Protective Action You Can Take Now

Protective Action You Can Take Now to Prevent or Minimize the Chance(s) of an Elderly Person Being Abused, Neglected or Exploited

You may suspect a loved one is starting to fail, or possibly elder abuse is taking place but what can you do?  Anything?  The answer is a definite “yes”!  Certain preventive measures may be appropriate to minimize the chances that an elderly person will become a dangerous risk to himself/herself or a victim of financial and physical exploitation. Remember this, with elder abuse and financial exploitation time is not your friend and delaying your response may have devastating consequences. Here are some immediate and simple steps to take:

• Direct deposit Social Security checks. This is easy to arrange with the Social Security administration.  Call your local Social Security Administration Office for the forms and procedures you must complete. You can go online to the Social Security website found HERE which specifies the steps to take to become a “representative payee” for a vulnerable adult and safeguard their monthly social security or SSI check.
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• Create a joint bank account or establish a convenience checking/savings account so that you have banking authority and, equally important, have access to the person’s daily and monthly transactions with electronic access via the internet. You absolutely must get the predators name off the account and revoke their authority under an existing Power of Attorney, withdraw all of the joint funds and place these funds under your safekeeping but be careful how you act because you may then be accused by the predator of depriving the elderly person of his/her funds. Before you act you may want to speak to me personally so I can layout the process and explain in detail just what and how things should be done and in what order.
• Consider recommending the individual execute a new power of attorney (POA) appointing a reliable relative or friend as agent, who can also serve as the representative payee to handle the client’s Social Security and other public benefits or pension funds or establish a trust if the client has significant assets.  Selection of an individual as a power of attorney should be made with great care.  If a power of attorney is drafted, you may want to include provisions to minimize the chances of exploitation, such as limiting the amount of money that can be transferred by the agent, allowing transfers of money only into a trust or an account that benefits the elderly person, require regular written accountings and related documentation for transactions made under the power, or require that the principal be notified before a significant transaction is completed.  Not all documents need this level of detail but at least discuss it with your attorney. Consider drafting a contract, signed by the attorney-in-fact, that covers accountings, payment for services, documentation, and other precautions to limit the possibility of abuse.
• As clients age, increasing physical and cognitive frailty will follow. A family member, friend or “Trusted Advisors” can step into monitoring roles.  Here are some examples:  If a child is named as agent under a durable power of attorney, monitoring the transactions of the aging person is a vital role to protect the person and preserve family harmony and finances. The same applies when there is a revocable trust in place to protect aging persons. Children and other non-professional family members should consider monitoring the aging person especially when the aging person is acting as their own trustee. I call this a financial monitor. Reviewing records of past transactions and comparing them to the present performance of investments and expenditures may be useful to identify changes that warrant follow up investigation. If the amount of cash being withdrawn grows dramatically, it might be an indication of elder financial abuse, e.g., a home health aide walking the client to visit various ATMs, scam companies promising big winnings if the person sends them money, and the list goes on, then again (and hopefully) financial monitoring might simply establish that the person is increasing gifts to family or loved ones freely and voluntarily. It pays to know.

After exploitation has occurred, your options are limited.  Taking the above actions may help to minimize further exploitation.  You may want to consider filing criminal charges or civil proceedings against the perpetrator of the exploitation.  Theft is not limited to robbing a bank at gun point. (See page entitled “NJ Laws on Elder Abuse” found on this site; look under the Table of Contents) found on the Home Page.

Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation

We use a variety of tools such as powers of attorney and advance health care directives to carry out the goal of advance planning to put into place a plan for decision making if the person should lose the ability to make choices. The same tools used to empower agents and advisors to help make and carry out decisions, in the event of incapacity, can become tools of abuse and exploitation. The health care surrogate or proxy can start making health care decisions that are clearly not a reflection of the person. The agent under a power of attorney can mismanage or steal assets, empowered by the appointment as an agent.

Selecting Agents

The first step to minimize risk in advance planning is carefully selecting agents for health care, financial or personal decisions. Most families default the selection to a spouse, child, or other close family member. Individuals and families need to take time to discuss the responsibilities of the agent together. Some of the responsibilities of an agent include:

• Understanding the goals and values of the person;
• Making decisions as the person would;
• Safeguarding the person and their property;
• Avoiding conflicts of interest; and
• Acting as a fiduciary

Characteristics to Look for in an Agent or Proxy

Selecting an agent or proxy is a big decision. The client should know the person and feel comfortable that the person selected will be able to make decisions that reflect the wishes of the designator. Here are some of the characteristics I recommend to clients and families when selecting an agent or proxy:

• Trustworthy: if there is any doubt – name someone else
• Commitment: the agent should be committed to the person driven principles of supported decision making.
• Listener: active listening to all involved is needed for good decision making.
• Available: the agent needs to be nearby or easy to contact when decisions need to be made. The agent should also be over 18 and healthy enough to be available and act.
• Organized: the agent needs to keep good records, take care of tasks on time, and calendar needed actions.
• Emotional strength: health care and financial decisions can be very stressful. The agent needs to have the strength to make hard decisions.
• Diplomatic: the agent should be able to resolve conflict when disagreements arise between family members. The agent needs to be able to hear everyone out, explain the options, the reasons for the choice being made.

While it is impossible to predict exactly how an individual will act as the agent in real time, there are certain characteristics that are red flags to both the individual and the attorney when selecting an agent. Here are some characteristics the client may want to avoid when selecting an agent or proxy:

• A person who lacks emotional stability or strength
• Personal financial active problems (agents who steal money frequently do so because they need money)
• Someone in poor health
• Persons who are not easily available when needed

Drafting Health Care Directives: Discussing Health Care Values

The first step to assuring an advance health care directive is used to make health care decisions that reflect the values and goals of the person is careful selection of the agent as discussed above. The second step is a conversation between the person and the agent and other family members about health care goals and values. Health care values are deeply held personal beliefs about the kind of care a person wants, or does not want, and about what is most important in the person’s life. Health care goals are the desired outcome for treatment. Values are deeply held and long lasting, goals are formed at the time of illness or injury.

A common misconception with health care planning is that the person can dictate all future health care decisions to the agent well in advance. However, because the spectrum of health conditions is so incredibly broad, it is very difficult to leave specific treatment that are useful or effective. The directions commonly left in living wills about specific treatments are often difficult for the agent and health care practitioner to interpret. It is hard to tell when death is imminent; there can be disagreement if the person will ever regain consciousness. The agent should have a meaningful understanding of the person’s strongly held values. This understanding will provide much more useful guidance when it is time to decide.

The person and the agent should have these value conversations early and often. The conversation also be held between the person and all family members while the person can lead the discussion. This should help foster open communication between family members. If the person is eventually unable to make or communicate decisions, open communication between family members is a helpful practice to avoid bad choices by the health care proxy or agent.

Learn the Protective Actions You Can Take to Prevent or Minimize Elder Abuse and Exploitation

PROTECTIVE ACTION TO PREVENT OR MINIMIZE ELDER ABUSE

When an elderly person is a victim of domestic violence, the individual should consult New Jersey’s elder abuse and exploitation laws (see page title “NJ laws on Elder Abuse” found in this site). This page goes into significant detail on the NJ laws which govern elder abuse and exploitation. It may be possible to obtain a temporary restraining order or domestic violence injunction, or to commence a separate maintenance or divorce proceeding, depending upon the elderly person’s wishes.

Learn About A Protective Arrangement: A Really Different Type of Quasi-Guardianship Action to Protect an Incapacitated or Vulnerable Person

There is a seldom used but potentially effective alternative to guardianship which can address elder financial abuse and exploitation faster and with less focus on the mental competency of the victim. Consider the following:

A Guardianship action is filed when a person is incapacitated and cannot make decisions on their own. It requires somebody else to come in and make those personal, medical and/or financial decisions for him or her.  A guardianship proceeding is a court action to declare a person incapacitated (meaning not mentally sound) and then have another person appointed as the legal guardian of that person.  Sometimes (certainly not always), the process can be time consuming and costly depending on whether the proceeding is contested or not.  The law also disfavors the use of forced guardianships and prefers that the person declared incapacitated to have as much decision-making power as reasonably practical.

While a guardianship requires proof that the abused person is incapacitated, a protective proceeding does not.  What must be demonstrated is that the elderly person is subject to the influence of a predator (family member, “friend”, caregiver, spouse, etc.) and is being exploited and, therefore, needs protection.  Filing such a legal action does not require two doctors’ reports, medical proof and the other formalities of a guardianship or conservatorship proceeding.  But it does require some examples (proof) of exploitation and/or abuse that warrants a court’s protective order.

So, what if a loved one needs help and some sort of limited protective oversight over his or her finances to prevent them from being wasted, yet still the autonomy of the loved one to use his or her finances in a way he or she chooses?  The remedy is a “protective arrangement”.  The court is empowered to appoint a protective arrangement for an elderly and/or disabled and/or incapacitated person, or alleged incapacitated person if there is property owned by him or her that could be exploited, wasted or dissipated, or if funds are needed for the care and support of the person.  If this finding is made, the court can set up a protective arrangement to ensure that either the property is not wasted by the person, or that the accounts be set up with money to care for this person.

The court can order a variety of helpful protective arrangements if it is in the best interest of the person.  So, for example, the court can require the parties to set up a joint bank account and require the approval of both account holders to approve a transaction.  Requiring a house to be sold or restraining the person from mortgaging his/her property, can be ordered by the court.  The court can also order the person at risk to obtain life care services and support and set up a trust through which property can be held.  Even directing a person to execute a prenuptial agreement prior to getting married is quite possibly within the Court’s discretion if the above considerations are made.

The difference between a guardianship and a protective arrangement is that a guardian has full (or almost) complete control of his or her ward’s assets. In a protective arrangement a person generally understands what is going on around them but needs some oversight from another to protect some or all the assets that the person has.  The arrangement is less restrictive than a guardianship and covers only designated circumstances should they apply.  As with most things, consideration must be given before deciding what the best plan of action for your friend or loved one.

PROTECTIVE COMPLAINTS CAN BE QUITE EFFECTIVE.   It gets you into court quickly, it often intimidates and immediately stops predators from further stealing.  If you’re interested in discussing this option, I welcome you to call me toll-free at (855) 376-5291 or email me at fniemann@hnlawfirm.com.

Office of the Public Guardian and Adult Protective Services

An adult guardianship may be desirable or necessary for a victim who has lost capacity.  New Jersey provides for a “public guardianship,” that is, court appointment of a public official or agency to serve as guardian of an incompetent person, usually when no private person or agency is available or willing to assume this responsibility.  You may find that a public guardianship is the only route available to provide ongoing assistance if or when you are unable to maintain continued involvement or there are insufficient assets to pay for a professional guardian.  A guardian can be authorized to make legal, financial and health care decisions for the ward.  Depending on the terms of the guardianship, the guardian may be given decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions.  This is called a limited guardianship.  Especially important is the appointment of a guardian of the property which gives the guardian powers over the person’s finances including banking, social security, veteran’s benefits, paying bills, borrowing or loaning money and whatever to buy or sell real estate and stock accounts.

You can also visit the following page found on this site.  Click HERE read more about protective actions you can take now.

How a Guardianship Can Help Protect Against Elder Financial Abuse

Challenging Gifts Made Because of a Lack of Capacity, Financial Exploitation of an Older Individual Under New Jersey Elder Abuse Laws

What is Undue Influence and How Does it Apply to Elder Abuse and Financial Exploitation

Suspect elderly abuse like that described on this page?  Not sure what to do?  Then contact Fredrick P. Niemann, an experienced New Jersey elder abuse and financial exploitation attorney toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.

He welcomes your inquires and you will find him easy to discuss your concerns in confidence and in private.