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Recognizing and Preventing Financial Elder Abuse

LAW OFFICE OF GEORGE F. DICKERMAN

3879 Brockton Avenue
Riverside, California USA 92501
Tele: (951) 788-2156 begin_of_the_skype_highlighting (951) 788-2156 end_of_the_skype_highlighting
Fax: (951) 788-0906

Elder Law Newsletter

Recognizing the signs of financial elder abuse is relatively easy. What's required, is someone who cares enough to get involved. Many well-intentioned friends and neighbors may shy away from any involvement, for fear that they may become accused of intermeddling in family affairs. However, there are many agencies that can be contacted, anonymously, and will investigate allegations of abuse.

Adult Protective Services can provide such assistance. If they find compelling evidence of financial abuse, then they may contact the District Attorney's Office and request further investigation. If the elder appears incapacitated, then a referral from APS can be made to the Public Guardian's Office to determine whether a conservatorship is warranted.

These are just some of the tell tale signs of financial abuse to look for:

• A review of bank statements and checks that show unusual activity such as sudden withdrawals of large sums.
• Numerous ATM withdrawals, particularly when the elder has never used such a debit card.
• Numerous checks written to "cash".
• Signatures on checks that don't match the elder's signature.
  

Suspicious activity could also include a newly created will, trust, or financial power of attorney. Life insurance paperwork or bank documents that indicate a change of beneficiaries are also indicators of wrongdoing.

A key element of such abuse is "isolation". When a caregiver or family member consistently refuses to allow visitation, then a red
flag warning should go up. If abuse is occurring, the last thing a perpetrator wants is to allow someone to have access and possibly discover the abuse.

Prevention occurs when concerned family members, friends and other loved ones get involved with the elder's life and provide assistance. No one wants another to pry into personal financial affairs; however, with good intentions and focusing solely on the best interests of the elder, most will accept such help when needed. Most counties have Area on Aging offices that offer free assistance and can provide other services or resources to prevent future problems from occurring.

When abuse has already occurred, then quick action must be taken to stop the financial bleeding. Immediately contact the relevant financial institutions, law enforcement, Adult Protective Services, and/or an attorney. Many states have "mandated reporter" laws that require, for example, bank employees, medical personnel, and a variety of other persons to report to law enforcement any reasonable suspicion that abuse is taking place.

Recognizing the signs of elder financial abuse makes it easier to take precautionary steps to prevent it from occurring in the first place. As the saying goes, the best offense is a good defense.

NEW LAWS CHANGE "NO CONTEST" CLAUSES 2010

Law Office of George F. Dickerman
3879 Brockton Avenue
Riverside, CA 92501
(951) 788-2156
=====================

Elder Law Newsletter

In California, a "no contest" clause, in a Will or Trust, generally prevented any beneficiary from challenging that document. If a beneficiary filed a petition in the probate court, in an attempt to have the court void or change the Will or Trust, then the "no contest" clause could automatically disinherit that beneficiary - simply because s/he tried to challenge the validity one of the document's terms.

Previously, the Probate Code provided a way for beneficiaries to ask the court, before they filed a challenge, whether their proposed petition would be considered a violation of the document's "no contest" clause. The request to the court was to obtain a determination of "safe harbor"; that is, that the proposed challenge would not be considered a violation of the "no contest" clause.

If the court ruled against the safe harbor petition, then the disgruntled beneficiary would simply back away because the court would have said that the filing of a challenge would result in the beneficiary's disinheritance.

However, if the court ruled in favor of the beneficiary, then it would have granted a "safe harbor" and the disgruntled beneficiary could file his or her petition to challenge the terms of the document.

On January 1, 2010, the law was changed.

The "safe harbor" rights have now been repealed, and Probate Code 21310, et seq., have been added. The new laws define many phrases used in Wills and Trusts, including the definitions of a "contest" and "direct contest".

Again, there is no longer a "safe harbor" provision. Instead, the new laws state that a "no contest" clause shall only be enforced against the following types of contests:

(1) A direct contest that is brought without probable cause. A "direct contest" is one that challenges the terms of a Will or Trust based upon numerous grounds, including lack of capacity, menace, duress, fraud, or undue influence.

(2) A pleading to challenge a transfer of property on the grounds that it was not the transferor's property at the time of the transfer.

The biggest change in the law is that an upset beneficiary can now file a direct contest to challenge the terms of a Will or Trust.

If they win, then the court will have expressly determined that the beneficiary met his or her burden of proof by showing that the challenged Will or Trust provision was void - based upon either lack of capacity, menace, duress, fraud, or undue influence, etc.

However, if the beneficiary loses at trial, then s/he must prove that their burden of proof was almost met; that is, that they demonstrated that enough "probable cause" existed to warrant their belief that the Will or Trust provisions would have led a reasonable person to believe that lack of capacity - or one or more of the other elements (above-mentioned) - existed. If the court determines otherwise, then the beneficiary will be determined to have violated the "no contest" clause and thus be disinherited.

Most certainly, cases will be appealed and the appellate courts will interpret these new laws and provide clarity on their application to specific facts.

Is Depression After Losing a Loved One Normal

Ask the Doctor
Leslee B. Cochrane, MD.
Medical Director

Ramona Visiting Nurse Association and Hospice

Question: “My husband passed away nearly a year ago and I still feel depressed, is this normal or is something wrong with me?”

When we experience the loss of a loved one it is normal to experience a sense of deep sadness. Grief is a normal response to loss and may typically involve a wide variety of feelings ranging from emotional numbness to anger. You may experience physical changes such as weakness, trembling, loss of appetite and difficulty sleeping. Although some people may cope very well following the loss of a spouse, it is more common to experience some degree of emotional and spiritual distress.

There is no “normal” length of time it takes to grieve. Grieving is a very individual experience that is influenced by a wide variety of factors. Grief is a journey that begins with a deep sense of sadness which at first may feel overwhelming. As you continue the journey you will find that over time the sadness slowly becomes less intense and is later interspersed with happy memories. For most people the grieving process will be slow and gradual. Feeling sadness a year after the loss of a spouse is quite normal, especially if you were married for many years.

In normal grieving you will gradually become less consumed by your loss over time and experience renewed energy enabling you to go on with your life. Many patients benefit from attending a bereavement support group to help process through their loss. Occasionally, normal grieving can be complicated by clinical depression that may warrant treatment. If you are experiencing severe and disabling symptoms such as depression, sleep or appetite disturbance or difficulty coping that is not improving over time, I advise you to consult with your physician.

For a list of bereavement support groups available in our community at no charge, call the Healthy Elder Life Program, H.E.L.P. Line at 1-888- 983-5337 or visit us on the web at www.ramonavna.org. In closing I would like to offer some words of wisdom from Charlie Brown: “Good Grief!”


If you would like to submit a question please contact Jennifer Trebler at jtrebler@ramonavna.org.