Elder Law Attorneys

George F. Dickerman, Attorney

Elder law attorneys address the legal issues that arise as a consequence of the aging process. Elder law is a rather large umbrella and covers the areas that are most practical to the problems that seniors face. Here are the top five ways that these lawyers can assist the elderly:

- 1. Elder Financial Abuse. These are cases where financial predators use undue influence, manipulation and coercion to take property and money from elders who have diminished mental capacity. The perpetrators can by anybody, but are usually family members, caregivers or friends who have the most access to the elder and are least likely to be challenged by outsiders.
- 2. Nursing Home Abuse. Abuse or neglect of a nursing home patient generally results from inadequate staffing where there are too many patients and not enough nursing assistants. Sometimes, this is a conscious policy on the part of the nursing home owner who puts corporate profit ahead of patient care. Fortunately, there are many legal remediesavailable to stop these wrongful acts and to compensate the elderly victim for injuries suffered.
- 3. Conservatorships. When an elder is no longer able to make sound financial and healthcare decisions, and no other alternatives are available, then a request can be made for the court to establish a conservatorship and appoint someone to have the legal authority to make such decisions. This is an involved process but provides a solution to assist an elder who can no longer protect them self.
- 4. Estate Planning. "Living trusts", powers of attorney for financial and healthcare decisions, and wills are the primary documents that constitute a person's estate plan. These written instructions assist the elderly client both during their lifetime and afterwards. A proper estate plan can also avoid the need to establish a conservatorship if the elder becomes unable to make sound decisions. These documents grant all of the legal authority needed to carry on the elder's affairs - without having to seek court involvement.
- 5. Medi-Cal Planning. This term applies to California residents and involves the process of obtaining Medi-Cal benefits to pay the sky-rocketing costs of long term care in a skilled nursing facility. Planning involves three stages: (1) Thorough analysis of the client's financial status to develop a written strategy to obtain eligibility, reduce any share of cost, and avoid recovery claims; (2) Execution of the written strategy; and (3) Completion of the application process. Medi-Cal law is complicated and requires a lawyer experienced in the nuances of the various rules and regulations.
There are many other sub-fields that fall under the elder law umbrella. Each has its own peculiar application and importance as a piece of the elder law puzzle. This brief article has addressed only the top five ways that elder law attorneys can assist their clients.

Law Office of George F. Dickerman
3879 Brockton Avenue, Riverside, California 92501
(951) 788-2156
www.Elder-Law-Advocate.com

ELDER ABUSE - Constructive Fraud

George F. Dickerman, Attorney

In elder financial abuse cases, it is often difficult to prove that the defendant intended to commit a fraud against an elder. Many times, the elder is incapacitated and unable to give meaningful testimony at trial and the only eyewitness that can testify is the defendant.

Constructive fraud can then play an important role in proving the case of financial abuse. The defendant's actual fraudulent intent is not required. Instead, the law looks to other factors to show that a fraudulent occurrence took place. These other factors include the existence of a confidential or fiduciary relationship where the defendant had the opportunity to take advantage of, or exercise undue influence over, the elder.

For example, a paid caregiver who spends a substantial amount of time with an elder will have developed such a special confidential relationship. When this occurs, the caregiver owes a moral, social and domestic duty not to take advantage of the elder's weaker state of mind. But how can a fraud be committed when the defendant did not have an actual intent to commit fraud?

Here's an example: A caregiver wants to receive a cash gift from the elder and convinces her that it would be wonderful if she would sign several checks to the elder's children, and then also drops a hint that the caregiver would also appreciate such a gift. The elder agrees, signs all of the checks, and the caregiver agrees to deliver them to the children. However, the caregiver then decides that she wants all of the money, and forges the signatures of the elder's children and endorses each of their checks to the caregiver. Under this scenario, the fraudulent intent was not present until after all of the checks were signed by the elder. However, the totality of the circumstances, including the caregiver's initial desire to receive her own gift, clearly show that the caregiver's actions were fraudulent and that she breached her duty in order to gain an advantage over the elder.

In California, the fiduciary relationship has been extended to every possible case in which a fiduciary relation exists as a fact. Such relation need not be legal; it may be moral, domestic or merely personal (Foster v. Keating (1953) 120 CA2d 435).

When such a special relationship can be shown, the law then imposes a presumption that the elder was subjected to undue influence. This acts to shift the burden to the defendant to prove that fraud did not occur.
This presumption is implemented to further the public policy of securing an elder's property and money when they have been entrusted to others.

Constructive fraud is another theory to prove that elder financial abuse occurred when the evidence is limited because of the elder's incapacity. The theory should be utilized by attorneys as one of numerous other causes of action to be included in a lawsuit for financial abuse.

Law Office of George F. Dickerman
3879 Brockton Avenue, Riverside, California 92501
(951) 788-2156
www.Elder-Law-Advocate.com
george@Elder-Law-Advocate.com

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