Living Will Attorney

Elder financial abuse and occurs in many forms. Improper use of financial powers of attorney, trickery, manipulation, coercion and undue influence are just some of the ways that bad guys take advantage of the elderly.

Diminished mental capacity. As the aging process unfolds, elderly people often begin to experience long and short-term memory loss. This can eventually progress to a diagnosis of some form of dementia or Alzheimer’s Disease. Too often, proper medical evaluation is not performed and the symptoms go unnoticed, particularly when the elder is isolated with little or no contact from friends or relatives.

Loneliness. Once a widow, or widower, is no longer able to drive, then their ability to leave their home and socialize with others is greatly restricted. They are psychologically in need of human contact and are often left vulnerable to telemarketers and others who see the elder as “financial prey”.
Isolation. Diminished mental capacity and loneliness lead to a sense of isolation. These combined factors render the elder susceptible to undue influence and manipulation. They can easily be lied to, tricked and manipulated into signing documents that transfer ownership of their property or money to a perpetrator. Often, the elder will sign a document and almost immediately forget that the incident occurred.

Often, neighbors and friends are reluctant to get involved when they suspect that an elderly person is being subjected to financial abuse. Most financial abuse is committed by the elder’s son or daughter, and an outsider often feels that s/he will be subjected to harassment or threats for interfering in “family business”.

However, anonymous tips from these outsiders can be given to governmental entities without exposing the party who reports the abuse.

Fortunately, there are ways to prevent such financial abuse once it has been recognized as occurring.
Most states have a governmental entity whose sole purpose is to investigate cases in which an elder is unable to properly handle finances or make sound health care decisions. These agencies, such as Adult Protective Services, will generally send a worker to the elder’s home to conduct an interview, observe the living conditions, and then report to another agency, such as the Public Guardians Office, on whether any outside assistance is required. Adult Protective Services does not have authority to intervene in legal matters; however, it can make referrals to agencies such as the District Attorney’s Office when financial abuse is suspected.

Your local county District Attorney’s Office does have the authority to prosecute cases of elder financial abuse. Normally, an initial report would have been made to the local police department, who then refers it to the District Attorney. A District Attorney investigator is generally assigned to review the facts and evidence and to make a recommendation. If it is determined that enough evidence exists to prove a claim of elder financial abuse, then a criminal complaint can be filed against the perpetrator.

Additionally, elder law attorneys can get involved to file civil lawsuits to stop any further abuse and to recover money and property that has been wrongfully taken.

Recognizing elder financial abuse is the first step. Reporting such abuse to the entities above - mentioned is the next step in preventing such heinous activity.

A power of attorney for healthcare decision making is a valuable tool that grants someone the authority to make medical decisions for you if you are incapacitated and unable to make those decisions.

Most states have forms that can easily be filled-out. Many states, like California, require that the power of attorney be signed by you and two witnesses, or signed by you before a notary public.

In this document, you have the opportunity to give many instructions, including whether you wish to be buried or cremated, whether you want to donate body parts for research or education, and whether you want heroic measures to be made to keep you alive - even though your medical doctors have determined that you have no brain activity and will never recover.

Unpleasant decisions, but this document relieves your loved ones from the emotional burden of having to make those decisions by themselves. When named as your agent (a trusted family member or friend) under the power of attorney, their task is to simply carry out your written instructions.

Of course, it is impossible to write out instructions for every type of medical decision that may become necessary. No one has a crystal ball to anticipate what options will be given by your doctors to address every type of disease or injury that may need to be addressed in the future. Therefore, many powers of attorney will give instructions that decisions are to be made in accordance with what your agent believes you would have wanted and, if unknown, then such decisions should be made in your best interests.

It is very important that you talk with your agent and inform them that you wish to name them as the person who will have authority to make medical decisions if you are incapacitated. It would be quite unnerving if they first learned of this by receiving a phone call at two in the morning from a hospital, and were being asked to make a medical decision regarding you. A copy of your power of attorney should be given to your selected agent.

It is also important that your doctors, and hospital (if you have a file or chart there) also receive a copy of your healthcare power of attorney. Without a copy, they are unable to contact your agent for instruction regarding your medical care.

It is not always necessary to have an attorney prepare the power of attorney for you. Many forms are relatively self-explanatory. However, an elder law attorney can be helpful by explaining the law, asking important questions regarding your wishes, and making sure that the document is properly executed. Remember: an improperly prepared document is useless and defeats your ability to make healthcare decisions in advance.

A properly prepared power of attorney for healthcare decision making is a valuable tool to ensure that your medical wishes are carried out if you become incapacitated, and relieves your loved ones from having to make those difficult choices if the need arises.

Powers of attorney for healthcare decision making are a valuable tool to ensure that your medical wishes are carried out if you become incapacitated and unable to express your desires. However, these powers can be abused and cost you dearly - in terms of your personal well-being and even your finances.

Here’s a real life story to illustrate:

Dad is 80 years old and suffers from dementia. While mentally incapacitated, his son manipulates Dad into signing powers of attorney for both finances and for healthcare.

Dad has enough money in various investments and bank accounts to pay for in-home caregiving services. These services are very expensive, but he, like most elderly individuals, would prefer to remain at home in a familiar and comfortable environment. If Dad was mentally capable of deciding where he would live and whether his savings should be used for his care, then he certainly would choose to remain at home.

Unfortunately, his son has different ideas. He views Dad as a cash cow, and sees no reason why Dad’s money should be used for in-home care and deplete son’s inheritance.

Therefore, son uses the power of attorney for healthcare (referred to as an Advance Health Care Directive in California) to have Dad permanently placed in a nursing home. Son also speaks with the nursing staff, and convinces them that Dad’s other children intend to harm him, and that no one is to have any access or communication with Dad, unless son authorizes it.

Isolation is a key element in elder financial abuse. In order for son to carry out his plan, he must make sure that all outside contact with Dad is halted; otherwise, a family member or friend could visit Dad, ask questions of the nursing staff, and uncover son’s devious plot of exploitation.

Now that Dad has been warehoused in a nursing home (via the healthcare power of attorney), son has free rein to use the financial power of attorney to access all of Dad’s monies. Son can close accounts, open new accounts in son’s name only, and transfer all of Dad’s monies. Soon, Dad is broke and the nursing home bills will be paid for by the state.

Sounds incredible, but this is a true story. Fortunately, some help is available, but it requires someone to recognize that abuse is taking place and then step up to the plate and intervene.

In California, for example, nursing home personnel are mandated reporters. This means that the law requires that they report, to law enforcement or Adult Protective Services, any reasonable suspicion that elder abuse is occurring. The tip can be anonymous. Adult Protective Services would then interview Dad, the nursing staff, and son, and determine whether abuse is taking place and whether the matter needs to be referred to law enforcement.

An elder law attorney can also assist with civil litigation to freeze Dad’s accounts, recover the monies wrongfully taken, and return Dad to his home with in-home health care assistance; provided, however, that son has not already spent most of Dad’s money.

While a power of attorney for healthcare is an important tool, it can also be abused if placed into the hands of an unscrupulous person.