Financial Elder Abuse has become Increasingly Common
It is a sad fact of life that elders who have worked and saved their entire lives become vulnerable in their later years to financial elder abuse. While elder abuse may be physical, it is more broadly defined to include financial abuse. The laws provide remedies and the courts have become more sensitive to this issue.
- Is the person an “elder” or “dependent adult?”
An elder is defined as anyone 65 or older. A dependent adult may be younger, and is one that due to physical or mental condition must depend on another for care.
- Has there been “financial abuse?”
Everyone has the right and capacity to dispose of their property as foolishly as they choose. If they have been subjected to unusual pressure, duress, coercion, trickery, artifice or device to part with their property to the benefit of some other person, there may be elements of financial abuse.
- Is the object of the elder’s bounty a fiduciary or enjoy a confidential relationship?
When a person has a fiduciary or confidential relationship with the elder and has received property or value from the elder, there may be a presumption of fraud without proving actual fraud or any lack of competency of the elder.
- Does the elder suffer from any medical or mental condition?
If at the relevant time the elder is suffering from mental or medical conditions which materially affect his or her ability to resist the importuning of others, resulting in the impoverishment of the elder and/or otherwise benefiting the recipient of the elder’s largesse, grounds may be established for a case of elder abuse.
- Does the elder require appointment of a conservator?
If the elder does not seem able to take action by himself or herself to stop the financial abuse and seek recovery directly against the recipient, then some person must apply to the probate court to be appointed conservator to seek recovery.
- If the elder has passed away, appointment of an estate representative may be required
Frequently elder abuse is not discovered until after the elder has died, in which event someone (usually a natural heir) must seek appointment as estate representative and sue the recipient for recovery of any property obtained as a result of elder abuse during the elder’s lifetime.
- Remedies include damages, attorney fees, injunctive relief.
The good news is that a successful case to recover property obtained by elder abuse may include damages (including punitive), attorney fees, and injunctive orders requiring the recipient to disgorge the ill-gained assets and their proceeds.
About the Author
Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.