A viable financial elder abuse legal claim must contain the following elements:
- An ascertainable person (also known as a “bad actor”) stole an elderly person’s property or financial assets.
- The elderly person is at least 65 years old.
- The bad actor stole the assets with the intent to unfairly influence, coerce or defraud the elderly person and to benefit themselves.
- The elderly person suffered significant financial harm.
- The bad person’s conduct was a substantial factor in causing the elderly person financial harm.
Legal Options if Your Elder Parent is Being Financially Abused
If you believe your living elderly parent or relative is a victim of financial abuse, your legal options depend on whether the elderly person has the mental capacity to make decisions about their own finances.
With Mental Capacity
If the elderly person can understand the nature of their own finances, only the elderly person being abused has the right to make the decision to pursue legal action against the bad actor. The elderly person can either choose to:
- Visit an estate planning attorney to change, amend, or revoke their current will, trust, power of attorney, power of appointment, agreement, transfer-on-death asset, or other estate planning instrument to disinherit the bad actor and/or remove the bad actor’s control over their assets; or,
- File a lawsuit against the bad actor for financial elder abuse. Only the elderly person who was financially harmed by the bad actor has the legal right (“legal standing”) to file a lawsuit pertaining to their own assets while the elderly person is living and is still the legal owner of their own assets.
Without Mental Capacity
If the elderly person suffers from severe cognitive impairment due to dementia, Alzheimer’s, stoke, or any other type of condition that affects the elderly person’s ability to make decisions about their own finances, the person who seeks to protect the assets must either:
- Review the terms of the elderly person’s will and/or trust and potentially consult with the elderly person’s estate planning attorney on how to follow the procedure established in the elderly person’s will and/or trust for appointing a new executor or trustee if/when the elderly person becomes incapacitated.
- If the elderly person, heirs and/or beneficiaries do not all agree to appointing a new trustee or executor, the person seeking to protect the elderly person from financial abuse would need to seek court intervention by filing a Conservatorship Petition to request a court order appointing the protector as conservator over the decedent’s financial affairs. Without a conservatorship order, the protector has no legal control over the elderly person’s assets. The protector (“Petitioner”) would need to gather evidence, including medical records and expert medical witness testimony, to prove the elderly person is mentally incapacitated to the court. The elderly person and other interested parties, including heirs, have the right to object in court to the conservatorship petition. A challenged (“contested”) conservatorship petition is a lawsuit which may take years to resolve.
When Should I Seek Legal Recourse?
The bottom line: unless the elderly victim of financial abuse is mentally incapacitated, the elderly person must take the initiative themselves to either change their estate plan, revoke the bad actor’s access to their assets, disinherit the bad actor(s), and/or to pursue legal recourse if needed.
Heirs and beneficiaries should not try to influence an elderly person’s decisions regarding who has control of their estate plan or assets; any perceived influence could expose a well-meaning heir or beneficiary to potential liability for subsequent undue influence claims in court. The heirs and beneficiaries have no legal right to sue on behalf of the elderly person’s assets until the elderly person’s will or trust becomes irrevocable, and the heirs become legally entitled to the assets, which usually occurs at the death of the inheritance grantor. If you believe you are a victim of financial elder abuse or undue influence pertaining to your estate plan, consult with an experienced trust and estate litigation firm by calling (858) 209-2309 for a free case evaluation.
