Betrayal of the Elderly
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.
Copyright 2007
Published by the law firm of Newland & Associates, PLC
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