New York Estate Planning & Elder Law Blog
Most folks never believe they or their elders could be the victim of financial exploitation by a family member or a caretaker but the truth is that every year, millions of well meaning or vulnerable individuals find themselves taken advantage of. Even independent and acute elders can find themselves fleeced by scammers over the phone or a seemingly trusted individual charged with ensuring their wellbeing.
However, with some careful planning and vigilance we can help safeguard ourselves and our loved ones from the malicious intentions of someone pretending to be someone they are not. Often times, warning signs pop up that can alert us to foul play and give us the opportunity to intervene before unscrupulous individuals unjustly enrich themselves.
Many situations of financial exploitation against elders involve family members such as adult children or another close person engaged in life care. Sometimes, these caretakers feel entitled to large portions of an individual’s wealth for rendering the care and attention needed for the elder to live a comfortable and dignified life. While there is nothing wrong with someone rewarding a child or a close individual for watching over them when needed most, some individuals may take matters into their own hands to see their inclinations through.
One warning sign can be financial inquiries or moves beyond the scope of typical activities like paying utility bills, medical treatment, nourishment and even leisure activities. Abusers may tip of family by asking questions about the elder’s assets or inserting themselves into large transfers of wealth or even drafting a newer, more lopsided last will and testament.
Concerned family should interject in perceived wrongdoing immediately to prevent irreversible financial harm to the exploited person. In order to challenge a last will and testament or assume guardianship over a living person, the petitioner must raise the issue with the courts as soon as possible and have a competency exam performed on the abused person to remove any financial powers from the alleged wrongdoer.
Taking the issue up before a court or convening a competency exam for the elder does not happen overnight and there are no guarantees the court will side with the petitioner’s challenge to a last will and testament or giving gifts. Most courts have very high burdens of proof to show an individual is incapable of making decisions for himself or herself and are very resistant to take away decision making.