In our work with older and vulnerable clients and their families, we frequently encounter instances of scams and financial abuse against seniors. Seniors age 60 and older are approximately 15 percent of the population in the United States, yet represent about 30 percent of the number of fraud victims. In this blog post, we use four hypotheticals to highlight the legal and ethical considerations in addressing situations involving the financial lives of older or vulnerable individuals.
Each of these hypotheticals involves a “gray area”. To address them, we draw upon our experience and exercise our professional judgment to advise the individuals in question (and/or their families) about how to protect themselves and address their needs.
So, here’s the disclaimer language you probably saw coming: We don’t certainly don’t intend readers to take any of the below as legal advice, or to think that there aren’t many potential ways to perceive and address such situations. In short- our response may not be your response, and it may not be the same one that another attorney recommends. We’re more than okay with that. In fact, we talk to each other, and to our peers (and vice versa) fairly often about how to address tricky situations. So what follows is not gospel, but rather commentary.
On to the hypotheticals.
Hypothetical #1: Make-Believe Millions
Alma is an 88 year old with early-stage dementia. She relies upon the help of paid non-family caregivers in her home to help with her daily care needs. She has some assets and makes questionable financial decisions, but still has sufficient capacity that she does not yet need a guardian. Over many years, she has made several thousand dollars in loans to her sitters that have never been repaid. She writes several checks nearly every day for $25-$50 each to any of dozens of foreign “sweepstakes” who promise her millions but have never produced a dime. She also receives daily calls from Jamaica, likewise promising millions if she only wires money for “processing fees”.
Circus promoter P.T. Barnum famously said “There’s a sucker born every minute.” Alma’s responses responses to the foreign sweepstakes soon place her on a “sucker list”. A sucker list contains the names of people who have been, or are good candidates to be, victims of fraud. (People on such lists may also hear from crooks who claim they can help recover, for a fee, money lost to a con artist.)
Alma initially named her son as Agent under her Power of Attorney, but when he could not serve because of poor health, her trusted granddaughter was next in line to serve as POA. Her granddaughter begins regularly reviewing Alma’ finances for fraud and to ensure Alma made no more bad loans. Granddaughter uses express language in the POA for managing mail and has a caregiver help to “filter” Alma’ mail (to eliminate lottery scam mail). Alma saw no more written sweepstakes offers, and she soon stopped sending checks to lottery scams.
To protect Alma from unknown or unwanted phone calls, granddaughter installs a simple Digitone Call Blocker ($100) that blocks certain phone numbers and (when wanted) all calls from certain area codes, thus greatly reducing the number of fraudulent phone calls.
In the end, Alma might not let anyone else manage her checkbook, and might refuse to seek repayment of the loans that she made to her caregivers. She is well within her rights to do both of these things: It’s still her money! Yet with the help of an assertive granddaughter as Agent under her Power of Attorney, Alma could go from spending $1000+ each month on checks to foreign lottery scams to writing only checks for legitimate bills and charitable donations.
Theft by or unreimbursed loans to caregivers are a common issue for our older and vulnerable clients. These clients sometimes do not want to address them aggressively because they are physically dependent (and often emotionally attached) to their caregivers.
Likewise, fraud by phone and mail is a rampant problem, but one that can be addressed more aggressively if the vulnerable client is willing to have their Power of Attorney help police their mailbox and their phone line in the ways we described.
Here, Alma has a trusted Power of Attorney, but also has sufficient capacity such that she should be included on all major decisions even if she is not involved in all of the details.
Hypothetical #2: Financial Advisor Or Pickpocket?
Betty is a 65 year old with assets totaling about $800,000. She is divorced with no children. Betty has early onset dementia which leaves her increasingly dependent upon a sorority sister of hers who has become a very trusted friend to manage Betty’s financial decisions and ensure her care needs are met.
A predatory “financial advisor” (a former employee of Betty’s bank!) has been after Betty to sell her high-commission financial products that Betty does not understand, want, or need.
1. We meet with Betty and quickly discern that she has sufficient capacity to execute a Durable Power of Attorney (POA). This document provides her trusted friend with express authority to manage Betty’s finances and her care needs.
2. We record Betty’s POA with the Superior Court. Recordation prevents anyone but her trusted friend from making any real estate transactions on Betty’s behalf or holding themselves out as being Betty’s Financial Power of Attorney.
3. With Betty’s full approval and cooperation, we help Betty’s POA sell Betty’s house so that Betty can move into assisted living.
4. With Betty’s approval, we would inform Betty’s assisted living facility that the predatory “financial advisor” who had tried to sell products to Betty that she did not want, need, or understand was not welcome to meet with Betty.
Every profession has its charlatans, and protecting vulnerable individuals against them takes constant vigilance. As is often the case, the person trying to get into Betty’s wallet in this hypothetical was actually someone whom she thought she knew and could trust, and who knew enough about Betty’s assets to pursue her.
As above, Betty has a trusted Power of Attorney, but also has sufficient capacity such that she should be included on all major decisions even if she is not involved in all of the details.
Had Betty purchased financial products from the “advisor” in question that were not suitable for Betty’s needs, she might be able to file a claim against the advisor under federal investment regulations. Georgia State University College of Law has recently opened an Investor Advocacy Clinic that can help Georgia residents prosecute such claims against unscrupulous advisors who have violated the law.
Hypothetical #3: Take The Money and Run
Caroline is a widow in her late seventies. Caroline has two sons: a special needs son in his fifties for whom Caroline remains the primary caregiver, and an estranged son who was listed as a co-owner on numerous bank accounts with Caroline.
Caroline’s estranged son made several unauthorized transactions from Caroline’s accounts: two withdrawal attempts (for $5000 and $10,000, and the unauthorized liquidation of a Certificate of Deposit worth more than $50,000). As sometimes happens, let’s say this largest withdrawal was not discovered until many months after the fact. The estranged son never contributed a penny towards any of these accounts.
Caroline’s Bank quickly detects two of the three withdrawals. Caroline confronts her estranged son about the $5,000 withdrawal. The son returns this money. Caroline’s bank rejected the second withdrawal attempt for $10,000.
With our encouragement and that of the bank, Caroline removes her estranged son from all financial accounts so that he could make no further unauthorized withdrawals.
We would rewrite Caroline’s Will to include a testamentary Special Needs Trust for the disabled son to ensure that this son’s inheritance did not prevent him from getting Medicaid. We could also execute a Revocable Living Trust that would likewise include Special Needs Trust provisions for Caroline’s disabled son, and gain the added benefit of ensuring privacy, and minimizing probate proceedings. All of Caroline’s documents would expressly exclude estranged son and estranged son’s spouse from serving in any fiduciary role for Caroline.
We could pursue the estranged son for recovery from the CD withdrawal. We probably could not recover the entire amount taken, but we have seen the valid threat of litigation (or, when appropriate, criminal proceedings) work wonders on someone’s ability to reimburse someone’s money they have taken from a bank account without permission.
This hypothetical is a cautionary tale that we often share to emphasize that non-scrupulous joint-account holders might not legally own the funds in your bank account, but can clean you out just the same, and leave you able to recover little if any of what they have taken. We know because we have seen it happen.
This hypothetical also illustrates the need for educating clients about the importance of Special Needs Trust planning for disabled beneficiaries, and the potential advantages of different levels of estate plans (Will-based versus Revocable Living Trust-based planning).
Hypothetical #4: A Significant Other, At Significant Cost
“David” is in his mid-seventies. He wife died two years ago. His adult children live outside of Georgia and do not have an active interest in David’s life. David has a new girlfriend as of two months ago. She is twenty years younger than him. She has a checkered financial past, and can barely pay her modest bills right now on her current pay.
David enjoys her company, conversation, and taking her out to dinner. David has lent her $15,000 to pay bills, and she has begun uses a credit card he has provided her “for emergency use only” for non-emergency expenses, like travel to see family across the country.
What do you think David could or should do to protect himself?
When we ask this question of audiences for our presentation on Scams Against Seniors, they universally offer a wide array of suggestions. “David should take his credit card back”, most say. “David should let her know that he doesn’t want her to use his money as she is doing,” others suggest. Some audiences have a bold individual who eventually concludes, loudly: “David should dump her!” This usually produces nervous laughter across the room, but it underscores that many of us see the relationship in this hypothetical as a quid pro quo in which David offers money, and receives companionship, but is being knowingly, well, used.
To quote Bill Withers’ classic song, let’s say David is okay with being “used.” David is of sound mind and is totally in charge of his financial life. If after seeking a professional outside perspective, he still wants to allow a girlfriend to use what may seem to others to be a disproportionate amount of his money on her needs, he can do so.
First, we should state that we have seen both men and women in David’s predicament. Because we frequently get calls from adult children who are concerned about how Mom and Dad are spending Mom and Dad’s money, we often have to explain that until a Georgia resident has been adjudicated by a Georgia probate court as lacking the ability to make significant and responsible decisions about their assets and finances, that individual is free to spend their money on a significant other, lavish vacations, expensive meals, adult films, or any number of other items that might upset their children or others.
None of this is to say that family members and others should not express their concern to someone who is a relationship in which that person is being financially used. It is to say that when an adult is of sound mind and does not want someone else to have a role in his or her financial life as Power of Attorney or otherwise, there is little that others can do other than express our concern, and, at times, our disapproval.
We frequently use these hypotheticals as part of a more in-depth presentation, Scams Against Seniors: Prevention, Recognition, and Response. This presentation lasts approximately 90 minutes, and we deliver it many times each year to receptive audiences. If you want to inquire about us making this presentation to a group, don’t hesitate to reach out to us.