• The Supreme Court’s majority opinion rightly found, “[a]ll good trust-and-estate lawyers know that ‘[d]eath is not the end; there remains the litigation over the estate.’”

    Sveen et al. v. Melin, 584 U.S. ___ (2018), slip op. at 1

  • Financial Elder Abuse in California - Financial elder abuse occurs when people cheat elderly people out of their money or their property. California law defines elderly people as those who are aged 65 or older. Because the elderly are uniquely susceptible to being cheated as they grow older, California's legislature passed the Elder Abuse Act to provide a remedy and financial elder abuse lawsuits for elderly people who have been cheated.

Unfortunately, elderly people are often particularly dependent on other people for their care, which puts them in a vulnerable position. They can be taken advantage of by people they trust, such as family members, by other caregivers, or by staff at nursing homes.

Long-term elder care is on the rise, mainly because Americans are living longer and the first wave of baby boomers has now reached retirement age. As a result, not only are more seniors than ever utilizing long-term care insurance and assisted living facilities, many are also choosing to live independently. But longevity and an increasing elder population can create many challenges--some of which can lead to elder care lawsuits. Senior legal concerns can include nursing home abuse, senior scams, bad faith long term care insurance, nursing home neglect, and financial elder abuse.

While getting older no longer necessarily carries images of frailty or dependency, many seniors do at some point require full-time health care assistance and/or help with financial matters--either from a financial planner or, more often, a loved one. In all cases, trust is of utmost importance but unfortunately, not all caregivers are completely trustworthy--even, for example, when Power of Attorney is granted to next-of-kin.

Elder care attorneys note that seniors who have put their faith in those they have chosen to help guide their financial and healthcare decisions may then be embarrassed to question the caregiver's actions, motives or integrity. Sometimes aging parents may not want to cause a riff in the family or ever think that a child of theirs or a trusted friend could possibly betray their best interests. But this is exactly when elder care legal help may be necessary-- perhaps even an elder care lawsuit. And, it's the children of aging parents who will need to bring forward a legal complaint--they will need to be their parent's advocate.

Family members may exploit relatives for a number of reasons. Relatives looking toward an inheritance may try to take what they believe is "rightfully" theirs. Or, they may fear that an extended illness will use up the elder's savings, thereby depriving the abuser of an inheritance. Some family members may want to prevent other relatives from getting any of the elder's assets. And in some cases, a family member may have a substance abuse, gambling, or financial problem.

Professional service providers, ranging from financial planners, estate lawyers or even the local handyman may exploit older customers. They might overcharge for services, or even fraudulently transfer funds or accounts without the elder victim's knowledge. Door-to-door handymen may swindle the senior into having work done and receive payment for the work without following through on it. Medical professionals may commit Medicare or Medicaid fraud by charging for services never performed or by overbilling.

Caregivers may try to seek employment as helpers to gain access to an elder’s financial documents--all the while professing how much they care for and admire the elder victim. They aim to gain the elder's trust. They may even target victims who appear to be isolated and some have been known to check the obituaries in order to find their next prey--widows and widowers.

There are a variety of forms of financial elder abuse. Some are perpetrated by people who do not know the victim, such as telemarketing fraud or identity theft. However, some forms of abuse are carried out by family members or caregivers. In some cases, the abuse is as complex as a child convincing a parent to put property in his or her name so that, when the parent dies, the child owns the property outright (to the detriment of other siblings), or convincing an elderly person to buy something they cannot use, such as convincing an elderly person to buy a lifetime membership in a gym. In other cases, it is as simple as stealing money from the senior's wallet when he or she is not looking.

For elderly people who have fallen victim to financial elder abuse, a lawsuit can provide a variety of remedies. First, the victim can recover money the taken or can recover property itself, such as when a valuable item is taken. Second, victims can recover attorney's fees because the statute protecting elderly citizens provides for attorney's fees in a lawsuit. Third, although rare, victims may be able to recover punitive damages.

It is uncommon for an elderly victim to expose the abuse or approach a lawyer for help. Usually, that falls to family members who become suspicious that their loved one has been cheated or a friend who notices unusual behavior.

Seniors in California could become victims of a number of scams and schemes designed to swindle the senior out of his or her money or property. Among the schemes and scams:

Telephone/email scams: the senior is contacted by someone requesting money in the form of deposit or upfront tax payment on money to be given to the senior later. The senior pays the deposit but never receives the money. These scams are sometimes referred to as lottery scams.

Pigeon drop: the senior is approached by someone claiming to have a lot of money but unsure of what to do with it. The scammer agrees to leave the money with the senior in exchange for a "good faith" deposit of money. The scammer leaves with the money and the senior is left with fake money.

Investment scams: the senior is convinced to invest his or her money in a variety of scams and schemes including a Ponzi scheme, pyramid scheme or fake real estate investment.

Sweetheart swindle: the senior is befriended by a perpetrator who agrees to either marry or take care of the senior. The perpetrator, who says he or she will be receiving a large amount of money soon, then claims to require money for a family emergency and asks for a loan from the senior to be paid back once the scammer's own money comes through.

Imposters: the senior is approached by people who appear to be employees of a utility company and who say they need access to the home. Once they obtain access, the perpetrators steal the senior's property.

Other scams targeting seniors include funeral and cemetery fraud, in which funeral homes add unnecessary charges and fees to a funeral; fraudulent anti-aging products, seniors are sold fake anti-aging products and reverse mortgage scams, in which scammers steal equity from a senior or use the senior to steal equity from another property.

 

Every state has at least one toll-free number—either an elder abuse hotline or helpline—that people can call to report elder abuse. California has Civil and Civil - Private laws developed from the Elder Abuse Act, which provides remedies for elders who have been financially abused.

 

If you live in California and you believe you or a loved one has been a victim of financial elder abuse, please contact Call (844) HLF-4LAW or email thehoffmanlawfirm@outlook.com to make an appointment for a free consultation and to evaluate your claim at no cost or obligation.

 

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Nathan B. Hoffman, AV-Preeminent

Estate & Trust, Elder Law, Real Estate/Construction and Business Litigation