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INTRO: In Part One of this series, I reported that it is difficult to combat elder financial abuse. Sometimes it isn’t recognized or at least not until it’s too late – the abuser and/or the money disappears. Tragically, such cases are hugely under-reported because the elder victim and/or family is embarrassed or just wants to move on. Today you will learn about the legal options an elderly person and his/her family have to prevent this kind of tragic, rampant fraud.
Of course, once married, the abuser manipulates the vulnerable elder into making gifts to the abuser and/or turning over access to the elder’s assets. Sometimes, the abuser persuades the victim to change the elder’s Will or Living Trust so that the abuser spouse becomes the sole or major beneficiary. If not, on the elder’s death the abuser spouse can claim a share of the elder’s estate as an “omitted spouse” (or if the victim had no Will or Trust, the abuser may be entitled to the victim’s assets by intestate succession).
Marriage is profoundly personal and favored by public policy. The government can’t practically decide or second guess who marries for “the right reasons”. Nevertheless, some kind of legislative recourse would seem to be rightfully available to relatives of victims of deathbed marriages. Unfortunately, only a few states, including Florida (not California), have enacted protective statutes. In fact, a substantial minority of states in our country have laws prohibiting heirs from challenging deathbed marriages!
Naturally, the most effective means of fighting elder financial abuse is to prevent it from happening in the first place. Elder abuse clinics and other outreach programs sponsored by professional, judicial and other non-profit organizations help build awareness and offer useful tools. Close relatives or friends of the elder citizen are sometimes willing and able keep an eye out for signs of potential abuse.
Otherwise, what can you do to try to prevent this kind of tragic, rampant fraud and deception? Whether you are elderly yourself or a child of parents who are of advanced age, you should make sure that you (or your elderly parents) seek appropriate legal advice. While hiring an experienced estate planning attorney is not a guarantee against such abuse, it can help considerably.
Among other things, the attorney can make a threshold assessment of the elderly client’s capacity; ensure that documents are in place that reflect the client’s bona fide, current wishes; recommend and oversee titling of assets in a careful and appropriate manner; and create documents in which caring and responsible family members and friends (or private or institutional fiduciaries) are nominated to hold important roles, such as attorney-in-fact under a Power of Attorney and trustee or co-trustee of the elder’s revocable living trust.
This article is intended to provide information of a general nature, and should not be relied upon as legal, tax, financial and/or business advice. Readers should obtain and rely upon specific advice only from their own qualified professional advisors. This communication is not intended or written to be used, for the purpose of: i) avoiding penalties under the Internal Revenue Code; or ii) promoting, marketing, or recommending to another party any matters addressed herein.
Mr. Silverman is an attorney with R. Silverman Law Group, 1855 Olympic Blvd., Suite 125, Walnut Creek, CA 94596; (925) 705-4474; rsilverman@rsilvermanlaw.com.
ESTATE LEGAL SERVICES: Need to find an estate planning attorney in Walnut Creek CA? Contact Robert Silverman at 925-705-4474 for legal advice on Revocable Living Trust, Wills, Durable Power of Attorney, Advance Health Care Directive, Special Needs Trusts, and Irrevocable Trusts & Advanced Estate Planning, including Irrevocable Life Insurance Trust (ILIT), Qualified Personal Residence Trust (QPRT), Defective Grantor Trust (IDGT), Grantor Retained Annuity Trust (GRAT), “Crummey Trust”, and various types of Charitable Trusts.
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