Elder Abuse/Exploitation Litigation

The percentage of our population moving towards the golden years is increasing.  Additionally, senior citizens control the vast majority of the nation’s wealth.  You put these two truths together, and, unfortunately, you see a rise in elder abuse/exploitation.

Elder abuse comes in a variety of forms – physical, sexual, financial, emotional – and includes situations where the vulnerable or elderly adults are not only abused but rather neglected and/or abandoned.  Unfortunately, according to the National Council on Aging, 1 in 10 adults age 60 and older have experienced some form of elder abuse.[i]  Elder abuse is also vastly underreported.  According to the National Adult Protective Services Association, only 1 in 44 cases of financial elder abuse are reported.[ii]  What makes this even more disturbing is that the perpetrators are often our most closely loved and trusted family members and friends.  Caregivers can begin to feel entitled, and while they may begin caring for an elderly individual with the best of intentions, people have a way of convincing themselves that they deserve certain perks for their care and services.  These “caregivers” then begin misappropriating the elder’s money and assets.  This type of exploitation can occur in several ways: (1) the misuse of a power of attorney, (2) the mismanagement of trust funds, (3) improper influence to alter a will, (4) improper influence to add a name to a bank account, (5) improper influence to add a name to real estate, (6) improper influence to persuade an elderly person to hand over valuable property for “safe-keeping,” (7) improper actions as guardian or conservator, or (8) the personal representative’s failure to follow procedures or follow the estate plan, etc.

As you would suspect, elder abuse and exploitation can often be difficult to detect.  However, signs of abuse and exploitation are present.  If your elderly or vulnerable loved one begins to show any of the following symptoms, start asking more questions:

  1. Physical injury such as bruises or abrasions
  2. Depression
  3. Sudden withdrawal from usual interests or activities
  4. Sudden disinterest in financial affairs
  5. An inability to remember engaging in certain financial transactions
  6. Drastic changes in financial habits or spending patterns
  7. Unexplained isolation from family and/or friends
  8. Poor hygiene
  9. Weight loss

Likewise, if you notice the following about the caregiver, start asking questions:

  1. The appearance of a sudden increase in the caregiver’s financial status
  2. Condescending remarks to the elder or about the elder by the caregiver
  3. A sudden interest in befriending your loved one, without any reasonable explanation
  4. An attempt to isolate the elderly or vulnerable adult
  5. An attempt to geographically move the elderly or vulnerable adult

These cases often go underreported for a multitude of reasons.  The elder may simply be embarrassed.  They may fear retaliation.  They may be dependent on the person exploiting them.  They also may be completely unaware that they are being victimized.  Additionally, the family may not feel comfortable confronting the caregiver.  If you believe that an elderly or vulnerable adult is in immediate danger, notify the police or your local Adult Protective Services Agency.  Additionally, if you suspect potential elder abuse or exploitation, there are ways to investigate without putting yourself in danger or in an uncomfortable situation.  Contact Rebecca McNerney for more information.

If elder abuse is occurring, you have several options to protect the vulnerable adult, protect assets, and recover assets.  If the exploitation occurred at the hands of a fiduciary (a person in a position of trust), you can bring a cause of action called “breach of fiduciary duty.”  Other options include filing claims for common law fraud, fraud in the inducement, constructive fraud, conversion, negligence, gross negligence, negligent misrepresentation, unjust enrichment, or breach of contract, filing actions to remove individuals from positions of power, to recover property, to freeze accounts, pursuing guardianship, pursuing a protective order, petitioning the court for an accounting, among others.  Those who mismanage funds, co-mingle funds, mismanage property, engage in self-dealing, abuse authority, act negligently, manipulate vulnerable adults, or fail to account can be held responsible.

Additionally, many times, the abuser/exploiter will act inappropriately to obtain a position of trust.  This is often the first step and paves the way for the exploiter to steal funds and property.  For example, a deceptive or manipulative child may convince their elderly/vulnerable parent to designate the child as agent in the parent’s power of attorney, to rewrite their will allowing the child to inherit the entire estate, to designate the child as trustee, to designate the child as beneficiary on insurance policies or bank accounts, to retitle property, or even to turn over property and/or money for “safe-keeping.”  The list goes on and on.  Actions to correct this type of behavior include allegations of undue influence, duress, fraud, incapacity, will caveats (will challenges), petitions for removal, and actions to recover property.  If you are experiencing any of the above or similar situations, contact Rebecca McNerney to immediately shut down the actions of the abuser and protect assets before they become unrecoverable.

Rebecca McNerney practices throughout NC and SC handling estate litigation, estate administration, fiduciary litigation, guardianships/conservatorships, general litigation, and law enforcement related matters.

[i] National Council on Aging

[ii] National Adult Protective Services Association