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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.


 Part One: The Crime 

Part Two: Predators

Part Three: The Perfect Victims

Part Four: Bad Actors

Part Five: Resources

*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.