Photo

Congratulations to Peggy Timmel, LWP Member Of The Month

by with No Comment Asset ProtectionEstate Planning Drafting SoftwareLegal MarketingMedicaidSNTVA

What is the greatest success you’ve had since joining LWP? 

Organization + Confidence = Increasing Success.  That’s the formula we now have in place.  Sure, we still are working through some of the processes, making them our own and getting the kinks worked out when and as needed.  Not all clients initially expect the process to be as involved, but there is no doubt that our efforts are appreciated. 

PhotoWhat is your favorite LWP tool?

LWP Meeting Focuser (the green sheet) – it may sound strange to some members, but that sheet is reviewed at the end of client meetings so that tasks are delegated and the next meeting with the client put on the calendar.  I’ve been using it for cases that are pre-LWP or non-LWP, like guardianships.  It keeps our team more focused and allows us to move our clients through the entire process more smoothly.

How has being part of LWP impacted your team and your practice? 

We get to travel three times a year and always come back with something to improve our practice.  It has been incredibly helpful to have the support system that LWP provides.  The members provide a great community of support and the LWP systems and processes give us a great foundation to continually improve our practice.

Bigstock-Several-Law-Books-With-Paragra-3525997

Civil Remedies For Elder Financial Abuse

by with One Comment SNT

Private civil actions for elder financial abuse under state law could include a complaint for restitution, compensatory damages, and punitive damages under one or more of the following.  The burden of proof for civil claims is usually "preponderance of the evidence."

  1. Specific statutory causes of action for elder financial abuse or exploitation.
  2. Fraud or constructive fraud on the elder.
  3. Breach of fiduciary duty, or aiding and abetting a breach of fiduciary duty, to the elder.
  4. Negligence.
  5. Rescission of transactions that damaged the elder.
  6. Conversion of assets stolen from the elder.
  7. Actions for an equitable accounting of the actions of a fiduciary charged with managing the property of the elder, whether as a Trustee or an agent (e.g. under a Power of Attorney).  Section 116 of the Uniform Power of Attorney Act (“UPOAA”) allows for certain persons to petition a court only “to construe” a Power of Attorney or “to review the agent’s conduct” thereunder, and to grant appropriate relief, but only if the Principal lacks the capacity to revoke the Agent’s authority or the Power of Attorney.  The persons who may petition for this judicial relief include the following.

a.     The Principal or the Agent

b.    A guardian, conservator, or other fiduciary acting for the Principal

c.    A person authorized to make health care decisions for the Principal

d.    The Principal’s spouse, parent, or descendant

e.    An individual who would qualify as a presumptive heir of the Principal

f.    A person named as a beneficiary to receive any property, benefit, or contractual right upon the Principal’s death, or as a beneficiary of a trust created by or for the Principal, that has a financial interest in the Principal’s estate

g.    A governmental agency having regulatory authority to protect the welfare of the Principal

h.    The Principal’s caregiver or another person that demonstrates sufficient interest in the Principal’s welfare

i.    A person asked to accept the Power of Attorney.

Bigstock-Several-Law-Books-With-Paragra-3525997Disinheritance statutes.  Several states (including Arizona, California, Illinois, Maryland, Oregon, and Washington) have enacted so-called “disinheritance statutes,” modeled after the more commonly encountered “slayer statutes.”  These laws preclude a convicted perpetrator of elder financial abuse from receiving benefits as a consequence of the death of the elder victim.  The abuser is deemed to predecease the victim for purposes of some or all of the following.

  1.  Inheritance under a Will or Living Trust.
  2. Inheritance under intestate statutes.
  3. Receipt of life insurance proceeds as a designated beneficiary.
  4. Elective share, statutory share, or homestead rights.
  5. Fiduciary appointments under documents executed by the elder victim.
  6. Benefitting as a permissible appointee of a power of appointment.

Registries of persons convicted of elder abuse.  Increasingly, Adult Protective Services agencies are creating and maintaining a registry of convicted elder abuse offenders that can be used to ascertain whether a prospective in-home caregiver (or other person with access to the elder) might have a history of, or propensity for, elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

 

 

Bigstock-Abusedpiggy-6651443

Financial Abuse of Elders & Other At Risk Adults – Part 9

by with No Comment SNT

Remedies For Elder Financial Abuse: State Criminal Prosecution

Although the Adult Protective Services (“APS”) statutes and programs in all 50 states and the District of Columbia recognize elder financial abuse as a reportable action, not all states specifically recognize elder financial abuse or exploitation as a distinct crime.  In those states, however, basic criminal laws against theft, fraud, deception, larceny, forgery, and embezzlement can be invoked to prosecute elder financial abuse and seek restitution for the elder.  The burden of proof for a conviction under such statutes is typically “beyond a reasonable doubt.”

Bigstock-Abusedpiggy-6651443Frequently, however, prosecutors refuse to pursue elder financial abuse actions for a variety of reasons, including (i) insufficient support of APS investigations by law enforcement personnel; (ii) limited budget resources; (iii) the effect of the incapacity or death of the victim on the ability to marshal sufficient probative evidence; and (iv) the refusal of the victim to cooperate with the development of the case.

Specially trained multi-disciplinary teams of criminal justice and social service professionals are increasingly being trained and deployed to enhance state efforts to prosecute elder financial abuse.  Collaboration between and among the following disciplines promises to increase the effectiveness of state efforts to convict and punish the perpetrators of elder financial abuse: (i) APS,State Units on Aging, and Long-term Care Ombudsman Offices (“LTCO”); (ii) state and local law enforcement agencies; (iii) policy makers; (iv) financial and banking industries; (v) legal; (vi) social services agencies and social workers; (vii) medical and mental health care providers; (viii) public health officials; (ix) medical examiners and coroners; (x) state insurance, banking, and securities regulators; (xi) district Attorneys and state Attorneys General; and (xii) consumer protection agencies.

An example of a successful multi-disciplinary team established by the Georgia Department of Human Services Division of Aging Services, Forensic Special Investigations Unit, is the “At-Risk Adult Crime Tactics” (“ACT”) Specialist Program.  Over 800 ACT specialists are working in Georgia, with promising results at the local, state and federal levels to combat and prosecute the abuse, neglect and exploitation (“ANE”) of at-risk adults.  An ANE work group comprised of representatives of local agencies (e.g. county and city police departments, county District Attorney’s Offices), state agencies (e.g. the Georgia Bureau of Investigation, APS, LTCO, Medicaid, Inspector General, Georgia Association of Chiefs of Police, Georgia Criminal Justice Coordinating Council), and federal agencies (e.g. the FBI; the Offices of Inspector General of the Social Security Administration, HHS, FDA, VA; and the United States Attorney’s Office) meets bi-annually to identify and address obstacles to preventing and prosecuting crimes against at-risk adults.  Recommended solutions include the following.

(a) Increased public education and awareness of ANE of at-risk adults.

(b) Mandatory training of criminal justice personnel at all levels (e.g. law enforcement, prosecutors, judges) on ANE of at-risk adults.

(c) Expedited investigation and prosecution of crimes against at-risk adults.

(d) Development and codification of evidence preservation procedures designed to enhance prosecution of ANE crimes against at-risk adults.

(e) Development of multi-disciplinary cooperation and collaboration between law enforcement and non-law enforcement government agencies to ensure equal protection for at-risk adult victims.

(f) Facilitation of information sharing between and among government agencies to support investigations and enforcement.

(g) Statutory changes to enable law enforcement to obtain financial records related to abuse and exploitation in a no-cost or low-cost manner.

(h) Development of funding resources to implement the foregoing recommendations.

The activities of the Georgia Department of Human Services Division of Aging Services to combat the societal plague of ANE of at-risk adults is documented in a recent public television production Elder Abuse: Hiding in Plain Sight (available at http://www.gpb.org/elder-abuse).

Part 10 of this series will explore the challenges of prosecuting interstate and international elder financial abuse schemes.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

 

Bigstock-Abusedpiggy-6651443

Financial Abuse of Elders & Other At Risk Adults – Part Eight

by with No Comment SNT

Parts 6 and 7 of this series addressed the roles of Adult Protective Services and the Long-Term Care Ombudsman Programs in investigating and redressing alleged elder financial abuse.  There are several other resources available to handle the myriad legal issues raised by this crime.

Bigstock-Abusedpiggy-6651443The Older Americans Act provides funding for state legal services programs designed to address the needs of elders.  In the context of elder financial abuse, such programs can provide no-cost access to the justice system by offering advocacy, advice and legal representation to persons 60 years of age or older, including access to an attorney.  Due to limited budgetary resources, these legal services programs accept only a small percentage of the cases referred to them.  The staff of these programs also routinely present community education programs addressing topics of interest to elders, including consumer fraud and financial exploitation.  This type of community education often helps prevent elder financial abuse from occurring.

Some states also maintain a “Senior Legal Hotline,” which provides brief telephone assistance and advice on civil legal matters to, and on behalf of, persons 60 years of age and older.  Attorneys are available to answer legal questions during regular business hours.  Additional resources are sometimes available by collaborating with APS programs if the case involves elder abuse and neglect, adult guardianship or conservatorship matters, or elder financial exploitation. 

Increasingly, private law firms are offering pro bono legal services to the victims of elder financial abuse.  Holland and Knight, which represented Mickey Rooney in a well-publicized civil lawsuit for financial abuse against his step-son, Christopher Aber, has created “The Mickey Rooney Elder Abuse Pro Bono Project.”  Private attorneys agree to pursue elder abuse cases that otherwise would not be pursued.  The initiative is reportedly being replicated in law firms across the country.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.