Patricia A. Maisano’s July 2013 article, “Predatory Behavior,” is an excellent warning and offers good advice on how to spot elder abuse. However, once you’ve identified that abuse is occurring, what are some techniques for remedying the situation? Having dealt with over twenty such cases, here are some pointers.
First, somehow take possession of the victim. In no case let the predator “move in with Uncle Jack to take care of him.” The “good” family must move in with Dad, hire full time resident caregivers or get him into an individual retirement or nursing home. In one case the son moved his job to Ohio, where he could visit Dad in the nursing home every day for long hours. More on that below.
Next, start the legal attack. Sometimes another child with superior force of personality can be called in to get Mom to revoke the spurious documents. Predators seldom have good legal advice, not wanting to pay anything, and usually don’t know that the grantor of a trust can revoke the whole thing, even if they have made the predator the trustee (assuming, of course, that the trust is revocable). Wake Mom up, explain it all, get her to agree by nodding, and help her sign the revocation.
Or, bring legal action to set aside the new documents on the basis of undue influence. A same-day emergency guardianship is often possible. Often the predator will have issued instructions to the nursing home to bar the good people from visiting the victim. Again, court action is imperative. The predator sometimes has complicit legal advice. In the Ohio case mentioned above, the predator used a power of attorney to change testamentary dispositions, and the court set it aside. It was expensive, but the children got back low to mid six figures.
Which brings us to the key point, one reason the predators usually win—the good people don't want to pay to fight. So, at the outset, get a whopping retainer, and make every effort to get control of the money. In one case, where the ward had died, after the daughter (a minister) embezzled a solid chunk of change, we were able to get the judge to transfer all the money that was left to the executor and take away the daughter’s ability to defend the embezzlement.
The predator’s next trick is to convince the good people that “if you pursue this you’ll destroy the family relationship.” One victim cared so much about two weekend visits a year, she refused to take action to defend about a million dollars. A predatory minister once claimed his work for the Lord would be compromised and that the victim was unethical in pursuing him. The point here is that the predator usually gets the defender to drop the case because the lawyers are charging too much or by convincing the defenders that they are immoral in pursuing the case.
Because the defenders are likely to quit, you must take action before the indignation wears off. In one case, the bank trust officer who was “engaged” to the retirement home resident made off with all sorts of the client's money, yet when we were ready to drop the ax, the victim called it off because he did not want to disclose what a fool he'd been. The predator got it all and continued her banking career. (To be professionally all inclusive, the predator’s attorney skimmed a $500,000 retainer and, before the case was settled, the professional predator had moved in with a retired dentist twice her age in another town.)
But, there are some good and courageous people out there. In one case, the victim’s car insurance agent had been a kind, long-time friend and started coming over when she needed help. When it got legal, the agent contacted our firm. Then the predator took action, intimidated the client into getting the documents reversed and barred the friend from coming to see the victim. We settled, ultimately giving the predator the house, which is what she wanted all along.
In another case, a hairdresser was the client’s only friend and started caring for the client as she declined, ultimately hiring home health care workers. The workers started looting the house and the friend got a hold of our firm. Both the insurance agent previously mentioned and the hairdresser refused any compensation, but in the second case, we did in fact leave the hairdresser the house, at my suggestion.
The predators usually win because the victim and his or her family won’t fight. But, there victories are possible if the lawyer takes swift, decisive action. The good people have to protect the victim from the predator by taking possession; the lawyer needs a healthy retainer or access to money up front; and there needs to be tough action fast, before the victim is intimidated into quitting. Good luck.