Newland's Business Notes

Betrayal of the Elderly

Volume 11 Issue 6 -- November/December 2007

The health of Ferdinand (hereafter, “Ferd”) is failing, after his reaching age 85.  His niece Sally (hereafter “Sal”) has agreed to live with him and to help Ferd manage his affairs.  Everyone in the family believes it is in the best interest of Ferd to have Sal take care of him. 

After Sal moves in, Ferd’s children begin to wonder about the arrangement.  If they suspect problems, what signs should they look for? 

First, Ferd’s children should try to visit him as often as possible.  When doing so, they can look for a variety of things if they have reasons to suspect that Sal might be taking advantage of Ferd.  For example, has Sal’s lifestyle changed?  Is she now driving a better car than would one expect based on her income? 

What about Ferd?  Has he stopped going to church, meeting with social groups or talking with other family members?  What about those friends that used to visit Ferd or has he stopped visiting them?  These types of changes, both by Ferd and Sal, can be indicative of potential problems. 

Let’s say that several months after moving into Ferd’s house, Sal takes Ferd to a different attorney to prepare new estate planning documents.  Certainly, there is nothing wrong per se with updating documents.  Indeed, far too often, elderly people fail to update their Wills or Trusts when needed because of deaths of beneficiaries, law changes or changes in asset ownership.  However, if Ferd has changed his documents, it would not be improper for his children or other family members to ask about the changes.  If Ferd, Sal, or both resist disclosing such information, there may be reasons to suspect changes which favor Sal to the exclusion of others.

While it is better to have the children and others in the family be aware of the contents of Wills and Trusts, it is not necessary that they know everything.  There may be legitimate reasons why Ferd would not want to let a relative know what is in his documents if, for example, he has specifically excluded a child. 

If Sal is inclined to take advantage of her uncle, another thing she might do is change contractual arrangements such as Payable On Death (“POD”) bank accounts.  These could be changed to provide that Sal will obtain the POD accounts when Ferd dies.  It might be reasonable for Ferd to make perhaps one bank account POD but not all of them.

Insurance policies are another area where Sal might want Ferd to make changes favoring her.  He might make her the sole beneficiary of his insurance policies and exclude his children and perhaps the trustees of his Trust. 

If a person such as Sal is inclined to take advantage of an elderly individual, she may tell Ferd that if he complains about any abusive treatment by her then she will abandon the care that is being provided.  Some elderly people are afraid of showing weakness and will be secretive about duress because they do not want to indicate that they have lost some of their abilities. Also they may feel that they have to protect the care-giver in order to perpetuate the care. 

Walking the extremely thin line between suspicions of abuse and invading the privacy of the elderly person is very difficult. 

If Sal is pure as the driven snow, Ferd may become very antagonistic if one of Ferd’s children starts to question Ferd’s judgment.  When, where, and how to intervene, if intervention is in order, is impossible to state simply. Proper intervention depends on sound instinct and discreet observation of both Ferd and Sal.

If Sal starts spending money on expensive cars or lavish clothing, alarm bells should go off.  Similarly, if Ferd has become reclusive and refuses to talk with his children with whom he was previously friendly, the alarms should go off.  These are the obvious cases. 

Most cases are not so obvious, and these are the hardest situations, where clear abuse is not present but there is sound reason to suspect that things are not quite right.

Television and movies make dramatic court scenes where duress or undue influence is proven, but the reality is different.  It may be extremely expensive to hire an attorney to challenge a Will or Trust on grounds of  duress.  The best course of action is to keep the line of communications open with Ferd while he is alive. 

If you need assistance with estate planning or related problems, call Newland & Associates.

Copyright 2007

Published by the law firm of Newland & Associates, PLC
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Manassas, VA 20110
Call us at (703) 330-0000 for a full range of business law and tax-related services.

While designed to be accurate, this publication is not intended to constitute the rendering of legal, accounting, or other professional services or to serve as a substitute for such services.

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