These 7 Clusters Of elder exploitation are certainly applicably relevant for some Coeur d’Alene and Spokane Caretakers, Estate Planning Attorneys and Guardians.

Elder Exploitation Crimes in Seven Clusters:

The document separates the Financial Exploitation of Seniors into Seven Clusters. They are:

1. Theft;

2. Scams;

3. Coercion;

4. Financial Exploitation;

5. Signs of Possible Financial Abuse;

6. Financial Entitlement; and

7. Money Management Difficulties.

A senior or his or her family member who suspects financial elder abuse may review the Statements associated with the Seven Clusters. The chart provided in the 2009 study is worthy of interest. While the Financial Exploitation chart is helpful, it is important to put it into context when considering Northern CA trust and estate litigation.

1. Undue Influence Law. California’s updated definition of undue influence. See Welfare & Institutions Code Section 15610.70;

2. Coercion is needed. Remember that unfairness is not enough. Cluster 3 below identifies some common activities that make up coercion.

3. Burden of Proof. The burden of proof may shift to the alleged abuser requiring that abuser prove that he or she did not exercise undue influence over the senior. The three elements that the plaintiff must demonstrate to make the legal evidence shift are: a. A confidential relationship between the senior and suspected abuser; b. The abuser was an active party in forming the senior’s will or trust. c. The abuser unduly benefitted from the senior’s new estate arrangement.

4. Susceptibility. The senior’s mental condition is a critical component when proving undue influence. The senior victim must be susceptible to manipulation by the wrongdoer – in other words, in a weakened mental state. The California Jury Instructions explaining susceptibility (vulnerability) include (but are not limited to) “incapacity/illness/disability/injury/age/education/impaired mental abilities/emotional distress/isolation/ [or] dependency.”

The Seven Clusters of elder financial exploitation is replicated below. So let us look at the first cluster: Cluster 1: Theft 1. Trusted other steals from senior. 2. Trustee misuses ATM card or credit cards belonging to the senior. 3. Trusted other takes prized belongings (jewelry) without permission. 4. Items are substituted within the senior’s home by a trusted other (high level items with lower level items). 5. Caregiver overcharges for their services. 6. Trusted other agrees to do work for the senior, takes their money, but does not perform the task. 7. Trusted other steals identity of senior or helps someone else steal the identity of the senior. 8. Fiduciary uses money on own behalf instead of the seniors benefit. 9. Unauthorized withdrawals from senior’s bank account. 10. Senior’s attorney misappropriates funds. 11. Deprivation of services to senior to use money for inappropriate purposes. 12. Someone sells senior’s property without his or her permission. 13. Coercion to sign contracts. 14. Trusted other handles senior’s resources inadequately. 15. Care of senior is not commensurate with the available resources. 16. Senior feels cheated after someone sells something to him or her. 17. Senior is tricked into buying something that they now regret buying. 18. Suspicious signatures on checks or other documents Cluster 2: Scams 1. Institution commits fraud (overbilling and under billing) using seniors identifying information (such as social security number). 2. Senior pays for work and is scammed or ripped off. 3. Scams that involve giving to bogus charities. 4. An institution affiliated with the senior misuses his or her funds. Cluster 3: Coercion 1. Trusted other takes advantage of cultural or family expectations to obtain seniors resources. 2. Trusted other exploits senior’s alcoholism or drug dependency to get money. 3. Trusted other forces senior to sign legal documents. 4. Forcing child rearing and cost of child care on elders/grandparents raising/support grandkids. 5. Senior is pressured to co-sign a loan for a trusted other who has no ability to repay the loan. 6. Trusted other uses pressure, intimidation, or punishment to obtain access to resources belonging to the senior. 7. Senior is brainwashed by trusted other and makes financial decisions they would not normally make. 8. Senior lets trusted other spend some of their money on themselves, but the senior does not like it. 9. Trusted other says senior should give them money because they gave money to a sibling or other relative. 10. Trusted other promises companionship in exchange for senior’s money. 11. Senior persuaded to give others money or personal property. 12. Senior lets caregiver spend their money on him/herself because they are fearful of them. 13. Senior consents to let caregiver spend some of their money on themselves, but the senior does not like it. Cluster 4: Financial Exploitation 1. Trusted other says they are buying something for the senior, but it is really for their own use. 2. Trusted other tricks senior into signing legal documents. 3. Trusted other prevents or deters senior from spending money in an effort to maximize their inheritance. 4. Trusted other uses some of the senior’s resources for his or her own purposes with the permission of the senior. 5. Trusted other borrows money from a senior but does not pay it back. 6. Senior pays money so they can stay in the home but then are made to leave. 7. Trusted other convinces senior to turn title of home over to them and then sells house and keeps money. 8. In-home caregiver promising lifetime care for the senior, but then does not deliver care. 9. Trusted other misuses funds primarily allocated for the seniors care. 10. Trusted other misuses elder’s power of attorney or guardianship. 11. Senior gives adult child money but frequently does not get back change or not all the change. 12. Trusted other misuse of funds allocated for the seniors care. 13. Trust other allows senior to give them large sums of cash as a gift, or buy them cars or homes. 14. Someone takes advantage of senior’s weakness to get a hold of his or her resources such as a house, car, or money. 15. Trusted other handles senior’s resources irresponsibly (e.g., gambling, illegal activities). 16. Senior is tricked by trusted other into selling valuable possession. 17. Trusted other says they are buying something for the senior, but it is really for their own use. Cluster 5: Signs of Possible Financial Abuse 1. Senior frequently writes out checks made out to cash. 2. Senior has recent beneficiary changes in a will or insurance policy. 3. Trusted other commingles his/her funds with those of the senior. 4. Trusted other will not give accounting of how senior’s resources have been used. 5. The senior signs over their will to a neighbor or friend. 6. Senior makes excuses for adult child. 7. Trusted other is financially dependent on the senior. 8. Senior has unusual activity in his or her bank accounts. 9. Family members frequently fight over senior’s money. 10. Sudden changes in senior’s financial management (titles are changed, retirements or investments cashed in). 11. Senior’s relationship of trust with someone includes an element of dependency. 12. Senior changes long time providers (bankers, etc.). 13. Trust other refuses to change living arrangements because finances coming from the senior contribute to the household. 14. Senior signs documents without understanding the nature of transaction. 15. Trusted other has senior add them to bank account as signatory. 16. Changes occur in senior’s will or trust in favor of only 1 family member or other individual. 17. Trusted other plans the senior’s budget without their input. 18. Trusted other refuses to give accounting of spending to the senior. Cluster 6: Financial Entitlement 1. Someone lives with the senior, but refuses to pay his or her share of expenses. 2. Trusted other feels entitled to use senior’s money for him/herself. 3. Trusted other gives implausible explanations for spending senior’s money. 4. Senior is talked into making investments that are not in the senior’s best interest. Cluster 7: Money Management Difficulties 1. Senior has trouble saving money for something expensive. 2. Senior is unable to manage money independently. 3. Senior has serious problems due to poor money management. 4. Senior presents with financial problems or need. 5. Senior has some trouble budgeting, but is able to manage money without help.

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Elder Estate Planning Abuse Public Safety & Awareness Blog

OVERVIEW

 

Summary Definitions of Idaho Code §§ 18-1505 and 39-5302 (2000). Refer to dates annotated with criteria listed below for specific recorded evidence, witness or documented account.

“Abuse” under § 39-5302 and § 18-1505 means intentional or negligent infliction of physical pain, injury, or mental injury (intentional isolation of family members is emotional abuse/mental injury).

“Neglect” under § 39-5302 includes self-neglect and means the failure of a caretaker to provide food, clothing, shelter, or medical care reasonably necessary to sustain the life and health of a vulnerable adult, or the failure of a vulnerable adult to provide those services for himself (not taking care receiver to Hospital after she has a Heart Attack is Neglect see 4/2015 dates below).

“Neglect” under § 18-1505 means failure of a caretaker to provide food, clothing, shelter, or medical care to a vulnerable adult, in such a manner as to jeopardize the life, health and safety of the vulnerable adult (serving alcohol daily to care receiver against first doctors orders is neglect when alcohol is a life endangering toxic poison due to alcoholic cardiomyopathy).

“Exploitation” under § 39-5302 and § 18-1505 means an action which may include, but is not limited to, the misuse of a vulnerable adult’s funds, property, or resources by another person for profit or advantage (taking monies, lying to change Will and taking a persons “sole” revocability and amenability rights on their assets via Trust document chanceries drafted while client/care receiver is ill and intentionally isolated is exploitation).

“Vulnerable adult” under § 39-5302 and § 18-1505 means a person 18 years of age or older who is unable to protect himself from abuse, neglect ,or exploitation due to physical or mental impairment which affects the person’s judgment or behavior to the extent that he lacks sufficient understanding or capacity to make or communicate or implement decisions regarding his person.

“Caretaker” under § 39-5302 and § 18-1505 means any individual or institution that is responsible by relationship, contract, or court order to provide food, shelter, or clothing, medical or other life-sustaining necessities to a vulnerable adult.

“Emotional Duress” Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage )[1] is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted the emotional distress by behaving in a way that was “extreme and outrageous”.[2]

§ 15-12-116. JUDICIAL RELIEF – POA Abuse Remedy

§ 18-7906. (MENANCING) – Stalking in the second degree

§ 478-101 COLLUSUION – Anti-trust Act

Related Acts/violations- The Elder Abuse Act defines “neglect” as: The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

Those in Legal Confidential Relations with Dorothy since her 3/8/15 illness, physical incapacity, memory imparments (diagnosed MCI) and related vulnerability repeatedly violated Idaho Code(s): § 18-1505, § 39-5302, POA-Trustee adherence to Fiduciary Laws, I.R.P.C Rule(s) 1.1, 1.4, 1.8, 1.14, 1.16, 4.1, 4.2, and 4.4 and Circular 230; Section 10.5.

Self-neglect often accompanies dementia and mental health problems in older people it constitutes a risk factor for or sign of elder abuse and neglect inflicted by others—in effect, a forensic marker. Self-neglect may be a risk factor in that it makes victims more vulnerable to and less able to ward off mistreatment by others who might prey on them. Similarly, as capacity for self-care decreases, dependence on others increases, and if potential caregivers are either unable or unwilling to provide assistance, then the risk for being abused and neglected by caregivers increases. Conversely, someone who has been victimized by abuse or neglect may become depressed and in turn lose the desire or capacity for self-care. Thus, self-neglect also may be a forensic marker that abuse or neglect has been committed by another person.

Where such neglect is proven by clear and convincing evidence, and the defendant has been guilty of recklessness, oppression, fraud or malice in the commission of the neglect, the plaintiff may recover attorney’s fees and costs, and other heightened remedies. In other words, the Act describes (1) elder abuse, and (2) reckless, oppressive, fraudulent and/or malicious elder abuse. Only for the second category is a plaintiff entitled to the heightened remedies under the Act.

Dorothy’s Financial & Contractual Capacity: Dorothy was obviously not aware of, nor informed o,f all the negative consequences such as; 1) Being unaware of Durable POA active status during Trust Drafting of 2) exploitive Majority-Ruled Revocable Trust with 3) Canadians as Trustees on domestic Trust, 4) allocating her Will Disposition to exploitive Trustees who committed 5) breach of duties via 6) Fraud, 7) Mediation Deception & 8) substantial self-dealing while not having any 9) duty of care to fulfill her long-term intentions on the legal documents she had been signing since 10) her illness, memory-impairments and dependence on 11) untrustworthy confidential relationships & their inherit conflict of interest via the many roles/responsibilities/liabilities of such multiple positions of Trust: Caretaker/POA/Trustee also being an heir/benficary & Estate Planning Attorney/Limited Financial POA – G/C Attorney working in collusion with Caretaker/POA/Beneficaries/Heirs.

Contractual capacity in general is not as precisely defined as testamentary capacity. “Statutes and court decisions have done little to move beyond the vaguest description of general competence” (p. 221) (2) “Usually individuals are considered competent to contract if they understand the nature of the contract and its consequences” (p. 216). (3) To make a valid contract, a person must know what he or she is doing, its meaning, and its consequences.

The 8 states ranked lowest in the Elder Protection Statutes (WalletHub study) are:

South Carolina: 12.49.
Wyoming: 18.18.
California: 18.93.
Rhode Island: 28.31.
South Dakota: 28.37.
New Jersey: 29.72.
North Dakota: 33.61.
Idaho: 34.70.

Undue Influence Cases in Idaho

“In Idaho, undue influence is recognized where sufficient evidence has been presented that indicates a testator’s (testatrix’s) free agency has been overcome by that of another.” In re Estate of Roll, 115 Idaho 797, 799, 770 P.2d 806, 808 (1989). “[A] rebuttable presumption of undue influence is created where a beneficiary of the testator’s will is also a fiduciary of the testator.” In re Estate of Conway, 152 Idaho 933, 939, 277 P.3d 380, 386 (2012). Once the presumption is applied, the proponent of the instrument bears the burden of rebutting the presumption.

To rebut the presumption, the proponent must come forward with that quantum of evidence that tends to show that no undue influence existed. Once that burden has been met, the matter becomes one for the trier of fact. The existence of undue influence will be determined accordingly, and on appeal such determination will only be disturbed if not supported by substantial, competent evidence.
115 Idaho at 799, 770 P.2d at 808 (citing King v. MacDonald, 90 Idaho 272, 280, 410 P.2d 969, 973 (1965)).
In Estate of Conway, this Court discussed the application of the presumption. There, a niece of the testator challenged her aunt’s will as being the product of undue influence. 152 Idaho at 936, 277 P.3d at 383. She argued that the presumption of undue influence was triggered because one of the will’s beneficiaries was also the guardian of the testator. Id. at 939, 277 P.3d at 386. Although the trial court erred when it found that the beneficiary in question was a co-guardian, this Court held that such a finding would not affect the presumption, stating “[t]here is nothing in this Court’s jurisprudence to suggest that the presumption of undue influence is affected by the particular nature of the fiduciary relationship.”

The Third Restatement of Property explains that “[a] donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.” Restatement (Third) of Property (Wills & Don. Trans.) § 8.3 (2003). A comment to this section of the Restatement discusses when a presumption of undue influence will arise. “A presumption of undue influence arises if the alleged wrongdoer was in a confidential relationship with the donor and there were suspicious circumstances surrounding the preparation, formulation, or execution of the donative transfer․.” Id. Comment