This week's question comes from Candice T. from the Avenues, who asks:
Q: “I think my brother is taking advantage of my mother. She is old and he is signing checks from her account. When I went over the other day, she had bills saying past due on the kitchen table yet my brother bought a new flat-screen TV and a motorcycle. Does the law protect mom?”
A: Candice, this sounds like it may be a case of elder financial abuse. Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following:
Takes or uses undue influence to take, secret, appropriate, obtain, or retain real (land) or personal (money, stocks, jewels, cars, etc.) property of an elder or dependent adult for a wrongful use or with intent to defraud, or both, property and the person or entity knew, or should have known, that their conduct is likely to be harmful to the elder or dependent adult.
This unlawful conduct often occurs when an elder or dependent adult is either unaware of others spending their money, defrauded, or being deprived of a property right, including by means of an agreement, donation, or bequest in a will, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation or dependency.
2) The influencer's apparent authority including but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
3) The actions or tactics used by the influencer including, but not limited to, all of the following: controlling necessaries of life, medication, the victim's interactions with others, or access to information, or sleep, use of affection, intimidation or coercion.
4) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
5) The fairness of the result may including, but not limited to, the economic consequences to the victim, any divergence from the victim's prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
Examples of financial abuse include, but are not limited to, making withdrawals from bank accounts, taking or selling art or jewelry, transferring all or part of ownership in real estate, use of credit cards, signing of checks or other documents when the elder cannot write or understand what they are signing, cashing of Social Security checks, change in purchasing patterns, unpaid bills when someone else has been designated to pay the bills, reverse mortgaging property, borrowing against life insurance, changing life insurance beneficiaries, causing a change to a will or trust, or selling insurance or annuities to the elderly who will derive no benefit therefrom.
Given the interest generated in this topic and these articles, I have created a comprehensive guide to elder and dependent abuse that you can get by emailing your address to firstname.lastname@example.org. If you don't have email, stop by the office at 1438 Market St. and we will have some copies at the front desk.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to email@example.com.