one friend’s “help” can be another friend’s “intrusion.” Trust becomes a bankable asset. Trusting Jane, Helen divulged financial details.

More warnings happened. Family members compared notes and realized the mysterious Jane was omnipresent during their visits, giving them little privacy. In rare private moments, Helen became nervous and evasive when questioned about Jane, the increasing credit card bills, and the missing bank statements. A beloved family lake home was suddenly sold and the proceeds were unaccounted for. Names changed on investment accounts, or those accounts disappeared entirely. Tensions and suspicions escalated rapidly. Helen became increasingly deceptive. Jane insisted Helen’s decisions were unimpeachable.

The Subtle Crime

One doesn’t need to have diminished capacity to fall victim to a predator. The slide into Alzheimer’s can explain some of Helen’s behaviors, but victims of financial exploitation display similar evasiveness. Anxiety triggered by probing questions is not limited to individuals with ailing brains. In fact, those elders who have all their marbles can be even more deceptive and evasive of probing questions. Quite simply, they know something is wrong but feel powerless to stop it. They evade and hide the crime because they are embarrassed.

The U.S. Department of Justice defines exploitation as “. . . an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.” (emphasis added) Broadly defined, “services” includes, but is not limited to, paying the influencer’s bills, co-signing loans, providing food, shelter, or transportation, providing employment or references, and signing documents without proper counsel such as deeds, leases, or Powers of Attorney. Elder exploitation is not a crime solely of the wealthy.

Identifying a “vulnerable adult” is not the hard part. Vulnerability can be developmental, medical, or behavior-based. More importantly, frailty and loneliness, both common issues among the elderly, are recognized contributors. What may surprise some is that most states define “elderly” as anyone over 60 years of age.

Exploitation of an otherwise healthy elder who has full capacity to make his or her own decisions is difficult to indentify, let alone prosecute. Embarrassment and the need to save face lead to defending the predator. Most victims just want the abuse to stop. They do not want the predator to ‘get into trouble.’ The result is the victim, as the key witness to the crime, will not testify against the predator. They become unwitting enablers of their own predicament.

Yet, Helen’s diagnosis identified her as a vulnerable adult, but it didn’t offer the family an easy path to resolution. Their story is a cautionary tale for all of our beloved elders regardless of their health.

Who are these predators? Who helps them? Are they “evil” people? What can we do to protect our loved ones?

The following articles will explore these questions and more. Not everything is as easy as we hope.

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