Elder financial abuse is an unfortunate reality that happens too often. Some people will use their relationship with an elderly person to their own gain. If you believe that you have an elderly loved one that is the subject of elder financial abuse, you should call an attorney with experience in dealing with elder financial abuse.
Often, elder financial abuse is not as obvious to family members as physical abuse. Financial abuse is still a serious matter, however, and there are clues to look for to see if it is happening to your loved one. If the elderly person in your life has handed over control of his or her financial care to a family member in the form of a power of attorney, for example, there could be some major red flags to look for to see if there is elder financial abuse going on. One thing to look for is whether or not your loved one is still receiving the bank statements and know what is going on with his or her account. If it appears that you loved one does not know what is going on, while at the same time money or valuables are starting to go missing, it is time to take action.
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Remedies for Elder Financial Abuse
The surest way to fight elder financial abuse is to petition to be your loved one’s guardian. While no one wants to think about their mother, father or other loved one not being able to make decisions for themselves, this can be the best way to secure that loved one’s finances. Becoming a guardian is the best way to stop someone who is taking advantage of a loved one financially, even if they are using a power of attorney.
There are two main kinds of guardianship. One is guardianship over a person’s financial affairs, such as paying bills or managing financial accounts. Another type of guardianship would be over the person. This type of guardianship would mean the petitioner would be getting the ability to make health care decisions for the person who is subject to the guardianship. The courts aim towards giving a person the ability to make decisions on their own as much as possible. For example, this can mean that if your parent is not able to handle his or her financial affairs but still can make their own medical decisions, only decisions about financial issues can be made.
Through petitioning for guardianship with the assistance of a New York attorney, you can help your elder gain control over his or her money. The first step is to have an emergency guardian appointed so that accounts can be frozen. This will keep your brother or sister from gaining access to your loved one’s money while the guardianship proceedings are going on. Once a guardian is appointed, the accounts can be under the guardian’s control, meaning that it would not be possible for a financial abuser to take any more money. You can also petition for a full accounting if the suspected abuser has been given power of attorney over your relative. This way, there is a better chance that you will find out where your loved one stands financially.
Power of Attorney Elder Financial Abuse
A power of attorney gives a potential abuser the authority to make legal and financial decisions the elder. Using the power of attorney, the abuser will control the elder’s bank accounts, the purchase, management and sale of real estate, stock and bond transactions, retirement plans, investments and other assets.
When an elder signs a power of attorney, they are potentially exposing themselves to financial abuse, fraud, self-interest and embezzlement by a potential abuser. This is especially true where large sums of money and substantial assets are involved and readily accessible.
An abuser can leave the elder’s destitute and their estate and their heirs without any assets or inheritance. Abuse of power of attorney constitute state and/or federal crimes of embezzlement, theft, identity theft, fraud or forgery, and the representative can face the penalties of jail time and fines as well as civil litigation and restitution of funds and property to the elder and their estate and beneficiaries.
Examples of Power of Attorney Abuse
- Opening joint banks accounts and naming the representative as a beneficiary
- Purchasing life insurance policies and naming the representative as a beneficiary or changing existing life insurance account beneficiaries
- Purchasing real estate with estate money and transferring title of real estate for the benefit of the representative
- Unauthorized gifting to individuals and charities
- Theft of property
- Unauthorized use of credit cards or establishing credit under the abuser’s name
Remedies for Power of Attorney Abuse
A power of attorney is in effect until the elder dies unless there is an expiration limit or the elder revokes it at any time by giving written notice to the abuser.
The elder, usually with the help of their family, can challenge the power of attorney in court by suing the abuser directly on grounds that a fiduciary duty was breached, tortuous interference or other causes of action to get the embezzled funds or property returned to the elder or their estate and beneficiaries. These matters are complex, time-consuming and most people require the assistance of an experienced attorney.
If suspect elder financial abuse, speak to attorney Albert Goodwin. Call (212) 233-1233 or (718) 509-9774.