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