As our nation teeters on the precipice of recession, there may be additional incentives for family members, especially siblings, to use attorneys to defraud a parent.
Siblings or other family members may be motivated to alienate elderly parents with the intent of gaining control of caretaking or financial decisions and ultimately commit fraud. Unfortunately, unwary attorneys are often conscripted into a bad actor’s plans under the premise that the attorney is needed to “help” the elder with a tough situation.
Sometimes attorneys find it difficult to believe a wealthy adult child intends to manipulate a parent to defraud his or her other siblings. Often the manipulation is fed by the adult child’s desire to control the parent’s social and financial situation and “stick it” to their siblings. Being able to access the parent’s money is simply the proverbial icing on the cake.
Look for Warning Signs
In general, you should see a red flag when an elder arrives in your office with someone, be it a caregiver, friend, or relative, and wants to make changes to a trust, will, power of attorney, or other estate planning or financial documents to favor someone who was not favored previously. Don’t take assertions that someone has stolen money from the elder on face value. Take an extra step and actually look at the bank accounts.
Adult children who are bad actors follow essentially the same pattern. They speak badly about their siblings or relatives to the parents, try to physically isolate the parent(s) from their siblings and relatives, and fail to communicate the parent’s needs and changing conditions to that sibling or relative. The adult child, not the parent, will contact the attorney and dictate the terms of the estate plan. The adult child may not be willing to leave the room to allow the parent to make any wanted changes. The changes requested may be significant, such as excluding a long-standing beneficiary or including a bad actor or other individuals who were not previously beneficiaries.
Evaluate Mental Capacity
Ensure the individual has the requisite mental capacity to make changes to estate planning documents.
Signs of Incapacity
(From the ABA Assessment of Older Adults with Diminished Capacity)
- Reliance on other family members to answer questions, such as the names of family members, the current addresses, or the reason for the meeting
- Short term memory loss
- Communication problems
- Comprehension problems
- Lack of mental flexibility / inability to handle changes
- Inability to perform simple calculations (subtracting 7 from 100 five times.)
- Disorientation with respect to time, place, or location
Protect Vulnerable Seniors
If you suspect that the senior lacks capacity to execute documents, request an evaluation from a neuropsychologist or licensed clinical social worker before performing any work. If you suspect that the senior is under the influence of a bad actor, consult adult protective services and advise family members to contact a qualified Elder Law Attorney.
Follow the Professional Rules of Conduct
Be sure to consult Rule 1.14 of the Georgia Rules of Professional Conduct and contact the Ethics Hotline with any questions you may have. Please download and consult the Second Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2021), available for no cost at https://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf
Weinberg Elder Law focuses its practice on protecting our most vulnerable and treasured populations. We help families find legal solutions to protect their loved ones from harm, and we will engage the courts to resolve disputes when their rights and well-being are threatened.