ELDER ABUSE – IT HAPPENS

Although most of my practice revolves around oil and gas operators, over the years I have had the pleasure of representing a number of oil and gas landowners – some quite wealthy. This has “morphed” into handling wills and trusts, estates, estate taxes, and the like. And of course, in such a practice you are almost my definition dealing with the elderly. Aside from the obvious “human compassion” side of things, good lawyers, for professional reasons, are always aware and concerned about their elderly clients being the victim of elder abuse.

According to Forbes Magazine, People in their 80s and 90s control $1.2 trillion of wealth. Adults under 50, roughly 43 percent of the population, hold barely $1 trillion. Wealthy people in their 80s have the highest average net worth of any age bracket. The bottom line – the elderly are a pretty attractive target for scammers.

As a first step, it is a good idea to try to define the problem. Here is my definition:

Elder abuse (also called “elder mistreatment”, “senior abuse”, “abuse in later life”, “abuse of older adults”, “abuse of older women”, and “abuse of older men”) is “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.”

And who are these people of trust?

Obviously, family members, caregivers (especially in-home caregivers), and lawyers. However, in my practice I have found few instances of abuse by these individuals. Instead, I find abuse from the following:

1. Church employees and members

2. Investment counselors

3. Late in life girlfriends and boyfriends

4. Business managers and Consultants

Here are some specific examples of abuses I have seen:

1. An employee of the church attended by the elderly individual who solicited a $10,000 no-interest “loan” with no paperwork and the likelihood of repayment being virtually nil. Damningly, the children of the elderly individual, who the employee knew, did not consult or advise with the children before the solicitation;

2. Investment counselors who obtain financial control over the elderly person’s retirement accounts and commence the charging of exorbitant management fees, sometimes through “management trusts.” Watch out, especially, if the investment counselor offers “free” lunch or dinner seminars. Trust me, nothing is free.

3. A girlfriend who got an elderly individual to buy her a new house and car. Then, she encouraged the elderly individual to disassociate himself from his family and moved him in with her where he received substandard care. Oh, and did I mention see got him to transfer all of his money into joint accounts with, you guessed it, her as a joint owner.

4. A “consultant” who with the background of being a home decorator, has now, for the monthly fee of $10,000 – $20,000, become the wealthy elder’s business manager.

I commonly hear that the biggest abusers are family members and lawyers. Maybe, but I haven’t seen it. I usually see children who care greatly for their parents; and lawyers are subject to severe professional and criminal sanctions for abusing their clients. I think, candidly, that these are rare and usually are “wives’ tales.” They are being told for ulterior purposes, sometimes by those who are the “actual” the abuser.

Here are just a few common-sense things that a concerned child can do:

1. Go with your parent to medical appointments. If the doctor objects, which he or she will not, then go elsewhere. Physicians are bound by certain patient confidentiality rule, but the patient can have with them, within reason, anyone they wish when there is a doctor visit.

2. Go with your parent to visit financial advisors. Make sure you see and also approve financial management agreements – even having them reviewed by third parties, such as an accountant or lawyer if this is an area where you like sophisticated knowledge. Better yet, your parent should instruct the financial manager to make copies of the financial records available to you – and then they should be made available.

3. Go with your parent to visit accountants and lawyers. Granted, there are times when they will need to visit, privately, with your parent (just in case you are the financial abuser). But as a general rule, the client can bring with them to a meeting with a professional whomever they choose.

4. Carefully screen caregivers, especially in-house caregivers. There are incorporated caregiver businesses – and, as a default mechanism, they should be used before relying on an individual who has not been properly “vetted.”

5. Visit with the pastor of your parent’s church. I am constantly amazed how oblivious pastors are to ongoing elder abuse. Apparently, this is not an area focused on by our seminaries, where ministers are trained. But you can be on the watch – the pastor should be aware that solicitation of your parent by members or employees of the church is “off -limits,” suggesting, benignly, that you may seek to hold the Church responsible for member or employee abuses.

6. Encourage your parent to give you oversight access to bank accounts, credit cards, bank lock boxes, and financial institution accounts. Oversight is not control – the parent needs to understand that. But with an ability to oversee, you can spot financial irregularities before they get “out of hand.”

7. Encourage your parent to consider giving a power of attorney (for financial purposes) and a medical power of attorney, to a trusted family member. The receipt of such a document is a duty, not an honor. It should be given to someone who is trustworthy, knowledgeable, and has the time to devote to the elderly parent. Living in Texas and giving a child who lives in Hong Kong a medical power of attorney probably won’t work – the individual is just too far removed. It is better to give it to a family member who lives nearby.

8. Caregivers, financial advisors, business managers, attorneys, and accountants should provide monthly, itemized statements for the services they render – if not, get rid of them.

In the coming months, I intend to speak out on elder abuse. The bottom line – it is a real problem. And those who deal with the elderly, especially over a business deal, such as an oil and gas lease, should be aware that “elder abuse” is a crime. Be careful when dealing with the elderly – you may be called upon to explain yourself.

by Jack M. Wilhelm.

THE WILHELM LAW FIRM, 5524 Bee Caves Road, Suite B5, Austin, Texas 78746; (512) 236 8400 (phone); (512) 236 8404 (fax); www.wilhelmlaw.net

DISCLAIMER: The information on this site is not intended to and does not offer legal advice, legal recommendations or legal representation on any matter. You need to consult an attorney in person for legal advice regarding your individual situation.