Elder Financial Abuse: Key Elements to Combat Financial Abuse

ELDER FINANCIAL ABUSE - Seven Key Elements to Combat Financial Abuse
Posted on July 10, 2008

Elder financial abuse has existed for as long as elders have owned property and money. This article will discuss seven key elements to identify and combat elder financial abuse, and to recover what was wrongfully taken.

Key # 1: Age
In California, an “elder” is defined as someone 65 years of age or older. Age is an important factor because an “elder” is entitled to the remedies provided under the Elder Abuse and Dependent Adult Civil Protection Act, known as “EADACPA”.

Key # 2: Mental Capacity
Probate Code 811 provides a list of mental categories that a psychologist or medical doctor can use to assess an elder’s mental capacity. When you read this statute, you might think that you’d need a Master’s Degree in order to pass this “test”. It covers such assessments as logical thinking, analytical ability, and memory. However, a poor score in any one category does not warrant a determination that the elder lacks sufficient mental capacity.

Key # 3: Identifying Elder Financial Abuse — Undue Influence
First of all, not all “influence” is undue. A wife of 40 years certainly “influences” her husband, and vice versa. There is nothing inherently wrong with this type of influence.
The type of influence that is “undue” takes place when one person takes advantage of another’s weaker state of mind. There are statutes and numerous cases that provide both definitions and factual backgrounds to illustrate various scenarios when such undue influence was used to manipulate and coerce an elder into unknowingly parting with their property and money.

Key # 4: Combating Elder Financial Abuse — EADACPA
The EADACPA statutes, under the Welfare & Institutions Code, provide nearly every remedy under the sun. Interestingly, EADACPA was enacted to provide an incentive for lawyers to take on elder abuse cases.

Key # 5: Common types of elder financial abuse
Elder abuse occurs in a myriad of ways. Somewhat ironically, the majority of perpetrators are the ones to whom the elder often devoted his/her life to: their children.
Financial powers of attorney are a classic form of financial abuse. Given this document, the “agent” can perform any financial transaction that the elder could, including mortgaging or selling the home and withdrawing money from bank accounts. Placed into the wrong hands, this document can become a “license to steal”.

Key # 6: Civil and Criminal Litigation

Key # 7: Recovery of property & money

Abridged
SOURCE: Legal News Relately
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