Our elders need protection from the predators who exploit their vulnerabilities for financial gain. Financial Elder Abuse occurs when a predator receives money or property through fraud or undue influence over an elder.
An elder is anyone 65 years or older, or a dependent adult. These elders are protected under California law. A predator can be any person or any entity. Usually—and despicably—the predator is a family member or close friend, who knows the elder is vulnerable and uses it to their advantage.
Consider this example:
Mom is suffering from memory loss and needs help with her care. Dad passed away years ago and now Son, who is financially burdened, agrees to move in to help care for her. It appears to be a win-win. Mom is cared for while Son lives rent-free. But, Son has ulterior motives. Through a newly established emotional dependency and trust, Son convinces Mom that he is the only person who cares about her. Son ultimately convinces Mom to change her Trust and give him her house and her bank accounts.
Son conceals his ill intentions by keeping his plan and changes to the Trust a secret. After Mom dies, you discover she left everything to Son. Son then puts the house and the bank accounts in his name, leaving you nothing. The change does not make sense because you were always there for Mom when she needed you. You are left confused and feeling guilty whether you did enough for Mom. So, what can you do to fix this?
This example or some variation occurs daily. And when it happens to you, you need to file a Financial Elder Abuse case against Son to invalidate the instrument that gave everything to Son—disinheriting you.
Competency Does Not Prevent Victimization
Importantly, the elder can be competent and still be a victim of Financial Elder Abuse. In California, Courts understand that an elder or dependent adult could suffer from a physical or mental disability that leaves them vulnerable to predatory abuse. In most cases the elder is dependent on the predator, which leaves them vulnerable; resulting in the greatest risk of abuse.
In California, undue influence occurs when the elder’s free will to make a decision is overcome by the predator. The Courts apply a four-part test to determine whether an Elder is a victim of undue influence:
- The vulnerability of the victim.
- Evidence of vulnerability includes incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the bad acting person knew or should have known of the victim’s vulnerability.
- The predator’s apparent authority.
- Evidence of apparent authority includes status as a Trustee, Executor, Conservator, or other type of Fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
- The actions or tactics used by the predator.
- Evidence of actions or tactics used include (i) controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; (ii) Use of affection, intimidation, or coercion; and (iii) 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.
- The equity of the result.
- Evidence of the equity of the result includes 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.
What Can You Do?
If a friend or a family member was the victim of financial elder abuse, please contact the Perryman Law Firm. We will fight to expose the predator, bring justice and fulfill the victim’s true intentions.
noun | \'trəst\ | [truhst]
Reliance on the integrity, strength, ability, surety, etc., of a person or thing; confidence.