elder exploitation

A Good Estate Plan Can Reduce Elder Exploitation

Financial elder exploitation has been called “the crime of the 21st Century” with one study suggesting that older Americans lost at least $2.9 billion to financial exploitation in 2010 by a broad spectrum of perpetrators, including persons they know and trust, as well as strangers.  Cognitive impairment diminishes the ability of some older adults to make financial decisions and to detect frauds and scams.

Elder exploitation cases tend to be complex and can be difficult to investigate and prosecute.  Elders can lose their life savings and can have little to no opportunity to gain them back, which means they may receive inadequate health care as they age and they may lose the ability to live independently due to lack of funds.  Medicaid, which is our social safety net for health care, is not very good at paying for care at home as we age.

Financial exploitation is the fraudulent or otherwise illegal, unauthorized, or improper action by a caregiver, fiduciary, or other individual in which the resources of an older person are used by another for personal profit or gain; or actions that result in depriving an older person of the benefits, resources, belongings, or assets to which they are entitled.  To summarize, Florida law says that the elements necessary to establish that an elder or disabled person has been subject to exploitation are:

  • The victim was a vulnerable adult;
  • The defendant wrongfully appropriated the victim’s property; and
  • The defendant knew, or should have known, of the wrongful nature of its conduct.

While each situation is different, here are some common ways the elder exploitation happens:

  • Exploitation by an agent under a power of attorney or person in another type of fiduciary relationship
  • Theft of money or property, often by a family member, caregiver or in-home helper
  • Investment fraud and scams, including deceptive “free lunch seminars” selling unnecessary or fraudulent financial services or products
  • Lottery and sweepstakes scams
  • Grandparent/imposter scams
  • Tax and debt collection scams
  • Scams by telemarketers, mail offers or door-to-door salespersons
  • Computer and Internet scams
  • Contractor fraud and home improvement scams

One of the main things you can do is to create an estate plan and prepare for your incapacity.  Creating your estate plan generally means planning for your death and your incapacity.  Estate planning generally starts out with:

  • Your will, which provides where your assets should go after your death.  The will also nominates someone to act as Personal Representative, to carry out your last wishes.
  • A Revocable Living Trust, which can help protect you from exploitation as it is generally harder for strangers to access your trust account over assets in your own name.  While living trust planning is generally good state planning as assets in the trust avoid probate upon your death, assets in your trust also provide a line of protection against would-be exploiters as the assets are owned by your trust, not individually.
  • Creating a Durable Power of Attorney.  This is a very important document at it names the right person to help make your financial and legal decisions, even before you have lost capacity.
  • Advance Directive for Health Care which names in advance which trusted family member(s) your doctor can consult with when you no longer have capacity.  This can also name in advance whom you wish named as a guardian if one becomes necessary.

When creating your trust and power of attorney, you need to pick the right fiduciaries to help you.  Here are some tips on finding the right person to name as your successor Trustee, Agent under power of attorney, and Health Care Surrogate:

  • Trust, but verify.  Only appoint someone your really trust and make sure they know your wishes and preferences.  You can require in your DPOA that your agent regularly report to another person on the financial transactions he or she makes on your behalf
  • Avoid appointing a person who mismanages their own money or has problems with substance abuse or gambling.
  • Tell friends, family members, and financial advisers about your power of attorney so they can look out for you.  Ask your financial institution about its POA procedures.  The financial institution may have its own form that it wants you to complete.  But a POA that is valid under Florida law should be accepted by financial service providers.
  • Remember the POA designations are not written in stone.  You can change them from time to time.  If you decide that your agent is no longer the best person to handle your finances, you can revoke (cancel) your POA.  Notify your financial institution if you do this.
  • Avoid appointing hired caregivers or other paid helpers as your agent under a power of attorney.
  • Beware of someone who wants to help you out by handling your finances and be your new “best friend.”  If an offer of helps seems to be too good to be true, it probably is.

If you suspect that someone you know is being exploited, here are some steps you can take:

  • Call 800-962-2873-this is the Florida helpline that has people to help triage any issues- or go to the webpage (https://www.myflfamilies.com/service-programs/abuse-hotline/report-online.shtml)
  • Contact the Elder Abuse division of the Collier County Sheriff’s Office. 239-252-0230
  • Seek an elder exploitation injunction.
  • Seek an emergency temporary guardianship through a Florida attorney who practices in this field.

Call our office if you need us.  Elder Law is what we do.  We can help with estate planning, care coordination, guardianships, and asset protection planning.  Burzynski Elder Law 239-434-8557

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