Elder financial abuse is the taking or assisting in taking an elder’s property for wrongful use or with the intent to defraud or by undue influence. Unfortunately, as the population of seniors continues to grow, there has been a corresponding increase in elder financial abuse. The perpetrators can be predatory friends, relatives, neighbors, caregivers or scam artists. Elder financial abuse is devastating to its victims and is frequently unreported or underreported.
As set forth in my article Undue Influence Defined: New Statutory Definition and Recent Case Law, undue influence is a particularly insidious form of financial elder abuse. Significantly, undue influence doesn’t necessarily go hand in hand with lack of mental capacity; one can be unduly influenced while still retaining capacity. The vulnerability of the victim is central to undue influence, as well as the apparent authority of the influencer and the use of manipulation.
Many elders do not have significant cognitive impairment, yet are still highly susceptible to undue influence and being taken advantage of by someone they trust. Some common examples of undue influence are when a family member, friend or caregiver convinces an elderly adult to change a trust or will in his/her favor or when a financial power of attorney mishandles the financial affairs of a senior, taking assets out of the elder’s estate and putting them in the individual’s own name.
Attorneys need to determine if their clients are free of undue influence in matters such as powers of attorney, trusts, wills, testamentary gifts and validity of deeds, all of which, when contested, may involve allegations of undue influence. These should be important considerations for both litigation attorneys and drafting attorneys.
As a financial elder abuse attorney with significant expertise, I have successfully taken legal action in many such cases to both stop the abuse and obtain recovery.
I also currently serve as the Chair of the Board of Directors of the Contra Costa County Bar Association Elder Law Section.