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.
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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.