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Wednesday, November 17, 2010

What You Need to Know About Elder Abuse in California


Huguette Clark and Brooke Astor have a lot of things in common. They both were wealthy beyond wildest imagination, they both enjoyed their 104th birthday, and they both seem to have suffered elder abuse at the hands of the people they entrusted with their care. 
In 2009, Brooke Astor's son and attorney were convicted of stealing $10 million from the socialite's $100 million fortune. Today, investigations into the actions of the advisors (attorney and account) for104-year-old Huguette Clark, a reclusive heiress worth half a billion dollars, are being conducted by the New York District Attorney’s Office.  
It begs the question, who would steal from your grandmother? The answer unfortunately is far too common. In the Astor case, Brooke’s own son was convicted of grand larceny and in Huguette’s case, the lawyer and accountant are being investigated. Sadly,  the issues surrounding the handling of the money of these two women are not unique.   
It is estimated that near half a million elderly people are being abused by family, friends, and/or advisors, potentially taking $2.6 billion from infirm older Americans. The crime is known as elder financial abuse. Financial expert and consumer advocate, John Wasik has called it "the crime of the 21st century."
How does it happen? Many of these elderly people are too sick or infirm to know that abuse is taking place or to be able to report the abuse. If a person has dementia or alzheimer’s disease they are not going to know that their money is being squandered. For those that suspect there is an issue, fear of abuse, abandonment, and retribution also play a role in keeping them from reporting their concerns. 
Commonly, the tool used by the criminals who steal from the elderly is the power of attorney document, which enables a designated person to make the financial decisions on behalf of another. The decisions of the person exercising the power of attorney are rarely reviewed, and the document has been called a "license to steal." Even though there is a fiduciary responsibility on the part of the person appointed, if no one is holding them accountable, they can get away with the crime.  
In order to protect the elders in your life, it is of the utmost importance to get involved and stay involved in their lives. The crimes are often unreported or not pursued because relatives or friends are not involved in an elder’s life or assume that someone else is looking out for them. People are reluctant to get involved because they do not want to be perceived as a trouble-maker or greedy. The concern that they will be regarded as only looking out for their own interests in an inheritance also often keeps people from speaking up. 
Remember that this is abuse, and if there is financial abuse, there is likely other forms of abuse occurring as well. Having as much information as possible is helpful. Ask questions, lots of them. Get documents like bank statements and investment records. Keep in mind you are not alone, every state has an Adult Protective Services agency. Find the one that serves your area, and make a report. The new healthcare reform package has a provision called the Elder Justice Act, which set aside nearly $800 million to expand efforts to investigate elder financial theft over the next four years. This is a growing problem and elder care professionals are working to stem this type of fraud and abuse. 
But make no mistake, the power of attorney is not the problem itself. It is a good and very useful document, and as estate planners and elder law attorneys, we do recommend executing one and will continue to do so. However, the power of undue influence is so great that if a family member, or friend, or advisor is entrusted to care for an elder, they are often trusted to the point they can drive that elder to the bank and stand by while money is withdrawn and turned over to them. You would be surprised often this happens. You would also be pleasantly surprised to know that on numerous occasions, very astute and well intentioned bank tellers report the incidents. They get involved and by doing so are thankfully able to thwart a theft or prevent a future abuse. 
Do not be confused, just because Susie is going to inherit all of her mother’s money when she dies, this does not mean that Susie can help herself to part, some, or all of her mom’s money during her mother’s lifetime. Susie is not entitled to it until she actually inherits it at the time of mom’s death. Susie may be paying for kid’s college education, trying to save her own house from foreclosure, or heading for a lavish vacation on Mom’s money, however, not one of those reasons is justification for taking mom’s money. Hey Susie...its not your money! Mom still has to pay for her healthcare, housing, and living expenses. And what if mom needs a vacation?. Once its gone, the money is gone, and that can happen pretty quickly these days. Do not be afraid to get involved.
If you suspect an elder is being taken advantage of by a family member, friend or anyone else. Do not sit idly by. If it were you, your grandmother or grandfather, wouldn’t you want someone to help?

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The lawyers at Sowards Law Firm assist clients with Estate Planning, Wills, Living Trusts, Probate, Estate Administration, Medi-Cal Planning, Business Law and LLC Preparation throughout California, including clients located in and around, Oakland, Palo Alto, Petaluma, Pleasanton, Point Reyes, Redwood City, Richmond, Salinas, San Carlos, San Francisco, San Jose, San Leandro, San Rafael, San Ramon, Santa Clara, Santa Cruz, Santa Rosa, South San Francisco, Sunnyvale, Union City and Vallejo.

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