Category: Fraud and Abuse (Page 1 of 3)

Fool Me Once, Shame on You. Fool Me Twice…

April 24, 2025 / David Russell

Family disputes over inheritance can be messy, emotional, and, as demonstrated in the California Court of Appeal case LINTZ v LINTZ, costly. This case serves as a cautionary tale, highlighting the importance of clear communication, professional advice, and understanding the concept of undue influence when it comes to estate planning. While we won’t delve into legal advice, let’s explore some of the missteps made and how families can potentially avoid similar situations.

The Case Overview

In Lintz v. Lintz, the central figures are Robert, a real estate developer worth millions, his third wife, Lois, and his children, Susan and James, from his second marriage. Interestingly, Lois was also Robert’s first wife, albeit for a brief six-month period. Robert had a complicated estate plan established before remarrying Lois in 2005. After their remarriage, Robert amended his trust several times, increasingly favoring Lois. Eventually, a new trust, the Lintz Family Revocable Trust, was created. This trust designated all of Robert’s property as community property, gave Lois an exclusive life interest in the estate, and even allowed her to disinherit one of Robert’s children and leave any unspent assets to her own children. Critically, this trust was not prepared by Robert’s long-standing attorney, but by Lois’ attorney at her direction.

After Robert’s death, Susan and James challenged the trust, alleging financial elder abuse, breach of fiduciary duty, conversion, constructive trust, and undue influence. The court found Lois liable for financial elder abuse, breach of fiduciary duty, and conversion of separate property. While the court found Robert had the testamentary capacity to execute the trust instruments, it also found Lois liable for undue influence in procuring Robert’s estate plans.

Missteps and Missed Opportunities

Several factors contributed to the unfortunate outcome in this case. Let’s examine some key areas:

Lack of Transparency: The increasing shift of assets towards Lois, especially the designation of all property as community property, appears to have occurred without clear communication or understanding from all parties involved. Open discussions about estate planning decisions can help prevent misunderstandings and suspicions.
Sudden Changes in Estate Planning: The series of trust amendments that increasingly favored Lois, culminating in the Lintz Family Revocable Trust, should have raised red flags. While people are free to change their estate plans, drastic and frequent alterations, especially when influenced by a new relationship, warrant careful scrutiny.
Disregarding Professional Advice: The fact that Robert signed the Lintz Family Revocable Trust against the advice of his own counsel is a significant misstep. Seeking and heeding professional advice from experienced estate planning attorneys can help ensure that decisions are made with full understanding and are free from undue influence.
The “Community Property” Assumption: Designating all of Robert’s property as community property, especially given that he had significant assets before the marriage, is a complex legal issue. It’s crucial to understand the implications of community property laws and how they affect estate planning.
Attorney Conflict of Interest: The Lintz Family Revocable Trust was prepared by Lois’ attorney, not Robert’s. This raises serious questions about potential conflicts of interest and whether Robert received truly independent legal advice.
Isolation and Control: The court noted that Lois misinformed Robert’s lawyers of his wishes and ultimately discontinued their services under the pretext of a fee dispute. This suggests a level of control and isolation that can be indicative of undue influence.

Understanding Undue Influence

The concept of undue influence is central to this case. Undue influence, in the context of estate planning, refers to a situation where someone exerts pressure or control over another person, overcoming their free will and causing them to make decisions they wouldn’t otherwise make.

While direct evidence of undue influence is rare, courts often consider circumstantial evidence, such as:

The vulnerability of the person being influenced: Was Robert in a weakened state, either physically or emotionally, that made him susceptible to Lois’s influence?
The influencer’s opportunity to exert influence: Did Lois have close and constant contact with Robert, giving her ample opportunity to influence his decisions?
The influencer’s motive: Did Lois stand to benefit significantly from the changes to Robert’s estate plan?
Whether the result was unnatural: Were the changes to Robert’s estate plan inconsistent with his previous wishes or relationships with his children?

Legal Capacity vs. Undue Influence

It’s important to distinguish between legal capacity and undue influence. The court in Lintz v. Lintz found that Robert had the legal capacity to execute the trust documents. Legal capacity refers to a person’s ability to understand the nature and consequences of their actions. In estate planning, it means understanding that you are signing a will or trust, knowing what property you own, and understanding your relationship to the people who will inherit from you.

Even if someone has legal capacity, they can still be subject to undue influence. Undue influence is about how the decision was made, not whether the person understood the decision. It’s about whether their free will was overcome by someone else’s pressure or control.

Preventing Similar Situations

So, how can families prevent similar situations from arising? Here are some practical steps:

Open Communication: Encourage open and honest conversations about estate planning decisions.
Independent Legal Advice: Ensure that all parties involved have access to independent legal counsel.
Maintain Relationships: Encourage the person making estate planning decisions to maintain relationships with family and friends.
Document Everything: Keep detailed records of all estate planning decisions, including the reasons for those decisions.
Be Vigilant: Be aware of any sudden or drastic changes in estate planning, especially if they seem out of character.
Avoid Conflicts of Interest: Ensure that attorneys representing individuals in estate planning matters are free from conflicts of interest.

The Lintz v. Lintz case serves as a stark reminder of the importance of careful estate planning and the potential for family disputes when things go wrong. By fostering open communication, seeking professional advice, understanding the concepts of undue influence and legal capacity, and avoiding potential conflicts of interest, families can take steps to protect their loved ones and prevent similar unfortunate outcomes.

Little Red Riding Hood: A Cautionary Tale from a California Case.

April 17, 2025 / David Russell

[De Anda v. Guillen; California Court of Appeals, Second District, First Division, Decided Apr 21, 2023]

Imagine trusting a loved one, only to discover they’ve betrayed that trust by exploiting your finances. This is the heartbreaking reality one grandmother, Julianne De Anda [Substitute Name] faced when her granddaughter, “Lisa Guillon [Substitute Name], misappropriated a $375,000 construction loan meant for De Anda‘s home remodel, using it for personal expenses and a failing business. The De Anda v. Guillon case serves as a stark reminder of the vulnerabilities our aging loved ones face. By understanding the details of this case, we can better equip ourselves to identify potential issues and prevent similar situations from affecting our own families.

Key Findings and Preventative Measures

his case offers several key insights that can help families protect their aging loved ones from financial exploitation:

The Importance of Open Communication: In the De Anda case, the initial agreement seemed reasonable: housing and care in exchange for home improvements. However, the lack of clear, documented agreements and open communication paved the way for misunderstandings and abuse. The court noted that it was unclear to what extent the parties agreed that Guillon would be allowed to live in the home indefinitely, or that she would inherit the home entirely when De Anda died.

Preventative Measure: Encourage open and honest conversations about finances, living arrangements, and care plans. Regular family meetings can provide a platform for discussing concerns and making informed decisions together. Document all agreements in writing, with the assistance of legal counsel.
Be Wary of Joint Tenancy: Guillon persuaded De Anda that a joint tenancy was necessary for the loan. This highlights the danger of elders signing legal documents without fully understanding the implications. The court found that Guillon “persuaded” De Anda that she would not be able to obtain a loan to finance the Pasadena home remodel unless De Anda “deeded half the house to [Guillon] as joint tenants in common with the right of survivorship.”

Preventative Measure: Before signing any legal or financial document, especially those involving property, ensure your loved one seeks independent legal and financial advice. A neutral professional can explain the terms and potential risks. Emphasize that joint tenancy can have significant consequences, including loss of control over the property.
Monitor Finances: One of the most alarming aspects of this case was the misappropriation of funds. Guillon commingled the construction loan with her personal and business accounts, making it difficult to track. The court found that “Without any accounting, [Guillon] commingled construction money, Taco Factory money, her personal funds, [and] personal and business loans.”

Preventative Measure: If you are helping manage an elder’s finances, maintain meticulous records. Use separate accounts for specific purposes (e.g., a dedicated account for the remodel). Regularly review bank statements and credit card bills for any unusual activity. Set up alerts for large withdrawals or transfers.
Trust Your Instincts: De Anda’s children discovered the fraud when they noticed irregularities in her bank accounts and a forged document. This underscores the importance of paying attention to red flags. The court noted that De Anda’s ATM card was missing, as was over $200,000.

Preventative Measure: If something feels off, investigate. Don’t dismiss your concerns, even if the person involved is a family member. Trust your instincts and seek professional help if needed. Encourage other family members to stay involved and voice their concerns.
The Danger of Undue Influence: The court found that Guillon exerted undue influence over De Anda, leading her to make decisions that were not in her best interest. The court noted Guillon’s foreclosure, multiple debts, a prior judgment against her, and virtually no cash or assets other than the joint tenancy she had persuaded De Anda to grant her.

Preventative Measure: Be aware of situations where an elder is isolated or overly reliant on one individual. Encourage them to maintain social connections and seek advice from multiple sources. Watch for signs of manipulation or coercion.
Professional Oversight: The construction project in the De Anda case lacked proper oversight, which allowed Guillon to mismanage funds and leave the remodel incomplete. The court found that “two-thirds of the [remodel] loan money had been spent before building permits had been pulled.”

Preventative Measure: When undertaking significant projects like home renovations, involve reputable contractors and professionals. Obtain multiple bids, check references, and ensure contracts are clear and detailed. Consider hiring a project manager to oversee the work and finances.

Recognizing Financial Elder Abuse: Financial elder abuse often involves subtle manipulation and deception. It’s crucial to recognize the signs, which can include:

Sudden changes in financial habits
Unexplained withdrawals or transfers
Newfound isolation from family and friends
Unusual interest in the elder’s assets by a caregiver
Reluctance to discuss financial matters

The De Anda v. Guillon case serves as a stark reminder of the vulnerabilities our aging loved ones face. Not only did this separate a grandmother from her granddaughter, but the entire family was fractured by this event.

By learning from this unfortunate situation, we can take proactive steps to protect our elders from financial exploitation. Open communication, careful monitoring, and a healthy dose of skepticism can go a long way in safeguarding their personal and financial well-being.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult with a qualified legal professional for advice tailored to your specific situation.

When political values collide with Mom’s Need for Care: One Reader’s Crisis of Conscience.

March 10, 2025 / David Russell

"I find myself in a very conflicted position. I am 62 years old. I am a politically conservative person who has long believed that entitlement programs were a big part of this country's problems, and that Medicaid especially is responsible for creating a dependency on the government. Here's my situation: My 91 year old mother has depleted the savings that she and my dad worked to build, paying for care over the past five years. In five years, we have paid almost $400,000 between full-time sitters or nursing home care. Now she's out of money and the nursing home staff is telling me to apply for Medicaid for her. I could bring her home, but that would mean either me or my wife would have to quit our jobs or cut back on hours, and neither option is a good one. I can't afford to pay for her care out of my own pocket without severely impacting my own retirement, yet that's always been my belief - that families should take care of their own and not depend on the government. I'm in a real quandary as this goes directly against my beliefs, but I don't know what to do. I am an only child so there is no other family who can help."

Bill T.

First, you have my deepest respect for honestly confronting this clash of values that you have described. My personal opinion is that there may not be such a collision of values as you think. You seem to have taken personal responsibility for the care of your aging mother for the past five years, ensuring that the savings that your parents worked hard to accumulate have been used for her care in the best way possible. The fact that you feel conflicted about filing for Medicaid sounds less like a political view than a desire to continue that responsibility. You are certainly not alone as more aging parents from all political persuasions will likely need Medicaid’s assistance, and I want to gently challenge your belief that such programs only perpetuate government dependency.

Medicaid's Founding and Purpose

Medicaid was established in 1965 as part of the Social Security Act, with the purpose of providing health coverage to low-income individuals and families. Initially targeted at families receiving cash assistance, the program has since expanded to cover a broader population, including pregnant women, children, elderly adults, and individuals with disabilities. As of 2023, Medicaid covers over 83 million Americans, making it the largest source of health coverage in the United States. Medicaid is jointly funded by the federal and state governments, with total spending exceeding $600 billion annually. The program plays a crucial role in ensuring access to healthcare for millions of Americans who might otherwise be unable to afford it.

Criticisms of Medicaid

However, the cost and expansion of Medicaid have raised concerns among political conservatives. They argue that the rising expenditures place a significant burden on federal and state budgets, potentially diverting funds from other essential services. Additionally, some conservatives believe that the expansion of Medicaid encourages dependency on government assistance rather than promoting self-sufficiency.

Furthermore, well-documented cases of Medicaid fraud and abuse have contributed to a negative perception of Medicaid among many, but especially among more conservative Americans.

Reconsider Your Conflict

When people with conservative beliefs about personal responsibility face the need for help, such as caring for an aging parent without savings, they may encounter a conflict. Their value of financial independence clashes with the necessity to use government programs like Medicaid, which they previously saw as fostering dependency.

But is this really a moral and ideological dilemma that forces you to reconsider your beliefs in the light of your responsibilities and the stark financial realities you are confronting? The prevailing theme expressed by your beliefs seems to be taking responsibility, and you could consider that getting Medicaid support for your mother during what is likely the last remaining years of her life IS taking responsibility.

Applying for Medicaid does not negate the commitment to caring for your aging mother. Instead, it acknowledges the practical realities of the high costs associated with long-term care. By securing financial assistance, you are ensuring that your mother receives the best possible care, which is a responsible and loving act. Rather than creating dependency and irresponsibility in you, here are three things getting Medicaid for your mother would allow you to do.

Maintain Active Involvement: Even with Medicaid support, you can remain actively involved in your mother’s care. Regular visits, advocating for her needs, and staying informed about her health and well-being demonstrate your ongoing commitment and responsibility.
Focus on Quality of Life: By alleviating the financial burden through Medicaid, you can focus more on enhancing your mother’s quality of life. This might include spending more meaningful time with her, engaging in activities she enjoys, and ensuring she feels loved and supported.
Preserve Financial Stability: Seeking Medicaid assistance can help preserve your financial stability, allowing you to continue fulfilling other responsibilities and maintaining your independence. This approach ensures that you can care for your mother without compromising your own well-being and future.

So let yourself off the hook. You haven’t compromised your values, but perhaps you can see others in a more compassionate way. How many other Medicaid recipients value personal responsibility, but circumstances gave them few options but to accept the safety net that Medicaid offers? It’s ok to support Medicaid reform in order to make it more fiscally sound and free from fraud and abuse while also acknowledging its value to those who need it most.

Hollywood Cases Highlight the Benefits of Long Term Care Trusts.

March 4, 2025 / David Russell

When planning for long-term care, many individuals focus on purchasing insurance or setting aside assets to cover future expenses. However, financial abuse and mismanagement can derail even the best-laid plans. A long-term care trust offers a structured, protective approach to ensuring that funds are used appropriately, especially when an individual is no longer able to manage their own affairs.

What Is a Long-Term Care Trust?

A long-term care trust is a standby revocable trust designed to provide financial oversight for an individual’s long-term care needs. While the settlor (the person creating the trust) is capable, they retain control over the trust assets. However, the trust includes springing provisions—legal language that allows a successor trustee to step in and take over management if the settlor is deemed incapacitated.

The trust can own various assets, including long-term care insurance policies, life insurance policies with long-term care riders, and liquid assets designated for care-related expenses. Once the successor trustee takes over, they are responsible for filing insurance claims, paying expenses from the trust, and managing trust assets to ensure care needs are met.

Lessons from the John Amos and Mickey Rooney Cases

One of the most compelling reasons to consider a long-term care trust is to prevent financial exploitation, as tragically illustrated in the John Amos and Mickey Rooney cases.

John Amos, a well-known actor, who died in 2014, has been called a victim of elder financial abuse by his adult children, each claiming that the abuse was perpetrated by the other.

Mickey Rooney, another famous actor, provided powerful testimony before Congress about the financial abuse he endured in his later years. Rooney described how he was isolated, financially exploited, and left without access to his own money. His testimony shed light on the widespread issue of elder financial abuse and the devastating impact it can have on an individual’s dignity and well-being.

A long-term care trust may have helped prevent such abuse by placing financial oversight in the hands of a designated trustee rather than leaving assets vulnerable to manipulation by infighting siblings or self-serving outsiders. With a properly structured trust, all care-related expenses are managed transparently and according to predefined terms, reducing the risk of unauthorized withdrawals or misuse.

Key Benefits of a Long-Term Care Trust

Ensures Funds Are Used for Care Needs
By designating a trust to own long-term care policies and other assets, funds are explicitly earmarked for care expenses. This prevents potential misappropriation by well-meaning but financially strained family members.
Streamlines Insurance Claims and Payments
Managing long-term care insurance claims can be overwhelming, especially when a person is already facing health challenges. The trustee, as the legal owner of the policy, handles all paperwork, ensuring that claims are filed correctly and benefits are used as intended.
Protects Against Financial Exploitation
With a structured oversight system in place, there is a clear fiduciary duty to manage funds appropriately. The trustee must follow the trust’s terms, keeping records and providing transparency that minimizes opportunities for fraud or undue influence.
Reduces Family Conflicts and Burdens
Family members often struggle with decisions about paying for care, especially when different parties have competing financial interests. A long-term care trust provides clear guidelines, removing ambiguity and reducing potential disputes.
Offers Continuity and Professional Management
If a person becomes incapacitated, the transition of financial management is seamless. The springing provision allows for immediate oversight by the successor trustee, avoiding court intervention or delays that could disrupt care.

Selecting the Right Trustee: The Case for a Professional

Perhaps the most critical decision when establishing a long-term care trust is choosing the right trustee. While some individuals select a family member, this can create conflicts of interest, emotional strain, and potential mismanagement. Instead, using a professional trustee—either an institutional trustee (such as a bank trust department) or an independent professional trustee—offers significant advantages:

Objectivity – A professional trustee is neutral and bound by fiduciary duties, making decisions based on the trust’s terms rather than personal interests.
Expertise – Managing long-term care expenses requires financial, legal, and insurance knowledge that a professional trustee brings to the table.
Accountability – Unlike family members, professional trustees are legally required to keep records, report transactions, and manage funds prudently.
Reliability – Professionals are available long-term and will not face personal circumstances (such as illness or financial hardship) that might interfere with management duties.

A long-term care trust is a powerful tool for ensuring that assets are managed effectively, claims are handled properly, and financial abuse is prevented. By structuring the trust with springing provisions and selecting a professional trustee, individuals can safeguard their care needs and provide peace of mind for themselves and their families.

In a world where financial abuse and care mismanagement are real threats, a well-crafted long-term care trust offers a practical, protective, and proactive solution. Whether planning for yourself or helping a loved one, considering this option is a smart financial move that can make all the difference when it matters most.

Comparing and Contrasting Advanced Aging and Wealth Disparities

February 18, 2025 / David Russell

Early in my career, my sales manager asked his group of trainees of which I was one, “what is the difference between and elderly gentleman and an old man.” His response... “Money.”

Aging is an inescapable aspect of the human experience, and yet, the pathways through advanced age can be profoundly affected by various socio-economic factors, particularly wealth disparities. While financial resources impact access to care and quality of life for older adults, wealth alone does not guarantee a positive aging experience. Instead, the availability of resources often hinges on the willingness and commitment of caregivers, healthcare professionals, and community systems to provide adequate support.

Physical Health

As we enter advanced age, we inevitably face a range of physical challenges, including chronic illnesses, mobility issues, and sensory declines. While the wealthier among us may typically enjoy better overall health outcomes due to greater access to quality healthcare, nutrition, and supportive living environments, having financial means does not inherently ensure effective care.

Access to healthcare requires not only financial resources but also a network of committed healthcare providers, family members, and community support systems. Wealthy individuals might struggle if their caregivers are untrained, unavailable, or unwilling to facilitate their healthcare needs. Even with the best financial means, older adults can encounter barriers if there are no supportive systems in place to bridge the gap between available resources and personal needs. Michael Jackson had immense wealth and popularity, but towards the end of his life, he faced significant financial and personal challenges. Despite his financial resources, he had ongoing battles with management and family members over how his wealth was managed and was often surrounded by individuals who may not have had his best interests at heart.

Additionally, affluent seniors may have access to physical therapy, personal trainers, or wellness programs, but their benefits depend largely on the commitment and expertise of those administering the services. If caregivers lack the necessary skills or motivation to engage individuals in maintaining their physical health, the impact of wealth can be diminished. Therefore, it becomes crucial to recognize that financial ability without the support of capable caregivers may not translate to better health outcomes in aging.

Psychological Well-being

The psychological dimensions of aging are equally complex, with the implications of financial status playing a pivotal role in mental health. Feelings of loneliness and depression are profound concerns for seniors, particularly those facing the isolation that can accompany advancing age. Wealth can potentially provide mechanisms to combat loneliness—such as access to social clubs, travel, or companionship services—but again, financial means do not guarantee emotional well-being. Howard Hughes, the world’s first billionaire, suffered from years of self-neglect and declining mental health.

Wealthy individuals often benefit from networks that can provide such engagement, but they remain dependent on the reliability and affection of those around them. A lack of authentic connection can lead to feelings of emptiness, regardless of financial security. Conversely, seniors with limited financial means may find solace and community among family and friends, fostering psychological resilience even in the face of economic constraints.

Moreover, the attitudes and values of society toward aging can affect how both wealthy and impoverished individuals perceive their aging experience. In cultures that devalue the elderly or view aging as a burden, both wealth and poverty can lead to feelings of despair. What is required, therefore, is not just a financial remedy but a cultural shift that underscores the importance of maintaining psychological health through connection and mutual respect.

Cultural Perceptions

Cultural contexts wield considerable influence over the experiences of aging and perceptions of dignity. In societies that honor elders, aging is often regarded as a time of wisdom and respect, with cultural rituals and familial support playing crucial roles regardless of economic status. Here, dignity can be preserved through community engagement and intergenerational connections, promoting a rich sense of belonging.

However, wealth-driven cultures may regard aging more negatively, often associating it with decline and reduced productivity. This perspective can be particularly damaging for those who are financially disadvantaged. Yet, wealthier individuals are not entirely insulated from ageism—experiences of bias can still permeate their lives if society does not respect and value older adults. Actor Micky Rooney’s family gained control over his assets and personal freedom, even as the actor was objecting to the very authorities that were in place to protect him. Only after hiring and taking legal action, did he prevail with regaining his autonomy.

The key to maintaining dignity across cultural spectrums lies in fostering environments that are inclusive and supportive. This can be achieved through community programs that promote understanding and appreciation of aging and encourage engagement between generations. Such initiatives can help bridge the gap between economic divides, reinforcing the idea that respect for elders should not be predicated on financial status.

Dignity and Integrity Across Wealth Status

Ultimately, dignity and integrity are universal entitlements that transcend financial circumstances. Regardless of wealth, all individuals deserve recognition and respect for their life journeys. The challenge lies in creating a society that honors this belief and ensures equitable access to resources and support. All of the world’s wisdom traditions include honoring elders as one of its core tenants, but we have a history of unobservance. Jesus rebuked the Pharisees for their legalistic adherence to tithing, while they pardoned parental neglect (Matthew 15:1-9).

One promising trend is the development of intergenerational relationships that enable older adults to share their wisdom and experiences while offering younger generations insights into the realities of aging. In doing so, society nurtures an environment where all elders feel valued and empowered.

In this world view, it matters not whether someone accesses care and services through charity, Medicaid, or from personal wealth, each is treated the same.

The relationship between advanced aging and wealth disparities presents both opportunities and challenges. While financial resources can significantly influence physical health, psychological well-being, and cultural perceptions, they do not exist in isolation. The availability of these resources ultimately hinges on the commitment and compassion of caregivers, family members, and community networks. By recognizing and embracing the inherent dignity of every individual, regardless of their financial situation, society can cultivate an environment where all older adults are respected, valued, and supported in their journey through aging. In this way, the focus shifts from the limitations imposed by wealth disparities to the shared human experience of aging, highlighting the importance of connection, mutual respect, and integrity.

When Mom or Dad Want to Marry…at 80!

February 14, 2025 / David Russell

It’s Valentine’s week and romance is in the air. One of the joys I get from lunching with Mom at her retirement community is to hear the latest gossip about the budding romances among the residents, most of whom are well into their 80’s and 90’s. There have been more than a few marriages that result from these new relationships, most occurring after a fairly brief courtship. As one fellow remarked to me one day, “son, at our age, it’s dangerous to buy greenn bananas.”

If you are the adult child of an aging parent who also happens to be single, you may one day be introduced to a “special friend” in their life. Normally, your reaction may be something like, “how cute” or “way to go Dad” but if the relationship quickly becomes more serious or if you’re suddenly asked to give your blessing to their marriage, this can be a very troubling event. In preparation for writing this article, I googled “aging parent wants to get remarried” and most of the search results were forum posts from adult children seeking advice on how to deal with Mom or Dad’s new romance that has gone from sweet to sour because now they want to get married!

All sorts of questions run through your mind and you may find yourself experiencing anger, fear, or resentment at the prospect of this person interrupting Mom or Dad’s perfectly lonely existence. Somewhere in-between the extremes of “I forbid it” (like that’s gonna work) and “It’s your life, do what you want” can be found a position of legitimate care for their happiness and concern that they not be hurt by the experience. Recently a judge intervened in the marriage of a couple in their mid-nineties due to concerns expressed by the bride’s daughter questioning the marriage’s legitimacy.

In his article titled “How to Deal With an Elderly Parent’s Remarriage – Resolving Issues” author and financial advisor Michael Lewis, gives some wise advice when talking to your aging parent about their choice to remarry late in life.

Be Respectful. You are speaking with the one remaining person who brought you into this world and who will always love you.
Try to Put Yourself In Your Parent’s Position. They are trying to make the best of a very difficult situation. They seek your blessing and understanding, so listen carefully and thoughtfully before making your own point or expressing your doubts.
Avoid Accusations, Recriminations, and Ultimatums. Your parent has already experienced and worked through the guilt often associated with remarriage after the death of the spouse.
Curb Your Instincts to Attack or Belittle Your Parent’s Choice of Mate. It is never a good idea to potentially offend your mother or father in such a petty manner.

On the other hand, there may be legitimate concerns about Mom or Dad’s new relationship. Studies show that as we age our brain’s ability to make sound judgments becomes impaired. This is not necessarily dementia, just biology. Most state laws include an elderly person in a group called “vulnerable adults” because of this biological fact.

Three factors contribute to the vulnerability of an older person: diminished capacity, lack of informed consent, and undue influence. Each of these could be at work in an older person’s romantic relationship and any one of them would give question to the legitimacy of a marriage. For example, if Mom has diminished capacity – a condition that may have to be proven by a qualified physician – she might not have the legal capacity to enter into a marriage contract. Or suppose she has capacity but was not given enough information to give informed consent when she signed over control of her assets to her new spouse in a durable power of attorney. Or maybe she did know exactly what she was doing but signed the power of attorney to her new spouse anyway because he told her if she did not sign it, he would not take care of her in her old age, which would be subjecting her to undue influence.

The best way to prevent either of these vulnerabilities from hurting either party is to have an honest conversation with your parent about your concerns. If you sense this new “special” person has interests other than companionship, then intervention might be required, but hopefully this can be avoided by remaining respectful of each of them and involving neutral parties. While keeping in mind the points that Michael Lewis makes above, I suggest a meeting with other family members and a neutral mediator.

Ask Mom or Dad if they are open to discussing their marriage with a family counselor, clergy member, or attorney. It could be that a more neutral party will come across as less threatening than you and they may be more willing to listen to that person than to you. Speak openly about your concerns over property and other assets. Even if you have blessed the marriage and no sign of the three areas of vulnerability are evident, they will likely be unaware or unconcerned about property and financial division. Have them meet with an estate attorney or other qualified advisor who can help them understand the complexities of blending two financial households. Once they realize the burden this might place on their surviving children, they will more likely be willing to take the appropriate steps.

It seems that many adult children assume the proper role of a parent who becomes widowed late in life is to just remain that way for the rest of their life. In doing so, we diminish their dignity by denying them the companionship and affection that they enjoyed for 50 or 60 years as if that need vanishes when their spouse predeceases them. Instead, we could adopt the same position as we might with our own adult children: blessing a relationship that makes them happy while protecting them if we can from those that might hurt them. It’s a delicate balancing act on either end of the age spectrum.

Constructive Trusts – When Trust is Broken

September 29, 2023 / drussellcfp

Elder financial abuse is a distressing issue that affects vulnerable seniors, often leading to significant financial losses. In the realm of legal remedies, one powerful tool used to address such cases is the constructive trust. But what exactly is a constructive trust, and how does it work?

At its core, a constructive trust is a legal remedy aimed at correcting unjust enrichment and ensuring that property or assets are returned to their rightful owner. Unlike a traditional trust created by a formal legal agreement, a constructive trust arises by operation of law. It’s a flexible and equitable concept that courts employ when they find that someone has obtained property, assets, or benefits in an unfair or wrongful manner.

Constructive trusts are not exclusive to elder financial abuse cases; they can be applied in various situations where one party has benefited at the expense of another without a proper legal basis. For purposes of our discussion however, we’ll focus on their use in elder financial abuse situations.

Indiana Case Highlights Family Tensions in Selecting Financial Caregivers.

March 27, 2023 / drussellcfp

Most people should be able to choose a loving and honoring adult child or family member as a financial caregiver. An Indiana case highlights the importance of integrity when making the choice.

In the case of Biggs vs Renner, Terri Renner and Sherry Biggs are siblings locked in a court battle over their mother’s care, with Terri claiming that Sherry abused her position as agent under her mother’s Power of Attorney, and used their mother’s funds for her own benefit. Court records would confirm Terri’s fears.

Sherry admitted to converting her mother’s accounts first to a joint account, and then to accounts only in her name. She offered a promissory note to court as evidence that she intended to pay the money back, but the the note was largely unenforceable due to her mother’s incapacity, and no payments had been made so far. In addition, Sherry allowed her daughter and husband to live rent-free in her mother’s home and paid several thousand dollars of improvements from her mother’s accounts that did not directly benefit her mother.

Terri sought a court’s intervention to remove her sister as attorney-in-fact, and to insert a disinterested third party as guardian of their mother’s estate. The court granted Terri’s petition, but Sherry objected on appeal.

A Power of Attorney is a legal arrangement whereby one person grants authority (let’s call that person the grantor) to another person to act in their behalf as attorney-in-fact, or agent while they (the grantor) are alive but unable to act for themselves. Acting as agent under a power of attorney is a fiduciary responsibility that obligates the financial caregiver to exercise the powers granted solely for the benefit of the grantor. A financial caregiver has to keep accurate records and is prohibited from using the property of the grantor for their own purposes. Being a financial caregiver is an honorable position when conducted honorably.

Why name an adult child as financial caregiver?

It is understandable that an older person would want to name an adult child as financial caregiver on their behalf. We want to believe our own children would act honorably on our behalf, or perhaps we have regrets about our own parenting and feel guilty if we do not atone ourselves by putting them in charge. Sometimes a parent will name an estranged child in hope that the trust shown by the parent will mend a broken relationship. Parents will often do whatever it takes to keep a child close to them. However, the selection of a financial caregiver should place emphasis on the dependability and the integrity of the individual over familial connections. This may require difficult decisions and may even alienate family members, but if early and intentional discussions on the subject can be held with the appropriate family members, perhaps these kinds of conflicts can be avoided.

Note: The information above is for general information only and should not be relied upon to make legal or financial decisions Advice as to the preparation and use of Powers of Attorney should only be provided by a qualified attorney licensed in your state.

Daughter and partner try to force the sale of parent’s home.

August 18, 2022 / drussellcfp

A Massachusetts case illustrates the care that must be exercised when giving property interests to others and how those interests are titled. Donald and Suzanne Bragdon owned their home as Tenants by Entirety, a form of holding title available only to married individuals. They subsequently conveyed one-half of their home to their daughter, Laurie Durken, and her partner, Terrence McCarthy as co-joint tenants between all four of them, but also retained a life estate in the property. A retained life estate divides property ownership into two parts – one part for the living owner, and one part for the residual owner that only vests after the living owner’s death.

So, we have three forms of holding title going on here – a tenancy by entirety for half the house between Donald and Suzanne, a joint tenancy between all four individuals for the other half of the house, and a retained life estate in the entire property by Donald and Suzanne. Whether or not this was intentional planning I do not know, but it’s a recipe for disaster and it nearly occurred for Donald and Suzanne but for the protection against forced division that their various titling gave them.

Sadly, Laurie and Terrence sought to partition the property – essentially force the sale of it presumably because they needed the money. As you would expect, Donald and Suzanne objected to this idea of forcibly selling their home, and ultimately the conflict wound up in court. Laurie and Terrence argued that they owned a “possessory” right in the property regardless of the existence of the retained life estate that gave them the right to partition. Donald and Suzanne said the life estate superseded any right of possession Laurie and Terrence may have until after their deaths.

After examination of the deeds executed between the four, the courts agreed with Donald and Suzanne.

McCarthy and Durkan relinquished their prior possessory undivided one-half interest in the property by voluntarily signing onto the 2013 deed as grantors. Thus, the Bragdons are entitled to the benefit of the presumption that one who signs an instrument has read and understood its contents and has assented to its terms and legal effect. By the 2013 deed, the Bragdons hold a life estate in 100% of the property, and McCarthy and Durkan hold the remainder interest in 100% of the property. As McCarthy and Durkan do not hold any present possessory interest in the property, they are not entitled to partition. Their petition for partition must be dismissed.

Source: MCCARTHY vs. BRAGDON, MISC 20-000118

The lesson here is to seek competent legal advice when it comes to gifting property interests to 3rd parties and forms of holding title. A knowledgeable attorney will not only understand the operation of title law but can also give guidance and warnings about these kinds of what-if scenarios. In this case, an ounce of prevention would have been worth more than the pound of cure.

Click to read or download our Guide to Holding Title

April 23, 2021 / drussellcfp

Britney Spears has been under a California-ordered conservatorship since 2013, and in recent years has tried unsuccessfully to have her father, Jamie Spears, removed. Attorneys for Jaime Spears have maintained that he “has always acted in the best interests of his daughter.”

Conservatorships are court-ordered arrangements presumably designed to protect those who cannot manage their own affairs due to some physical or mental limitation. Each state has its own rules for conservatorships and courts may appoint anyone it chooses to be in charge of someone’s property.

A spotlight on Britney Spears’ conservatorship has led lawmakers in one state to consider changes, but some say focusing on the pop star could overlook the needs of those with disabilities.

Source: #FreeBritney Movement Prompts Lawmakers To Consider Changing Conservatorship Rules – Disability Scoop