Category: Elder Abuse

Young woman talking aggressively to a scared elder woman.

Fighting Families

Posted by Susan B. Geffen on

Trust litigation is very taxing. I just had a mediation, and the Judge described the probate courts as “family law on steroids.” There is no typical case, but they all seem eerily similar. Most all involve older adults, usually parents, who have been taken to a new attorney by an adult child who unduly influences said parent into disinheriting the other children. Worse, often that parent is isolated from the other children and is turned against them because the “bad” kid has their ear 24/7. While it is bad enough that the heirs have had their bequests stripped from them, what is truly tragic is that the older adult has had their dignity smashed; a whole life of love and kisses in bits and pieces like a fragile mirror after a tumultuous earthquake.

To do this takes a lot of moving pieces.

Here’s the recipe:

Step 1. Make sure that your parents are cognitively challenged, and vulnerable.
Step 2. Find a willing attorney (that is not me)
Step 3. Drag your parent to the “willing” attorney, and on the way fill her head with horror stories and make her fearful of her other children. I have a good one. Tell her that your siblings want to lock her up in a facility and steal her money. That should do the trick. Once the deed is done, move in with her and isolate the rest of her kids from her. Tada! Just like magic.

So what can you do about it? Unless you’ve lucked into a good Probate Judge, sometimes nothing. Can you imagine going to court (with a conservatorship or elder abuse petition) and having the Judge either kick the can down the road while your time with mom fades away or defer it to a court appointed counsel who either does not understand the subtleties of undue influence or for some inexplicable reason sides with the what seems to be the obvious ne’er -do-well? In the latter circumstance, it seems that the “bad” kid must be really good at bamboozling not just the demented.

Old people can get brainwashed easily. Period.

If you get a thoughtful Judge, you can petition the court for an emergency conservatorship and get a visitation order. In one case recently that is exactly what happened. The trouble is that mom may not abide by the order having been told repeatedly that you are evil. In another case, the isolation was so bad, that my client got custody of her father and was made his temporary conservator.

What if you know that mom is incapacitated, and you know that the changes to her trust are the result not only of undue influence but that she did not have the capacity to make the purported changes? Can you fix this during her lifetime?

The answer is yes and more importantly if you wait until after she dies, you may have waived your right to contest. During mom’s life you can either petition the court for a conservatorship and seek to reform the trust though a substituted judgment proceeding within the conservatorship proceedings, or you can file a petition to invalidate the trust if there is no conservatorship proceeding.

If you do neither you can lose your standing to challenge the trust after mom dies under the doctrine of latches according to Drake v. Pinkham 217 Cal.App.4th 400 (Cal. App. 2013).

In Drake v. Pinkham the Third District Court of Appeal held that that a beneficiary may have had standing if, as the beneficiary alleged, the settlor was incompetent at the time she brought her trust contest. The court suggests that an aggrieved beneficiary may be able to bring a pre-death trust contest if the beneficiary can ultimately prove the settlor’s incompetence.

More importantly the court found that by the daughter failing to take this action during mom’s lifetime, she could not pursue a trust contest post death because she was barred by the doctrine of latches (an equitable doctrine that is a sorry Charlie you waited too long).

The key lesson of Drake is that beneficiaries cannot simply wait until Mom is deceased to contest trust amendments that disfavor them if they know (or should know) of the amendments and also know (or should know) of mom’s incapacity.

Lady Justice

Conservatorships are a last, but important 0ption

Posted by Joel on
,  Conservatorships

When an elderly person suffers from memory loss or becomes too ill or weak to handle their own affairs, a conservatorship is a very important option.

In the U.S., many elderly people are being abused by predators who prey on their weakened disposition. Typically they are after money. It can be relatives, “friends,” or “well-meaning” neighbors.

How do you spot these culprits. It starts with checking in on our elderly on a regular basis to see how they are doing. How do they look? Are they in clean clothes? Is their mail piling up? Are there any people you haven’t ever seen before showing up and appear to be taking over. Who answers the door or the phone when you call?

If you suspect something is wrong, you can call Adult Protective Services to have them come out and check on them.

But foul play isn’t the only reason a conservatorship may be needed. It is a way to keep someone physically and financially safe. This requires an order by the court so it is not a simple process, but it is very common.

As an elder law attorney in the South Bay with offices throughout Los Angeles County, I have handled many conservatorships for adult children of elderly parents and their relatives. For more information or if you have any questions, you can call my office at (310) 292-2952 or you can visit my website.

How To Prevent Elder Abuse

New Federal Law Puts Focus on Preventing Elder Abuse

Posted by Joel on

A new federal law is designed to address the growing problem of elder abuse. The law supports efforts to better understand, prevent, and combat both financial and physical elder abuse.

The prevalence of elder abuse is hard to calculate because it is underreported, but according to the National Council on Aging, approximately 1 in 10 Americans age 60 or older have experienced some form of elder abuse. In 2011, a MetLife study estimated that older Americans are losing $2.9 billion annually to elder financial abuse.

The bipartisan Elder Abuse Prevention and Prosecution Act of 2017 authorizes the Department of Justice (DOJ) to take steps to combat elder abuse. Under the new law, the federal government must do the following:

  • Create an elder justice coordinator position in federal judicial districts, at the DOJ, and at the Federal Trade Commission
  • Implement comprehensive training on elder abuse for Federal Bureau of Investigation agents
  • Operate a resource group to assist prosecutors in pursuing elder abuse cases

The law requires the DOJ to collect data on elder abuse and investigations as well as provide training and support to states to fight elder abuse. The law specifically targets email fraud by expanding the definition of telemarketing fraud to include email fraud. Prohibited actions include email solicitations for investment for financial profit, participation in a business opportunity, or commitment to a loan.

The law also addresses flaws in the guardianship system that have led to elder abuse. The law enables the government to provide demonstration grants to states’ highest courts to assess adult guardianship and conservatorship proceedings and implement changes.

“Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are,” said Senator Chuck Grassley (R-Iowa), a co-sponsor of the legislation, adding that the legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be top priority for law enforcement.”

For more information about the law, click here and here.

Elder Law Attorney in Los Angeles

New Yorker Article Highlights Abuses in the Guardianship System

Posted by Joel on

Serious problems with the public guardianship system in the United States can lead to elder abuse, according to an in-depth article in The New Yorker titled “How the Elderly Lose their Rights.” Court-appointed guardians can take control of an elderly person’s finances and life and become wealthy while doing so. One expert interviewed describes the guardianship system as “a morass, a total mess.”

If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”). A public guardian is appointed by the court to serve wards when no family member or private guardian is available.

The New Yorker article, written by staff writer Rachel Aviv, focuses on a Nevada couple who came under the control of public guardian April Parks. As guardian for hundreds of wards, Ms. Parks, took over their lives, sold their belongings, and charged their estates hundreds of dollars an hour while doing so. Over her 12 years as a public guardian, Ms. Parks built relationships with hospitals and medical providers to refer patients to her and found doctors who were willing to declare patients incompetent. Families often found out too late that their loved one was under guardianship and beyond their legal control.

Ms. Parks was just one part of a system that fails to protect vulnerable elderly individuals the way it is meant to, Aviv suggests. The couple in the article lost their home and freedom and were moved around to various assisted living facilities and medicated. After the couple’s daughter notified the media, Ms. Parks was finally removed from the case. She was eventually investigated and indicted for perjury and theft related to her business dealings. Unfortunately, according to the article, other public guardians who are abusing the system are still working.

There are a growing number of stories of seniors who become confused and overwhelmed after losing control of their lives to a guardian they don’t know. In response to such abuses, some states have begun making reforms. In March 2016, Florida’s governor signed a law creating an Office of Public and Professional Guardians that is required to create standard practices and rules for public guardians. Nevada has also enacted a number of reforms, including requiring that individuals subject to guardianship be represented by an attorney, that are set to go into effect in 2018. And in a rare display of bipartisanship, Congress recently passed and sent to the President a bill that empowers federal officials to investigate and prosecute unscrupulous guardians and conservators appointed by state courts.

While there isn’t a foolproof way to prevent someone from preying on you or a loved one, there may be steps you can take to reduce the chances. A power of attorney allows a person you appoint (and trust) to act in place of you for financial purposes when and if you ever become incapacitated. Having a power of attorney in place may lessen the need for a guardian.

To find out what you can do to protect yourself and your loved ones, consult with your attorney.

To read the New Yorker article, click here.

Elder Abuse… is in the house

Posted by Joel on

This is a story of an elderly woman. She is a retired teacher. She kind of lives alone if it were not for the unemployed 60 year old man, an acquaintance from church and a woman acquaintance from church, also in her sixties, who moved in.

Her thirty something unemployed grandson took it upon himself to move in too under the auspices of being her caregiver. He charged her $500 a week.  I think that covers the interlopers.

Now when the non-rent paying acquaintance/interloper from church wanted to oust the grandson, also a non- paying interloper because they feared he was financially abusing this nice old lady, they called in the big guns AKA Susan B. Geffen. If it were not for the woman herself pleading for my help on the phone I would have simply suggested for them to call the police.

I left my family at our weekly farmer’s market visit and rushed to her aid. When I arrived the elderly woman was shaking and so frightened that I had one of the interlopers call the police. Her grandson was on the way and I had no idea what I was walking into. It seemed as if everyone was interested in being protective of all, but her.These interlopers were stakeholders.

If they had their way I would have been their pawn; the one that collaborated and conspired to isolate this vulnerable old woman. Instead, she hired me to protect her. She now has a fiduciary handling her financial affairs and a geriatric care manager, me, coordinating her care.

I know you are wondering, “doesn’t she have any family?”

She had four daughters, three of whom are no longer alive. Her other daughter, the grandson/interloper’s mother, packed up and moved to Texas two years ago, leaving her mother, my client an 86 year old woman to fend for herself. Before she left for Texas, she had been living with my client in my client’s home, rent-free, with her son the interloper. My client had previously told the grandson interloper that she did not want him living there.

As soon as this daughter caught wind of the fact that the jig was up and that the fox, her interloper, unemployed, homeless, new to the care giving profession son was no longer guarding the henhouse, she flew to California to “care” for her mother. She then proceeded to try and round up a lynch mob to accuse me of undue influence because a person, other than one of her family members, is handling her mother’s finances and healthcare.

When she arrived at my client’s home, my client immediately asked her to leave and gave her a check for her airfare on the spot.  To confirm that her mother was not being unduly influenced, the daughter had her best friend come over to speak with my client who reiterated her desire for her daughter to return to from whence she came.

Could someone please call my client’s daughter and ask her if SHE knows what medications her mother is taking and when her next doctor visit is and whether she can manage her bills or whether there is a strange man living with her mother? If you did, she would not be able to answer any of these questions. She would just want to know if the will had been changed.

That has been the predominant question either directly or in a roundabout fashion from every family member who has crawled out of the woodwork to harass me.

Not one person is interested to learn that their mother/grandmother was precariously close to a critical hospital stay before I arrived. Now she is getting up and off the couch without assistance. She is smiling and laughing once again. Her medications are being managed, she has professional home caregivers in her home and most, if not all of the riffraff are gone.

My client has given me the authority to record her and show a video of her for educational purposes. I hope to add that video link to my next newsletter so look for it. I want everyone to see what it is like for an older adult to be scared and feel vulnerable and then witness the transformation that can occur by feeling hopeful with the aid and presence of good professionals.

Elder Abuse Statistics

-Seventy percent of the nation’s net worth is owned by those aged 50 or older. This makes seniors a rich target.

-Forty percent of all reported elder abuse cases involve financial exploitation.

-Estimates indicate that only 1 in 25 cases of elder financial abuse is reported.

-There may be as many as 5 million elders victimized by financial exploitation each year.

Sources: National Fraud Information Center, National White

Collar Crime Center, U.S. Department of Justice/Bureau of

Justice Statistics, and the National Center on Elder Abuse, Senate Special Committee on Aging.