Elder Law Report
Elder Law Report
Elder Abuse: Recognizing the Warning Signs and Taking Legal Action
The silent epidemic of elder abuse affects countless seniors, yet many families don't recognize the warning signs until significant harm has occurred. Attorneys Brendan Begley and Jordan McIntyre tackle this critical issue head-on, revealing how cognitive decline creates vulnerability and opens the door to exploitation.
Financial exploitation stands out as the fastest-growing form of elder abuse, with seniors losing billions annually to scammers, unethical caregivers, and even family members. The attorneys explain the sobering reality that willingness doesn't equal consent when cognitive impairment is involved—seniors may sign over deeds or write checks without truly understanding the consequences or remembering previous transactions.
What makes this issue particularly heartbreaking are the risk factors that compound vulnerability. Beyond cognitive decline, social isolation emerges as perhaps the most insidious threat, where seniors knowingly accept exploitation simply to maintain human connection. The podcast reveals surprising forms of abuse that often go unrecognized, including misuse of the very legal systems designed to protect vulnerable adults, like unnecessary guardianship proceedings when less restrictive alternatives exist.
The attorneys offer practical solutions for both prevention and remedy. While Adult Protective Services and litigation can address exploitation after it occurs, establishing a comprehensive estate plan before cognitive issues arise provides the strongest protection. A properly executed power of attorney grants trusted individuals not just decision-making authority but legal standing to intervene if exploitation occurs—a critical distinction many families discover too late.
Ready to protect yourself or your loved ones? Schedule a free consultation today by calling 888-999-6600 or visiting mcintyrederlaw.com and take the first step toward securing peace of mind for your family's future.
Please don't wait till it's too late. Call McIntyre Elder Law. Hello and good morning. I'm Brendan Begley, attorney and partner with McIntyre Elder Law, and I'm joined by Jordan McIntyre. Hey Jordan, hey guys, all right, and today we want to talk about the risk factors that are presented with anyone who's aging. They have a risk of cognitive decline and that is accompanied by a risk of exploitation, to talk about the opportunity that folks have to exploit those who may have diminished capacity. And you know, the term that's thrown around with respect to this is elder abuse, and that's a very important topic, something that we run into all the time, something that we want to battle all the time, and it may come in forms that look innocuous or are counterintuitive, but certainly present themselves. So let's talk about that, jordan. So what is elder abuse and what are the risk factors that you look for to determine whether or not there's a good opportunity to have elder abuse presented in a certain situation?
Jordan McIntyre:Legally, elder abuse refers to any intentional or negligent act that causes harm or risk of harm to an older adult. This typically will happen at home or it can happen in a care facility or even at the hands of trusted individuals like family members or caregivers. And it's not just physical abuse. It can typically be financial exploitation, and I think that's one of the fastest growing forms of elder abuse. You have scammers, unethical caregivers or family members stealing money or even pressuring somebody into signing a deed when they didn't really want to sign that deed over or weren't in the right frame of mind to sign that deed. And I think there's some key risk factors that will make an individual, an elderly individual, more vulnerable. You'll start to have cognitive decline. Right, people get diagnosed with dementia or Alzheimer's, and then they have impaired judgment, so you're easier to manipulate.
Brenton Begley:Yeah, I see situations where they're like well, you know, mom was given all this money to you know, son I mean she willingly, you know, signed the checks. Or she, she, she willingly, you know, went to the bank and got this money out. She willingly, you know, went to the bank and got this money out. You know, can there still be elder abuse if the person is willingly transferring the funds for their property.
Jordan McIntyre:Yes, because just because you did something, that doesn't mean that you were legally in the frame of mind to do that Right, or understood, I guess, the intent of the transfer, the disposition of your property, or I guess we call the nature of the bounty right, what you're transferring.
Brenton Begley:Yeah, yeah, I mean, you know. There's time and time again you can have an individual who is transferring assets, but maybe not aware of what assets they own, what it means the fact that they may be depriving other individuals of an inheritance, and how much you know. Another thing is it can be hard with someone with diminished capacity to keep track of how much they've given over time as well.
Jordan McIntyre:Yeah, and when we do litigation we have to pull those bank records and see kind of what stands out right, what transactions don't align with what someone would typically do, especially with those powers of attorneys.
Brenton Begley:Yeah, like there's a lot of ATM withdrawals. What's going on? Yeah, yeah. What other misactors are there?
Jordan McIntyre:Yeah, yeah. What other misactors are there? They're their primary caretaker, but they're really abusing them and taking advantage of them and no one's really aware of it because they're isolated. When elderly individuals start to have physical disabilities and they're reliant and isolated, so I guess physical disabilities would be another risk factor. Any type of history of family conflict, preexisting brain relationships, can lead to financial or emotional abuse. So that's what stands out to me.
Brenton Begley:Yeah, yeah, you know the isolation is a big one, especially if they have diminished capacity, especially if they've lost a loved one, and that has a result in their isolation. You know, people get lonely, they, and they're more susceptible to exploitation just to keep people around. You know that's one of the risk factors and and whether or not there is undue influence on a, on a will or something like that, because you have people who are lonely and they have somebody enter their lives and that person may not have the best of intentions and they're providing companionship, but they have ulterior motives. And that can be an incredibly difficult situation, especially because sometimes the individual subject to exploitation knows that that person has ulterior motives, but it's so lonely and isolated that they want to keep that person in their lives because they have some sort of dependence on them, and sometimes they'll develop an actual dependence where they need that person as a pseudo caretaker and they basically, you know, have an agreement that if I keep you in the will or in my estate plan, you won't leave me and you know I won't have anybody to help. You know, bring me places or bring me groceries, things like that. So that can be a really tough situation, another one that I've seen quite a bit. That is counterintuitive sometimes, when you at first glance you think that you know this is in the best interest of somebody with diminished capacity and so it makes it that much more insidious is the abuse of the system. Ok, that's another one that we see quite a bit.
Brenton Begley:So, for example, let's say that you have a situation where there is a power of attorney in place. Mom makes daughter power of attorney good job as power of attorney and is, you know, providing for everything that mom needs? Is you know taking care of, you know, usual expenses? Maybe had to pay themselves back for a couple of things, maybe had to make a couple of big purchases for mom. And then brother steps in and doesn't like what he sees. He sees the billing statement. He's like my God, you paid X amount of dollars for you know this for mom's house that you know you're going to inherit. So I think you did it for yourself, that that sort of thing.
Brenton Begley:And so because now brother, you know he wants control, you know he's trying to find any reason why you know daughter's not doing a good job. So he goes after guardianship mom, you know, and that process can be a hugely beneficial process if guardianship is necessary, but if there's power of attorney in place, there's a, an alternative, what is referred to in the laws, the least restrictive alternative then you know that should be pursued first. And if there is a viable alternative to guardianship, then it's important to have that relationship maintained in place instead of going the extreme route of having that individual, like mom in this situation, adjudicated and competent, having an individual appointed to make her decisions for her, appointed to make her decisions for her. So you know, brother, it may appear that he's acting in mother's best interest, but really, you know, mother made that choice before she developed any cognitive issues, before she lacked capacity. She made the decision to make daughter her power of attorney and daughter's acting that way.
Brenton Begley:And so you know the system can certainly be abused to try to maintain control over the assets of somebody or gain control over the assets of somebody with diminished capacity too, and that's a that can be a scary thing, that you know the system is built in a way that that can happen. But you know people need to be aware of that and that's why it's incredibly important to do estate planning in the first place. So that leads me to the next thing is what can be done to help not only prevent but rectify the opportunity for elder abuse.
Jordan McIntyre:Well, the system will sometimes step in right. You'll have adult protective services if they fiduciary duty fraud or negligence. I guess, additionally, with deeds that are signed over improperly or any type of improper estate planning, we can do declaratory judgment actions to get them set aside right, they get them and set aside gotcha.
Brenton Begley:So to rectify some of these opportunities for elder abuse, you can. You can get in and actually use the system. So there's, you know, protections built in. You have the department of health and human services. Um, you know, adult protective services who can do an investigation? Certainly there's, you know, also the police. They can do an investigation if there was actual crime that was committed and then civilly we can seek to rectify whatever happened. So if it was a taking of assets, like a conversion of money, we can sue to get that back. If it was legal documents that were executed transferring assets, then we can sue to set those aside. Definitely, through the litigation process we can rectify those situations. Now what can we do to also prevent that from happening in the first place?
Jordan McIntyre:Right Setting up the general and durable power of attorney really as a protective legal measure for yourself with someone you trust. Right Having an agent you trust who will monitor you, monitor financial accounts and try to help you If you do get to a place where you have more difficulty making decisions and preventing yourself from any type of elder abuse. Right Appoint a child or someone you trust to be your agent under the general durable power of attorney and that will really be a protective legal measure that we can help you with to avoid these types of situations.
Brenton Begley:That's going to also make sure that someone can sue on your behalf if they see, you know, some type of exploitation happening. One of the difficulties you have is you know someone steps in and exploits mom. Who can sue if mom cannot protect herself? Well, without someone appointed under a general durable power of attorney that another individual would not have the legal standing. The primary constitutional requisite to bring a lawsuit on behalf of mom, because you know to bring a lawsuit on behalf of mom, because you know essential constitutional principle of bringing a lawsuit is the lawsuit has to be brought in the name of the real party in interest. So the real property party in interest if mom gets scammed or if mom gets exploited is mom. And so you know, without having a general durable power of attorney, there's no other way to step in the mom's shoes and act on her behalf legally without getting guardianship again an extreme measure. So you're right, jordan, having that general durable power of attorney in place is not only going to ensure that you've named somebody who can monitor what's going on, has the power to step in and look at bank statements and ask questions, but also has the legal authority to hold someone who may exploit mom accountable.
Brenton Begley:You know there are many things that can be done in the estate planning stage to prevent exploitation and abuse down the road. That is your best. You know. First line of defense is putting a good estate plan in place and communicating with your loved ones on what your wishes are, making that known. So if that, you know, ever changes based off of somebody's influence, you know folks know that that is not your choice and that's, you know, the result of someone coming in and having that undue influence on you. So if you have questions about how to protect yourself from things like this, if you have a family member that has gone through any type of exploitation or elder abuse and you want to seek some way to rectify that, we can help through our litigation process. And if you want to prevent yourself or a loved one from ever facing something like this in the future, we can also help with that through estate planning.
Brenton Begley:Jordan, thank you. This has been the Elder Law Report. Okay, it's very informative. If you have questions about how this works, you can give us a call 704-259-7040, or you can visit our website, mcelderlawcom, to schedule your free consultation today. Thanks again, jordan. See you guys. Bye.