What Does Love Have To Do With It?
By Deena Zacharin, Esq.
It is not uncommon to want companionship, and elders are no exception. Unfortunately, an elder with diminishing capacity can easily become a victim of financial abuse if they and their advocates are not vigilant to watch for the indicators of possible exploitation (see box for some red flags). We all have cases where we question a client’s common sense, and may find ourselves in the uncomfortable position of having to warn the client that the feeling of love may be the result of manipulation.
Victims of elder mistreatment infrequently seek help for the problem on their own. In a recent survey by the National Council on Aging, only 21% of elders were concerned about financial scams, fraud and financial abuse. This is a surprisingly low figure given that the California Attorney General, a decade ago, reported that nearly 200,000 Californians are victims of financial abuse every year, and by all accounts, this number continues to rise. CANHR has found that for every case of financial abuse reported, as many as 43.9 others go unreported.
Often, the person who may be susceptible to undue influence is not the person who contacts the attorney. Given that the perpetrators of financial abuse are most often family, friends, neighbors and caregivers, attorneys must be particularly vigilant when approached by a third party on behalf of the elder, to make sure that the “concerned” third party is not facilitating the abuse.
When the elder does meet with an attorney, the first question the attorney confronts may be whether the elder has the capacity to enter into an attorney/client relationship. If the attorney is unsure of capacity after a review of the standards provided in California Probate Code Sections 810 et seq., further guidance as to the client’s capacity may be found through secondary documentation such as neuropsychological evaluations, medical records, doctors’ reports, or the elder’s copy of an application for insurance or to renew a driver’s license.
The California Elder Abuse and Dependent Adult Civil Protection Act (EADAPCA) (W&I Sec.15600-15675) includes in the definition of financial abuse a taking by undue influence. EADAPCA defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. …” (W&I Sec. 15610.70). The concept of love overcoming a person’s free will has been the topic of psychology and literature for generations. It can be very difficult for an attorney to parse out the difference between true companionship and the manipulations of a con artist. Unfortunately, the elder may not be agreeable to a voluntary neuropsych evaluation to help the attorney make that distinction.
(Deena Zacharin, Esq. is an attorney with Stebner & Associates in San Francisco)
Possible Indicators of Elder Financial Abuse:
- Unpaid bills, eviction notices, or notices to discontinue utilities.
- Withdrawals from bank accounts or transfers between accounts that the older person cannot explain.
- Bank statements and canceled checks no longer come to the elder's home.
New "best friends".
- Legal documents, such as powers of attorney, which the older person didn't understand at the time he or she signed them.
- Unusual activity in the older person's bank accounts including large, unexplained withdrawals, frequent transfers between accounts, or ATM withdrawals.
- The care of the elder is not commensurate with the size of his/her estate.
- A caregiver expresses excessive interest in the amount of money being spent on the older person.
- Belongings or property are missing.
- Suspicious signatures on checks or other documents.
- Absence of documentation about financial arrangements.
- Implausible explanations given about the elderly person's finances by the elder or the caregiver.
- The elder is unaware of or does not understand financial arrangements that have been made for him or her.
The National Committee for the Prevention of Elder Abuse
Page Last Modified:
December 11, 2015