Initiating a Guardianship or Protective Action to Safeguard Against Elder Financial Abuse Using Undue Influence and Domination
WHY AND WHEN SHOULD A GUARDIANSHIP OR CONSERVATORSHIP ACTION BE TAKEN
Where someone has personally misappropriated assets, either directly as a power of attorney, or through the misuse of jointly titled accounts, etc., a guardianship proceeding can provide a legal means to recover the assets. In addition, a guardianship action can restore the original beneficiary designations to the person’s financial accounts and return everything to the status quo. In cases where a person has caused an incapacitated person’s estate plan to be altered, a guardianship proceeding can be helpful in gathering evidence of undue influence and other legal causes of action to rectify the wrongdoing.
Besides the economic considerations involved when filing for guardianship it may be equally necessary (on an emergent basis), to take protective action where there exists substantial elder abuse involving physical or psychological harm. In these types of cases, the alleged incapacitated person may or may not be able to acknowledge the abuse or is unable to stop the abuse without outside assistance.
How a Guardianship Can Help Protect Against Elder Financial Abuse
Warning Signs of Elder Abuse or Undue Influence Justifying a Guardianship
There are generally warning signs virtually all of us can recognize that alert us to the fact “something isn’t right”. When something isn’t right with an elderly person it often means deteriorating health and/or vulnerability to the influence of others. The outcomes are tragic, often heartbreaking, and many times sad. So, let’s look at the warning signs of elder abuse. If you recognize any of these, consider calling me today. Time is not your friend, or that of the elderly victim.
- A spouse (often in a second marriage and with the assistance of his/her children by the first marriage) dumps the 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 is frail and feeble and needs care. A well-meaning “outsider” such as a neighbor, friend or health aide intervenes, resulting in a power struggle between these outsiders and family members. Often, there are no family members living close to the elderly person, making them vulnerable to the nice neighbor down the street.
- 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 of the estate if they agree to the desires of the alleged incapacitated person.
- A vulnerable elderly person is the subject of repeated calls to Adult Protective Services and/or is brought to the hospital emergency room on several or more occasions due to lapse in care, a fall or other reasons.
- The person who is assisting the vulnerable adult 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 anyone.
- The vulnerable adult has been making frequent and/or substantial gifts to one or more persons and the recipient of the gift(s) states that the elderly person wanted him or her to receive the gift.
- Telephone scammers start repeatedly calling the home claiming the elderly person is the winner of some contest which requires the payment of some donation in return for the substantial prize.
Assessing Whether or Not to File for Guardianship or a “Protective Proceeding”
If you answer these questions “yes” or “probably” then you have elder financial abuse right in front of you. It’s time to act!
- Has the person received any significant lifetime gifts from the alleged incapacitated person?
- Is the beneficiary of the gift a fiduciary for the alleged incapacitated person, i.e., trustee, power of attorney, guardian, agent?
- Did the Power of Attorney, Guardian acting as attorney-in-fact, make any gifts? 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 another to make a gift(s) unless the power of attorney 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.
- Were gifts were made by the attorney-in-fact and the power of attorney did not expressly authorize such gifts 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?
Legal Remedies Available to a Person Who Wants to Assert a Claim(s) of Abuse or Undue Influence Against Another and Obtain Guardianship
- File a “Protective Action” complaint with the Superior Court. It’s a potentially powerful option. See the page “Protective Action You Can Take Now” to learn more.
- Seek an injunction against the abusive conduct and/or exploitation
- Request the appointment of a temporary guardian.
- Request the appointment of a geriatric care manager.
- 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.
- Apply for guardianship.
GIFTS BETWEEN A GUARDIAN AND HIS OR HER WARD
A very strong presumption exists against the validity of a gift(s) made between an incapacitated person to his or her guardian or power of attorney. The law places a heavy burden on the fiduciary to show the absence of undue influence, diminished capacity and other factors which may adversely impact the gift being made voluntarily. If a gift is being contemplated, it is strongly suggested that careful planning and proof of independent and voluntary decision making by the ward be established. If “gifts” have already been made and you consider yourself to be the victim of a predatory guardian that has deprived you of the value of your property, you should immediately contact us. Chances are we can successfully challenge it.
GIFTS BY A VICTIM TO A GUARDIAN AND CONSERVATOR OUTSIDE OF NEW JERSEY
A guardianship proceeding often is considered a “last ditch measure” to protect an alleged incapacitated person who needs assistance in making financial, legal, medical and other decisions. It can and often is used as a sword or a shield to gain an advantage over other interested parties as well as the alleged incapacitated person. What are the risks and benefits to the person bringing the guardianship action?
Have questions or a case involving elder financial abuse in New Jersey by a guardian, power of attorney or an abusive person, contact Fredrick P. Niemann, a NJ elder abuse and financial abuse law attorney toll-free at (855) 376-5291 or email him at firstname.lastname@example.org.
He will sit and discuss your case and help you evaluate whether an actionable case of elder abuse exists.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Abuse Attorney