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Elder Abuse: Protect Your Loved Ones From Financial Exploitation

March 24, 2014/in Estate Planning, Probate /by Michael Lonich

Financial exploitation of the elderly is a growing – and mostly silent – epidemic in our country. In fact, one study estimates the amount lost by exploited seniors to be nearly $5 billion every year. One prime example occurred in 2007, when renowned New York society queen and philanthropist Brooke Astor left behind a coveted estate of nearly $200 million dollars. Though her will appeared to be adequately in place, the three codicils that followed turned out to be anything but.

Under Astor’s will, her only son, Marshall, stood to take tens of millions of dollars – with the condition that remaining funds after his death be given to charity. Marshall, however, had other plans, and the country watched as the truth behind Ms. Astor’s will began to unravel: Marshall, along with his lawyer, had convinced the elderly Astor – while she was suffering from dementia – to sign a series of codicils allowing him to leave much of her fortune to whomever he wanted. Rumor has it that Marshall wanted to share his mother’s fortune with his much-younger wife – whom Astor reportedly detested.

Fast forward to 2009 after 6 months of trial and many millions of dollars later, Marshall (then 85-years-old) and his attorney were convicted of 14 counts out of 16 for financially exploiting Astor. But after 8 weeks in jail, Marshall was out – the parole board found his age, ailing health, and hundreds of support letters from some of New York’s most influential people compelling and released him. With these turn of events, Marshall’s financial exploitation of his mother (to the tune of tens of millions of dollars) essentially went unpunished.

The highly-publicized financial exploitation of Ms. Astor is only one of the millions of cases of financial elder abuse that goes on quietly behind closed doors each year. When a family member manipulates a person with dementia, it is undue influence. California Civil Code § 1575 explains that undue influence comprises of:

  • The use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
  • The taking of an unfair advantage of another’s weakness of mind; or
  • The taking of a grossly oppressive and unfair advantage of another’s necessities or distress.

Financial abuse of an elder or dependent adult can occur through various ways – undue influence is only one of them.* Sadly, many greedy individuals will find their elderly family members to be easy targets for financial gain, particularly when the elderly individual’s mind is stricken with a degenerative disease like Alzheimer’s or dementia. The undercover coercion and undue influence to change an estate plan can be hard to notice because these manipulative acts are generally covert and completed with no witnesses around. Even if the coercion is discovered in time, proving it in court can often be an uphill battle.

If you or your loved ones are in the planning stages of creating an estate plan, take the necessary steps to ensure that you and your family members are protected by having an experienced, knowledgeable estate planning attorney guide you through the process. If you suspect undue influence, consult an experienced estate planning attorney for an objective assessment to ensure the decedent’s assets are distributed as they intended. Estate planning laws are constantly evolving and having a trusted estate planning attorney by your side can prove to be invaluable. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex estate planning matters, including wills and living trusts, and we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

* California Welfare and Institutions Code §15610.30(a).

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2014-03-24 15:26:552021-12-22 21:08:35Elder Abuse: Protect Your Loved Ones From Financial Exploitation

Predatory Unions: Protect yourself and Protect Your Family

July 8, 2011/in Estate Planning /by Michael Lonich

The elderly are a vulnerable population.  The wealthy elderly, however, are even more at risk.  It is not uncommon to hear horror stories of an elderly parent who marries their caretaker only to have their life savings steadily funneled to unknown sources, discovered only by family members after the death of the elderly.  As baby boomers head into retirement, these “predatory unions” are on the rise, as highlighted recently in the Wall Street Journal.

Financial abuse is the theft or embezzlement of money or any other property from an elder.  It can be as simple as taking money from a wallet and as complex as manipulating a victim into turning over property to an abuser.  In the blink of an eye, an elderly parent may be left unable to provide for their own needs while children and family members may be left without an inheritance.

The most difficult challenge for the children of these elderly is objecting to the property consequences of a parent getting married once that parent dies.  In most states, the inheritance rights of widows and widowers trump any estate plan—even if the new spouse wasn’t named in the will, and even if the marriage took place shortly before the death of someone unable to recall the union a few days later.  In California, the inheritance rights of widows and widowers are substantial but not as extreme as those previously mentioned.  The surviving spouse may receive up to one-half of the decedent’s community property, quasi-community property and separate property.

Estate planning, however, can still be a strong deterrent to elder financial abuse if drafted properly.  Estate planning devices may include wills, trusts, powers of attorney, advance health care directives and joint tenancies.  Children whose parents put their assets in a trust have a stronger line of defense when the parent marries late in life.  Irrevocable trusts cannot be unwound during the parent’s life time, however, if a revocable trust is in place, the paid caregiver should not know about it.

If you are interested in learning how to better protect your own or loved one’s assets, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2011-07-08 09:35:222021-12-22 21:37:49Predatory Unions: Protect yourself and Protect Your Family
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Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.

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