Financial Abuse and Exploitation of Aging Persons, Spouses and Parents Using Threats, Undue Influence and Domination
A Checklist of Things to Look for and Do Before Initiating a Protective Guardianship Proceeding
A guardianship is considered an “absolutely necessary measure” to protect a frail, elderly person who needs assistance in making financial, legal, medical and other decisions. A guardianship can and has often been used as a sword (or a shield) to gain an advantage over other interested persons (generally family members) as well as the alleged incapacitated person. Please read the following guide to help you evaluate whether a guardianship, conservatorship or other protective proceedings should be filed in NJ to protect a frail or elderly NJ resident from financial exploitation, undue influence or fraud.
Beneficial Use of a Guardianship Proceeding to Stop the Financial Abuse and Exploitation of a Vulnerable Person
The Typical Fact Patterns Which Should Cause You to Conclude that there May be Claims of Abuse or Undue Influence
- An adult child who for whatever reason is helping himself or herself to their parent’s money. Often it is the “black sheep” child, the delinquent child, the “sponge all their life child” who attaches themselves to their parent(s), gains joint access to their parents’ bank accounts, gains the sympathy or guilt of their parents, and treats the parents’ funds as their own. They almost always rationalize their behavior or claim it is with their parents’ “permission”. Don’t believe it. The parent is overwhelmed, afraid or too meek to resist. In these situations, immediate action is necessary.
- A spouse (often in a second marriage and with the assistance of his/her children of a first marriage) dumps the second spouse in a nursing home and begins to withdraw large sum(s) of money or sells property and assets in secret and fails to keep the children of the institutional spouse (generally the children of the first marriage) informed in advance of decisions and actions being taken or about to be taken.
- The elderly person needs care and well-meaning “outsiders” such as a caretaker, neighbor(s), friend(s) or health aide(s) are intervening, resulting in a power struggle between these outsiders and family members.
- The elderly person manipulates family members or others by threatening to cut them out of his or her will or promises to leave certain family members or others a larger share if they agree to the desires of the incapacitated person.
- A health aide, caretaker or calculating adult child is assuming more and more authority over the vulnerable person and is likely taking advantage of them financially.
- The vulnerable adult is the subject of repeated calls to the County Adult Protective Services Agency or is brought to the hospital emergency room on several occasions due to lapse in care.
- The person who is assisting the vulnerable person with his or her finances refuses to disclose information to others based upon the alleged incapacitated person’s instructions not to disclose such information to others.
- The vulnerable adult has been making substantial gifts or the recipient of the gift(s) states that the elder wanted him or her to receive the gift.
If any of what I have detailed above is familiar to you, ACT NOW! If you don’t it WILL be too late in the future. I’ve been involved in countless cases where financial elder abuse has taken place and families failed to act in time. Call or email me today to come in and discuss your suspicions.
Assessing Whether or Not to Make a Claim of Abuse or Undue Influence Against Another Person
I have written extensively about the subject of undue influence. You will learn about this topic on my dedicated web page, Elder Abuse & Financial Exploitation, and when you’re done, if you feel undue influence is being exerted upon an aging person by his or her guardian, call or email me immediately!
- Has the suspected person received any lifetime gifts from the alleged incapacitated person recently or in the past?
- Is the beneficiary of the gift a fiduciary for the alleged incapacitated person, i.e., their trustee, power of attorney, guardian, or agent?
- Did the power of attorney or guardian acting as the power of attorney make any gifts to others? If so, was he or she specifically authorized by the written instrument to do so?
A power of attorney drafted after January 28, 2004 cannot be interpreted to authorize the attorney-in-fact or guardian or another to make a gift(s) unless the power of attorney or judgment of guardianship expressly authorizes such gifts. Moreover, a statement in a power of attorney authorizing the agent to generally perform all acts the principal could perform is not an authorization to make gratuitous transfers.
- If gifts were made by the attorney-in-fact and the power of attorney did not expressly authorize such gifts, then find out if the gifts were made prior to January 28, 2004? If so, can there still be a claim that the attorney-in-fact breached a fiduciary duty to the principal in making such gifts?
- Is the person a caregiver for the alleged incapacitated person?
- Will another person receive a larger inheritance than the others in the same degree of kinship?
It’s tough to call out a sibling, family member or long-time friend for alleged financial self-dealing or worse, financial exploitation of an aged parent, family member or neighbor. But sometimes you know you need to do something. I’ve given you some warning signs for you to look for as you contemplate your next action.
Legal Remedies Available to a Person Who Wants to Assert a Claim(s) of Abuse or Undue Influence Against Another
You can take immediate legal action. The longer you wait the more likely the theft and conversion will take place and larger amounts of money will vanish. Your legal rights include:
- Filing a complaint in the Superior Court of New Jersey seeking an injunction against further financial withdrawals and conversion of funds and resources.
- Requesting the appointment of a temporary guardian to protect the financial welfare of the vulnerable adult.
- Request the appointment of a geriatric care manager to supervise the life care planning for the person.
- Request an accounting. New Jersey court rules provide that a court “may, upon application of any heir or other next friend of the principal, require an attorney-in-fact acting within the powers delegated by the power-of-attorney, or is acting solely for the benefit of the principal to file an accounting.”
- Contact the County Prosecutor’s office.
- Call Adult Protective Services if the circumstances warrant the call.
Multi-jurisdictional disputes over guardianships are becoming more common. Thus far, relatively little published precedent exists in this regard in New Jersey. In an unpublished but still well publicized decision, the children pursued competing guardianship actions in New Jersey and Texas. The New Jersey Court ultimately concluded that it had primary jurisdiction and then ruled that the mother lacked capacity and proceeded to set aside her estate plan.
Where someone had misappropriated assets, either directly, as power of attorney, or through the misuse of jointly titled accounts, a guardianship proceeding can provide the means to recover the assets. Likewise, a guardianship action may also be instrumental in restoring the original beneficiary designations to the person’s financial accounts or otherwise return the situation to the prior status quo. In cases where a person has caused an alleged incapacitated persons’s estate plan to be altered, a guardianship proceeding can be helpful in gathering evidence of undue influence.
Besides the economic considerations of a contested guardianship action, such proceeding may be necessary on an emergent basis, where there exists substantial elder abuse involving physical or psychological harm. In these types of cases, the alleged incapacitated person may not be able to acknowledge the abuse or is unable to stop the abuse without outside assistance.
Fredrick P. Niemann Esq.
Do you suspect or have questions and a case involving elder financial abuse in New Jersey?
Contact Fredrick P. Niemann, a NJ elder abuse and financial abuse law attorney today by calling him toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.
He will sit and discuss your matter and help you evaluate whether an actionable case of elder abuse exists. Remember, all calls and discussions with Mr. Niemann are strictly confidential and privileged
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, A New Jersey Guardianship Attorney