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Multi-Disciplinary Team Of Professional Advisors

by with No Comment SNT

Assembling a multi-disciplinary team of allied professionals to advise an elder on a consistent periodic basis can contribute significantly to the prevention of elder financial abuse.  Key members of such a team could include the following.

Bigstock-success-and-winning-concept---53462125National Elder Law Foundation

http://www.nelf.org/

Geriatric care manager

National Association of Professional Geriatric Care Managers (NAPGCM)

http://www.caremanager.org/

Life care planner

American Association of Nurse Life Care Planners (AANLCP)

http://www.aanlcp.org/

Investment advisor

Investment Advisor Search

http://www.investmentadvisorsearch.com/

SEC’S Investment Adviser Public Disclosure website

http://www.adviserinfo.sec.gov/

Government benefits specialist

Benefits.gov

http://www.benefits.gov/

Home accessibility specialist

Accessibility Professionals Association (APA)

http://www.accessibilityprofessionals.org/

Accountant

American Institute of Certified Public Accountants (AICPA)

http://www.aicpa.org/

Household manager

International Concierge and Lifestyle Management Association (ICLMA)

http://iclma.org/

Bookkeeper or bill payer service

National Association of Certified Public Bookkeepers (NACPB)

http://www.nacpb.org/

American Association of Daily Money Managers

http://www.aadmm.com/

Elder mediator

Academy of Professional Family Mediators (APFM)

http://www.apfmnet.org/

While the compensation of all of these allied professionals can be costly, the end result of their team efforts could save the elder multiples of that cost if significant financial abuse and exploitation is forestalled.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Probate Court Remedies For Elder Financial Abuse

by with No Comment Legal TechnicalSNT

The Probate Court (or other state court with jurisdiction over alleged incapacitated adults) generally has the power to order numerous actions and remedies for elder financial abuse, each of which typically has its own procedural and evidentiary requirements.

Bigstock-Will-7981786The appointment of a limited or full conservator for the elder, with court-supervised responsibility for managing the elder’s assets, is typically ordered as a “defensive” protective measure.  During the pendency of a conservatorship proceeding, which can be a time-consuming proposition, consideration should be given to obtaining one or more of the following temporary remedies.

(1)  Temporary restraining order to prevent irreparable harm to the elder and her assets.

(2)  Preliminary injunction to preserve the elder’s assets while the conservatorship action is pending, coupled with court-ordered disbursements for the elder’s benefit during the pendency of the action.

(3)  Recordation of a lis pendens (Latin for “litigation pending”) in the deed records of any county in which the elder owns real property, putting third parties on notice of possible claims against, or title issues with respect to, the elder’s real estate assets.

Practitioners have reported a disturbing recent trend of filing “offensive” or “attack” conservatorship proceedings.  See Vivian L. Thoreen and Dana G. Fitzsimons, Jr., Elder Financial Abuse: Protecting the Aging Client from the Den of Thieves, 46th Annual Heckerling Institute on Estate Planning, Jan. 2012.  Cited examples include “[a] child, alienated from an elderly affluent parent and likely to be disinherited, seeks control of the parent’s assets to frustrate the parent’s estate plan by draining its assets.  Another example is the child, angry about being excluded from the parent’s lifetime giving, seeking to block generosity to other family members or charities, or to compel “gifts” to himself against the will of the parent.  In even more distasteful circumstances, the child may seek to restrict the parent’s lavish lifestyle or to limit expensive care so as to preserve a future inheritance.”  Id. 

Another disturbing offensive tactic that has emerged in recent years is that of “granny snatching” (i.e. removing an elder from her home state to another jurisdiction for the sole purpose of filing a guardianship or conservatorship proceeding there based on the elder’s physical presence in that jurisdiction).  This tactic has been curtailed in recent years as the vast majority of states have enacted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (“UAGPPJA”) in some form, promulgated in 2007.  

Notably absent from the list of 38 states and the District of Columbia that have enacted, or recently introduced legislation to enact (Massachusetts, Mississippi and New York), the UAGPPJA are several southern states, including Georgia, Florida, Louisiana, North Carolina and Texas.  (The other non-adopters are California, Kansas, Michigan, New Hampshire, and Wisconsin.)

If your at all interested in learing more about Lawyers With Purpose please join us in Chicago in June!  You can contact Molly Hall at 877-299-0326 x 201 or mhall@lawyerswithpurpose.com.  Register today – seats are filling fast!

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

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Civil Remedies For Elder Financial Abuse

by with One Comment SNT

Private civil actions for elder financial abuse under state law could include a complaint for restitution, compensatory damages, and punitive damages under one or more of the following.  The burden of proof for civil claims is usually "preponderance of the evidence."

  1. Specific statutory causes of action for elder financial abuse or exploitation.
  2. Fraud or constructive fraud on the elder.
  3. Breach of fiduciary duty, or aiding and abetting a breach of fiduciary duty, to the elder.
  4. Negligence.
  5. Rescission of transactions that damaged the elder.
  6. Conversion of assets stolen from the elder.
  7. Actions for an equitable accounting of the actions of a fiduciary charged with managing the property of the elder, whether as a Trustee or an agent (e.g. under a Power of Attorney).  Section 116 of the Uniform Power of Attorney Act (“UPOAA”) allows for certain persons to petition a court only “to construe” a Power of Attorney or “to review the agent’s conduct” thereunder, and to grant appropriate relief, but only if the Principal lacks the capacity to revoke the Agent’s authority or the Power of Attorney.  The persons who may petition for this judicial relief include the following.

a.     The Principal or the Agent

b.    A guardian, conservator, or other fiduciary acting for the Principal

c.    A person authorized to make health care decisions for the Principal

d.    The Principal’s spouse, parent, or descendant

e.    An individual who would qualify as a presumptive heir of the Principal

f.    A person named as a beneficiary to receive any property, benefit, or contractual right upon the Principal’s death, or as a beneficiary of a trust created by or for the Principal, that has a financial interest in the Principal’s estate

g.    A governmental agency having regulatory authority to protect the welfare of the Principal

h.    The Principal’s caregiver or another person that demonstrates sufficient interest in the Principal’s welfare

i.    A person asked to accept the Power of Attorney.

Bigstock-Several-Law-Books-With-Paragra-3525997Disinheritance statutes.  Several states (including Arizona, California, Illinois, Maryland, Oregon, and Washington) have enacted so-called “disinheritance statutes,” modeled after the more commonly encountered “slayer statutes.”  These laws preclude a convicted perpetrator of elder financial abuse from receiving benefits as a consequence of the death of the elder victim.  The abuser is deemed to predecease the victim for purposes of some or all of the following.

  1.  Inheritance under a Will or Living Trust.
  2. Inheritance under intestate statutes.
  3. Receipt of life insurance proceeds as a designated beneficiary.
  4. Elective share, statutory share, or homestead rights.
  5. Fiduciary appointments under documents executed by the elder victim.
  6. Benefitting as a permissible appointee of a power of appointment.

Registries of persons convicted of elder abuse.  Increasingly, Adult Protective Services agencies are creating and maintaining a registry of convicted elder abuse offenders that can be used to ascertain whether a prospective in-home caregiver (or other person with access to the elder) might have a history of, or propensity for, elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

 

 

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Financial Abuse of Elders & Other At Risk Adults – Part Seven

by with No Comment Uncategorized

The Crime of the 21st Century

The federal Older Americans Act mandates the establishment of a Long-Term Care Ombudsman (“LTCO”) program in all 50 states and the District of Columbia.  (The term “ombudsman” is Swedish for “citizen’s representative.”)  The LTCO is “dedicated to enhancing the lives of long-term care residents through advocacy, education and resolution of resident complaints, including those related to abuse, neglect and exploitation.”

See NCEA site at http://ncea.aoa.gov/Stop_Abuse/Partners/LTC_Ombudsman/index.aspx. 

Included in the scope of long-term care facilities subject to LTCO oversight are the following. 

·      Skilled nursing facilities (“nursing homes”).

·      Assisted living facilities.

·      “Board and care” homes (often referred to as “personal care homes” or “host homes”).

·      Intermediate care facilities for those with intellectual disabilities.

·      Other community living arrangements (e.g. group homes).

Bigstock-Abusedpiggy-6651443See National Long-Term Care Ombudsman Resource Center website http://www.ltcombudsman.org/about-ombudsmen.

The LTCO program is usually operated under the auspices of the “State Unit on Aging” or local “Areas on Aging,” which are part of the “Aging Services Network” mandated by the Older Americans Act and developed by the U.S. Department of Health and Human Services (“HHS”) Administration on Aging (“AoA”).  In April 2012, HHS established the Administration for Community Living, which consolidated the AoA, the Office on Disability, and the Administration on Developmental Disabilities. 

Complaints to the LTCO may be initiated by a call to the State Unit on Aging, the Regional Area Agency on Aging, or State LTCO Office, by either the resident herself, or on behalf of the resident by a friend, family member or other third party.  The NCEA maintains a database of all state LTCO contacts (state, regional and local), which can be accessed by calling the Elder Care Locator service at 1-800-677-1116 during regular business hours, or by visiting http://www.ltcombudsman.org/ombudsman.  Residents can also initiate a complaint in person when LTCO staff make periodic site visits to the facilities in their jurisdiction. 

Complaints of residents are informally investigated by LTCO personnel and resolved, if possible, by informal techniques such as mediation, conciliation, and persuasion.  If the complaint is not resolved informally, or if the nature of the complaint is so serious that it requires the involvement of a regulatory agency or law enforcement (e.g. alleged physical or sexual abuse or licensing violations), the matter is referred to the appropriate agency for formal investigation and resolution.  LTCO staff will engage in the necessary follow-up to assure that the formal investigation proceeds towards resolution of the resident’s complaint. 

All complaints lodged with the LTCO must be kept confidential, unless the resident authorizes the release of her name.  It is against the law for a facility to retaliate or discriminate against a resident for making a complaint to the LTCO.  Any person who makes a complaint in good faith is protected from civil and criminal liability.

In addition to the largely voluntary nature of many complaints lodged with the LTCO by, or on behalf of, residents of long-term care facilities, state law provides that certain persons having reasonable cause to believe that a resident or former resident has been abused or exploited while residing in a facility are mandatory reporters of such abuse or exploitation. Such reports are directed to be filed with the state Medicaid program and an appropriate law enforcement agency or prosecuting attorney. 

State law typically precludes public disclosure of the identity of the resident, the alleged perpetrator and the reporter unless required to be revealed in court proceedings, or upon the written consent of the person whose identity is to be revealed, or as otherwise required by law.  Retaliation or discrimination against a mandatory reporter is also prohibited.

Part 8 of this series will discuss several other legal resources for addressing alleged elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.