|
|
|
FJP
Elder Law: Re-title of Assets May Be a Problem
Many elder law cases occur
after a person loses their mental capacity as a result of old age. It’s
not uncommon for businesses to persuade impaired elders to enter into unsavory
contracts or a relative seeks to be appointed guardian for a person with
dementia or diminishing health. The end result could be financial
exploitation or a misappropriation of funds. In one example, (names and
events have been changed to protect confidentiality) Mr. Smith—a retired factory
worker who developed dementia—decided, along with his adult children, that the
eldest daughter Ellen should help with his finances. Ellen’s first move:
taking her father to her lawyer to sign a power of attorney. Her second
move: changing his bank accounts to add her name as
Joint Tenant with Right of Survivorship. As the JTROS, Ellen would be
the only person with access to the bank accounts after her father died. In fact, when Mr. Smith
passed away, Ellen received more than $100,000 from the bank accounts,
everything her parents had accumulated over the years. But, in Mr. Smith’s
will, he left everything in equal shares to his seven children. In this
instance, an important question arose: When Smith’s daughter Ellen took him to
change his bank accounts, did he realize and have the capacity to know the
importance of the “joint tenant with right of survivorship?” The attorney
for the 6 other siblings didn’t think so. Since Ellen refused to cooperate
or turn over all of her father’s property, suit was filed against Ellen alleging
breach of
fiduciary duty, requesting that the court to impose a
constructive trust on the funds and property under Ellen’s control.
Unfortunately this scenario is not an isolated one. There are also many
instances where the elderly person is stripped of their assets during their
lifetime which often leaves them unable to afford the care they desperately
need. The important lesson here is to seek competent legal advice early in
the process of planning for the elderly. Include family members in the
process and do not rely on delegating all decisions to one individual.
However, you should act quickly if it appears that a family member or a trusted
friend or neighbor has taken advantage of an elderly person. It is
important to obtain experienced counsel who may assist you in recovering,
securing and protecting the elderly person and that person’s assets. |
|