Category: Fraud and Abuse (Page 1 of 2)

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

At 93, She Waged War on JPMorgan and Two Financial Advisors—Her Grandsons – Bloomberg

February 22, 2021 / drussellcfp

Beverley Schottenstein said two grandsons who managed her money at JPMorgan forged documents, ran up commissions with inappropriate trading and made her miss tens of millions of dollars in gains. So she decided to teach them all a lesson.

Source: At 93, She Waged War on JPMorgan and Two Financial Advisors—Her Grandsons – Bloomberg

Suspension imposed after appeals judge is accused of making himself a beneficiary of ex-client’s will

January 15, 2021 / drussellcfp

The Georgia Supreme Court has suspended a state appeals judge with pay during an ethics investigation.

The court suspended the judge, Christian Coomer, on Wednesday, Law360 reports.Coomer is accused of making himself a beneficiary and his wife the executor when drafting wills for a then-client, according to Law.com, Law360 and the Daily Tribune News.

Coomer is also accused of drafting an irrevocable living trust for the client that designated Coomer as the trustee and beneficiary, with the power to transfer funds to himself while the client was still alive, according to the Dec. 28 charges by the Georgia Judicial Qualifications Commission.

Source: Suspension imposed after appeals judge is accused of making himself a beneficiary of ex-client’s will

Court of Appeals Affirms That Will Was Product of Undue Influence

July 9, 2020 / drussellcfp

The Law Firm of Faegre Drinker Biddle & Reath LLP, recently published the trial court results of a case involving a charge of Undue Influence brought by the two adult children of William Moriarty.

Mr. Moriarty was widowed in April 2016. William had been diagnosed with depression, anxiety and congestive heart failure following Doreen’s death. Eve, who had been married three times previously and had met William while Doreen was alive, began dating him within weeks after Doreen’s death.

Afterward, Cathy and Paula noticed a marked change in their relationship with their father, though they did not learn of his and Eve’s relationship until soon before they were married. Eve and William married about seven months after Doreen’s death, and neither Cathy nor Paula were invited to, or attended, the wedding.

From firing William’s caregiver to procuring a new will for him through her own lawyer, Eve also was named as joint owner of a new, large home purchase shortly after their marriage, as well as of a new $60,000 Lexus.

Relying on an expert witness, the court determined that William’s physical and psychological impairments made him vulnerable to undue influence.

The trial court was convinced that Eve exercised undue influence over William due to multiple facts presented at trial, including the dramatic shift in his estate plan only one month before his death and Eve’s involvement in procuring his will and surrendering his life insurance policy. The trial court was less than impressed with Eve’s demeanor in court, noting her “flat affect during emotional testimony,” which left the court “with no confidence that Eve married William because she loved him and with the conclusion that Eve planned to take all of William’s money all along.”

Ultimately, the trial court declared that the purported will was invalid due to William’s lack of capacity and Eve’s undue influence over him, and it ordered that William’s estate be distributed as if he had died intestate.

The court also ordered Eve to transfer title of bank accounts, the house and the car — all of which she otherwise would have received as a joint owner — to William’s estate.

Source: Court of Appeals Affirms That Will Was Product of Undue Influence | Publications | Insights | Faegre Drinker Biddle & Reath LLP

Not So Green Acres

February 17, 2020 / drussellcfp

In this episode of The Case Files, I profile a 2010 Texas case involving a daughter’s misappropriation of her deceased father’s trust funds as well as her aging mother’s personal assets. The characters from the 1960s sitcom Green Acres provide a little humor to an otherwise serious situation. Enjoy and learn!

https://youtu.be/cVZsNE85HbE

What is Undue Influence?

January 31, 2020 / drussellcfp

Ellis Hanson was once a brilliant engineer who was partially responsible for the development of computer typesetting that made him a wealthy man upon his retirement. He and his wife, Velta, purchased their retirement home in Naples Florida and he did well in the stock market, investing his money well. By the early 2000s, however, his cognitive abilities were declining, and the couple turned to a banker to handle their finances. On September 30^th2008, Hanson pulled a small piece of paper out of his pocket and stared at it blankly. Not understanding what it was, he asked his wife to look. It was a receipt for a $260 lunch in Naples.

Velta Hanson was surprised. Her then- 84-year-old husband, a brilliant engineer in the early stages of Alzheimer’s disease, had no recollection of eating there hours earlier. Velta Hanson hired a private investigator. But days before receiving his report, she found a letter revealing her husband had written a $10,000 check to a friend of two decades, Alma Teti. That was the day she asked her husband if she could take over their finances. It turned out that was just a fraction of what Ellis Hanson had given Teti. In addition to the lunch, there was also more than $1 million in checks from 2006 to 2008, nearly $85,000 in jewelry since 2005, including a $26,000 blue stone ring for her birthday, and thousands in expensive lunches, champagne and drinks.

In 2009, the couple sued Teti, alleging exploitation of a vulnerable adult and conversion of personal funds, illegally depriving the Hansons of their property. Florida law defines a vulnerable adult as someone 18 or older whose ability to perform the normal activities of daily living or provide his or her own care or protection is impaired due to a mental, emotional, long-term physical or developmental disability or dysfunction, brain damage or infirmities of aging. A three-day jury trial resulted in a judgment of over $2 Million against Teti.[1]

The means by which Alma Teti committed her offense is often referred to as Undue Influence. Undue Influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter. Along with capacity and consent, Undue Influence is a key concept in elder law. Capacity and consent relate primarily to an individual’s abilities to understand and process information in order to take action or to make decisions. Undue Influence focuses more on the relationship between the individual and another person, coupled with that person’s opportunity and power to manipulate the vulnerable person’s thoughts and actions. An older person may be more vulnerable to Undue Influence because he or she has diminished capacity, or the person has become isolated from trustworthy family and friends.

The legal standard for Undue Influence has been defined as influence that amounts to deception, force or coercion that destroys a person’s free agency.[2] Undue Influence arises most predominantly in probate, trust and estates, power of attorney and guardianship matters. Undue Influence typically is not itself a crime, but it can be a means for committing a crime.

Undue Influence can take on other, more subtle behaviors as well. For example, the following may constitute Undue Influence if the resulting actions deprive an older person of their free agency in making a decision:

An adult child threatens to stop visiting her elderly mother unless she gives her the silver dinnerware that she had been promised.
A new companion convinces an older man to give her power of attorney because his children never come to see him and don’t care for him like she does.
A representative of a religious ministry regularly visits an elderly shut-in and convinces her to make a large donation to the ministry after he assures her that “God will bless her abundantly” if she makes a sacrificial gift.

What’s important to remember about Undue Influence are the position of power that one individual may hold over another because of the relationship between them, and the opportunity to misuse that power through manipulation. Here are a few tips to guard our elderly loved ones against Undue Influence.

Avoid social isolation. When an older person has an active social life around lots of family and friends, the influential power of someone wishing to manipulate them is minimized, and the opportunities to do so are less available.
Be aware of cognitive decline. Diminished capacity increases the vulnerability to Undue Influence. Maintain an attitude of honor and avoid patronizing language or tones such as baby-talk while honestly discussing any concerns you have with your older loved one.
Adopt a family code of honor. All of the world’s great wisdom traditions have honoring parents and the elderly as a core tenant. It’s time to practice it. What is your family’s honor code?

Undue Influence is a very complex legal concept and should not be lightly alleged. If you believe that a loved one is being unduly influenced, contact an attorney licensed in your state with expertise in elder law.

[1] NewsNaples.com; Judge rules family friend exploited, took $2 million from Naples man with dementia, By Aisling Swift, Saturday, July 23, 2011

[2] Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers

Casey Kasem children settle their wrongful death case against his wife

December 13, 2019 / drussellcfp

Kerri, Julie and Mike Kasem have asked a judge to dismiss their wrongful death lawsuit against their stepmother, Jean Kasem, 64, as part of a settlement after a four-year legal feud.

While these cases make the headlines due to the celebrity status of the parties and the amount of money involved, dramas like this for much smaller amounts happen all too frequently. Death and money can bring out the worst of family dysfunction.

How can families prevent this kind of outcome? There is no simple answer, and if the dynamics among the family are already toxic, then it’s even more important that families have a solid, written plan in place before incapacity strikes. It may not have prevented the accusations of wrongful death between the parties, but it could have created a structure of care and wealth distribution that could have neutralized or minimized any incentive for the parties to commit a wrongful death offense.

Unfortunately, no estate plan can prevent an immoral or illegal act; nor can it instill character in the lives of others.

Source: Casey Kasem’s children settle their wrongful death case against his wife | Daily Mail Online