[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.
###
Part Three: The Perfect Victims
*All names have been changed upon the request of the families.
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.
