Posts Tagged ‘Financial abuse’

Coastal Senior is a monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

Many people make big mistakes titling bank and investment accounts. Often advisors and bankers are the source of the advice to “put your child’s name on the account”. However, the results of jointly holding an account with another can be surprising and unpleasant.

The advice has likely been given with the best of intentions – which does not make it correct. The reason is usually convenience. An older person may feel better knowing that a trusted son or daughter has immediate access to an account “in case something happens”.

A better way to provide emergency access to financial holdings for a trusted person exists. Read on. First, here is why a “joint account” may not be the proper approach:

• Mom has likely made daughter a co-owner of the account. Daughter now owns the account as much as Mom. Could be bad. What if daughter is sued? What if daughter gets into a messy divorce? Or the IRS takes a keen interest in her affairs?
• If Mom dies Sis’s two brothers may be out of luck. Happens all the time. Mom wanted the kids to share equally, but Sis suddenly recalls Mom wanted her to have the accounts since she “was the one who always helped Mom”. Since Sis was a co-owner and likely had “survivorship” rights, she owns the account now – and there is nothing an attorney can do about it.

• Yech.

What is the best approach? A properly drafted power of attorney.

A “power of attorney” has nothing to do with appointing lawyers. The word “attorney” has its roots in an old French Norman word for “legal substitute”. A “power of attorney” is simply a document signed by someone called the “principal” (that is, YOU) appointing an “attorney-in-fact” or “agent” to manage some or all of the principal’s financial and business affairs.

The terms of the power of attorney control what the agent may, or may not, do. If the document covers a broad spectrum of duties, then it is a “general” power of attorney. An Agent can be given very broad powers, and if that makes the Principal nervous the instrument can require the Agent to secure some other person’s permission.

It used to be that a power of attorney would lapse when the Principal became incapacitated. That did not do any good if what was intended was to cover the situations when the principal did become incapacitated. The law stepped in and provided that a power of attorney could be “durable” (or be valid after the incapacity of the principal). Most powers of attorney now are “durable”.

Here’s the point: Don’t put the kids on the accounts as a joint owner. Instead, execute a power of attorney that grants the sorts of powers to the kids you are comfortable with to take over business affairs when, and if, they need to. In the meantime, keep the accounts in your name.

Downside: Some fees to a lawyer. Upside: Avoid a train wreck.

Coastal Senior is a monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

Here is yet another use for duct tape: Keeping an older resident from becoming such a bother. That is actually what an area nursing home did several years ago to keep a demented and unruly resident from getting underfoot. There was more we won’t get into here.

At the time, the only recourse was a misdemeanor charge. The investigation was not handled well by un-trained investigators. The only solid witness died. All the bad guys “walked”.

Chatham County senior advocates sprang to action. Adult Protective Services, the Long Term Care Ombudsman, Senior Citizens, Inc. (and perhaps others) went to then-District Attorney Spencer Lawton. He was appalled.

Soon the Chatham County Commission got on board and funded a dedicated position at the Chatham County DA’s office to investigate and prosecute elder abuse cases. Lawton assigned Assistant District Attorney Meg Heap to the position. After a period of re-tooling at the National College of District Attorneys, she went into action.

I have had an opportunity to work with Heap, and I am impressed with the operation. I practice in another state and have had to beg prosecutors busy with “Big Crimes” to glance at elder abuse cases.

I was surprised when the Savannah-Chatham police began investigating the caregiver of a client of mine who . . . well . . . began to care a bit too deeply about my client’s finances. My surprise gave way to utter amazement when I received a telephone call from Meg Heap looking for additional information. “What! A prosecutor!?”

Soon a senior trial lawyer in the office was involved. Impressive experts were summoned. I couldn’t believe it.

I used to say that one of the few examples of good government was the United States Marine Corps. I’ll add the Elder Abuse Prosecutions Office of the Chatham County District Attorney. Chatham County voters should make sure that both District Attorney Larry Chisholm and the Chatham County Commission know how valuable this program is. As things stand now, my hat is off to them all.

Government budgets are tight. But as finances tighten up for everyone, the less savory in our lot will be tempted to “go for the easy pickin’s”. The concentration of wealth in the hands of seniors is staggering. A clever caregiver who provides companionship to a lonely or ignored senior can easily strip the finances away. Most police, used to dealing with “real bad guys”, do not have the training an expertise to deal with financial abuse. Training is needed and government can do more. We’re talking citizen protection (not to mention a few additional police officers stimulating the economy). There is law enforcement money in the Great Stimulus Bill of 2009 . . . I hope some of it filters down to the coast.

In the meantime, families, stay involved. Be alert. Use common sense. If you suspect elder abuse (physical or financial) call the police, Adult Protective Services (912- 651-2216) or Meg Heap at the Chatham County DA’s Office (912-652-7308).

Coastal Senior is a Georgia monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

Elder abuse comes in many forms. Physical, emotional and sexual abuse immediately come to mind. So do neglect or abandonment. They’re all too common and sad. They’re also illegal.

So is financial abuse.

Because financial abuse is becoming more common, and may become more common with a deteriorating economy, this will be the first of a two part look at the issue.

Elder abuse occurs more in private homes than in nursing homes, and it is usually subtle. Exploitation can pass unnoticed for a long time and doesn’t have any overt signs like physical abuse.

Warning Signs

Exploitation can pass unnoticed for a long time and can be quite subtle. Family, friends, therapists, bankers and counselors (including lawyers) should look for:

• Sudden changes in behavior – of either the possible victim or the suspected exploiter.

• Someone continuously “running interference” for the victim.

• Complaints from the victim that someone is taking advantage of him or her.

• A close relationship with someone new in the victim’s life. For example, a sales person calls to “say hello” everyday. Or, an unusual person drops by every day to give the victim a ride to the bank (suspicious bankers have thwarted their share of abusive cases by alerting management).

• A sudden infatuation – perhaps a female caregiver has suggested a romantic relationship with Dad.

• Perhaps a daughter who hasn’t been seen in years appears without invitation, and shows a strong interest in the victim’s money or possessions.

• Mom’s home environment changes drastically; favorite possessions start disappearing; Mom is short on food, medicine or heat although she has sufficient funds to pay for them; her house looks neglected although she has money for repairs.

• Alternatively, the victim is getting more home services than are necessary, or someone convinces her to make unnecessary, costly home repairs.

And the list goes on. The important thing is not to ignore the problem. Mom (or Dad or the Customer or the Neighbor) deserves better.

Why?

Greed. An elderly person can have assets, be vulnerable, lonely, insecure. . . and very easy to isolate. And, of course, what goes on in the home is tough to spot.
More subtle, however, and perhaps more troubling, is the caregiver with a sense of entitlement (and an inflated sense of their own worth as a caregiver). Long nurtured resentment and anger driving the exploitation (after all, exploitation can be “great revenge”).

What Can Be Done?

Victims are reluctant to report abuse or ask for help. Also, it can be hard for an outsider to know that it is happening; family members, neighbors, friends, clergy need to be on their toes. Communication is key, both with the elder and with other family members.

Ask! If you don’t like the answers you are getting and continue to “feel funny” look for help. If you are not sure what to do, read next month’s column for some practical steps to take.