COVID-19 has brought our attention to some of the more vulnerable groups in America. Unsurprisingly, one of those groups is the elderly, or individuals generally around 65 years of age or older. While healthcare workers are working harder than ever to keep the elderly safe during the pandemic, we must also bring our attention to other instances in which these individuals are at risk. Specifically, financial abuse of the elderly in the legal world is a serious problem; therefore, states’ laws must protect older Americans from fraud and other forms of abuse. In California, certain probate laws are in effect to protect the elderly – but are they enough?

Elder Fraud: A Serious Legal Problem

In March of 2019, the United States Department of Justice reported a nationwide sweep of over 260 individuals committing fraud against over two million Americans, specifically targeting the elderly. During this sweep, scammers were offering “technical support”, tricking elders into granting access to their computers. On a global level, President Trump’s administration is taking action to protect the elderly from fraud through public education and the Elder Abuse Prevention and Prosecution Act (EAPPA). However, when it comes to probate court, financial elder abuse is often a much more personal problem.

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Financial Elder Abuse in Probate Cases

California Welfare and Institutions (WIC) Code 15610.3 defines “financial abuse” of an elder as taking “real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both”. The court also identifies fraud as this conduct performed by an individual who knew or “should have known” the consequences.

Furthermore, financial abuse can occur even if the elder has signed an agreement allowing a transfer of property. Thus, California WIC identifies that this abuse may be performed by a conservator, trustee, or other representative of the estate OR an elder’s attorney-in-fact or individual with the power of attorney. That said, unfortunately most instances of financial elder abuse in probate cases are performed by close relatives.

This definition demonstrates how financial elder abuse can affect an individual’s assets before and even after they have died. For example, it is not uncommon for individuals to persuade an elderly friend or neighbor to put a home in their name for “safe keeping”. Unfortunately, in this situation, the new beneficiary may keep the home for themselves instead of passing it on as intended. In this case, probate court can do little to help an elderly individual protect themselves. However, the court has passed laws to protect individuals’ assets that have been fraudulently distributed or transferred.

California Probate Laws to Protect Elders

California WIC describes the process for the Superior Court overseeing financial elder abuse cases during or after probate. More specifically, WIC Section 15657.3 states that a personal representative of a decedent with evidence of fraud may commence an action for elder abuse. However, if the personal representative committed the fraud, another heir or interested party may file an action with the court. Ultimately, if the court finds the defendant guilty of financial elder abuse, they must return all property acquired from probate. Additionally, the court may collect attorneys’ fees and compensatory damages.

Protecting Elders During Estate Planning

The elderly and their family members should remain vigilant about elder abuse during the estate planning process. Additionally, if you or a loved one have concerns about financial abuse, consider working with a lawyer focusing in elder law. Typically, these firms also specialize in estate planning and probate.

Finally, if you are an elderly individual looking for assistance completing and filing legal documents, call A People’s Choice. Sometimes, it’s hard to find a friend or family member you trust with your finances to help with legal paperwork. Luckily, A People’s Choice is a trustworthy, flat-fee, non-attorney service that is here to help you! Our registered legal document assistants are trained and experienced in estate planning requirements in all California counties. Contact us today to learn more about how we can help!

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