BY CHRISTOPHER J. AVENTURO
Here in Westchester County and throughout New York state, elder abuse is growing each year. For example, the Elder Abuse Bureau of the Westchester District Attorney”™s Office reported 198 elder abuse cases and investigations in 2011, compared to just 150 cases in 2010. But statistics alone can”™t capture the heart-wrenching situations that estate and guardianship litigators see every day.
While many of the cases I”™ve handled over the past 19 years involve elder abuse, one case provides the most poignant example of what can go wrong when the elderly and their loved ones don”™t take the right precautions as well as assistance that can be provided by legal intervention.
“Matter of Mr. M” involved an incapacitated man who tragically fell victim to a predator who tricked him into marriage. Following this alleged marriage, Mr. M”™s financial affairs fell into disarray, as his “wife” dissipated the bulk of his assets, eviction proceedings were commenced against him and Mr. M”™s health declined to the point that he was near death.
We took the following steps to restore Mr. M”™s safety and well-being: commenced an Article 81 Guardianship Proceeding, resulting in the appointment of a long-time family friend to serve as guardian of Mr. M”™s personal and property needs; obtained injunctive relief within the eviction proceeding; commenced separate proceedings resulting in court approval of a Supplemental Needs Trust for Mr. M”™s benefit, allowing for his retroactive acceptance by Medicaid; and commenced a proceeding resulting in the annulment of his alleged marriage to the predator, who was ultimately incarcerated.
Fortunately, Mr. M. is presently safe and healthy. However, his case serves as an example of the vulnerability of the elderly and infirm.
Many other cases end much more tragically for the victims, far from the public spotlight. The vulnerable victims avoid coming forward, fearing retaliation or even abandonment by those abusers upon whom they depend. Unfortunately, the civil remedies available through our courts, including the discovery and turnover of assets once misappropriation is uncovered, are often a costly, time-consuming and lengthy uphill climb. In most cases, the assets have been spent or further shifted by the transferee long before trial or commencement of a proceeding.
Litigation often reveals the steps that might have averted problems, however. Some proven, practical and preventative measures for empowering and protecting our seniors against many forms of elder abuse follow.
Guarding Against Fraud: Planning and Precautions in Three Areas
1. Monitoring
Family and loved ones can be proactive and helpful through:
Ӣ Regular and consistent monitoring of assets, account statements, and important documents. This process is essential to preventing the exercise of fraud and undue influence upon an elderly or infirm relative;
Ӣ First-hand review of mail, recent correspondence and recently updated documents, when undertaken with the loved oneӪs approval;
Ӣ Enlisting the assistance of a trusted local friend or neighbor to help monitor the above information, when family members do not live close to one another; and
Ӣ Monitoring asset and account activity by computer (a good idea for those living in different states).
To put these safeguards into effect, family members and friends may need to have frank conversations with the elderly. Besides your attorney, social service agencies and resources can step in and help facilitate these arrangements if needed. Many free resources are available to Westchester residents.
2. Updating Powers of Attorney
Often in cases of financial abuse, the perpetrator procures the elderly person”™s signature of a financial power of attorney, giving the agent apparent authority to withdraw funds from bank accounts and perform related financial transactions. Nevertheless, safeguards are available.
Ӣ Under a financial power of attorney there remains a legal duty to keep accurate financial records and the document can be tailored to limit the agentӪs authority.
Ӣ One may designate two or more persons to act as co-agents.
Health care powers of attorney also represent a potential source of abuse. These are designed to ensure that one”™s health care wishes are respected when one cannot make or communicate those decisions. Over time, multiple health care directives may be prepared, creating a situation where several different persons may be convinced that each has sole authority to make decisions, even though only one health care agent can act at one time in New York state. These documents should be organized and in some cases earlier directives revoked, in order to prevent future conflicts.
3. Protecting the Integrity of Will or Trust Documents
The will crafted at age 65 may not be appropriate to someone 20 years later. Named beneficiaries may have died; charitable interests may have changed. Valued relationships may have waned; new ones may have formed. Preparing a new will also affords an excellent opportunity to take a comprehensive inventory of one”™s assets well in advance of any crisis or harm and to account for the changes. The process may motivate potential heirs to take responsible steps cooperatively towards asset preservation and protection.
Believe it or not, some elderly persons with significant financial assets have not prepared a will at all. This can result in unfortunate conflicts following death. Even worse is the execution of a will when the elderly person is of questionable mental capacity. Instead, it is best to update these documents every few years to reflect changing needs and circumstances.
The adage that “an ounce of prevention is worth a pound of cure” is never truer than in the field of elder law because in most cases, elder financial abuse is preventable.
Christopher J. Aventuro, a partner with Keane & Beane P.C. in White Plains, concentrates his practice in complex estate and guardianship litigation. He can be reached at caventuro@kblaw.com.
