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Undue Influence: financial abuse of the elderly

Undue Influence

Unfortunately, as baby boomers began to reach retirement age, financial abuse of the elderly became a growth industry.  Fraudsters prey on the elderly because of their vulnerability, and the effects can be devastating to those who are too old, tired or confused to protect themselves.  If you suspect an elderly person is being exploited you do not have to be a close friend or relative to protect that person.  Your lack of a financial incentive adds to your credibility. There are many types of elder abuse and different possible signs to look for.  The focus here is undue influence and what you should do if you suspect an elderly person is being taken advantage of financially.  Mary Quinn’s article Undue influence and elder abuse: Recognition and intervention strategies (CE), published in the Journal of Geriatric Nursing, explains that “Undue influence is the substitution of one person’s will for the true desires of another.”  Undue influence is almost always associated with a breach of trust.

As a general rule, people – even though they may be elderly, sick and depressed – have the right to do what they want to with their property. The question is whether the benefactor is acting volitionally.  If you have reason for concern, you may want to determine whether the elder is independent and self-reliant or does he need help with activities of daily living?   Is someone else in control of his or her financial affairs?  Is there a power of attorney involved?   Other circumstances to look for include whether the suspected victim is getting independent advice?  Is he or she isolated from family, friends and outside activities?  Has an “advisor” benefited excessively from the elder?  Asset transfers or unusual transactions between a susceptible person and an advisor are highly suspect and may justify asking a court to appoint a conservator.

After death, only people with “standing” – generally defined to be those who would have benefitted but for the undue influence – are allowed to challenge a will or transaction involving a decedent.  Most often the suspicion of undue influence arises in connection with estates when family members learn of diminished assets or suspicious bequests in their loved ones’ will.  You might find that substantial assets passed outside the estate by survivorship clauses, beneficiary designations or gifts shortly before death.  Since you cannot ask the decedent, how do you investigate whether your loved one was exploited?  A potential starting point is a lawyer who drafted the will or document of conveyance. Lori A. Stiegel, Senior Attorney, ABA Commission on Law and Aging, in conjunction with Mary Joy Quinn, Director (ret.), Probate, San Francisco Superior Court addressed the lawyer’s obligation to protect the client from undue influence.  In the June 2017 Issue, Brief they pointed out that:

For many years, the ABA Commission on Law and Aging has urged lawyers to screen all older adults for elder abuse during initial interviews (“universal screening”), whether by telephone or in-person. Learning about risk factors and indicators of undue influence is necessary to screen effectively and provide competent services. Concerns about possible undue influence should affect a lawyer’s determination of who is the client, how to communicate with the client, and what advice and counsel should be provided. Case law recognizes that a key factor in assessing undue influence is whether the alleged victim truly had independent counsel.

You might want to determine whether the attorney who drafted the will had a long-standing relationship with the decedent or the favored beneficiary? Did the beneficiary play any part it procuring the gift or will?  Who witnessed the will and what were the surrounding circumstances?  A family recently approached me about the validity of a will that disinherited them in favor of a paramour.  I contacted the drafting attorney who sent me a video of the execution of the will. Upon watching the video it was clear that the decedent was free from undue influence.  I complimented my colleague for having protected his client’s estate from enduring what could have been expensive and protracted litigation.

Elder abuse is wrongful conduct that should be punished – not rewarded by the unjust enrichment of fraudsters.  If you are concerned, investigate and don’t hesitate to get professional advice.

 

Mobile Bar Association President Pete Mackey’s October Comments

You make a living by what you get. You make a life by what you live.

– Winston Churchill

Pete Mackey - BCM (Small)

Mobile Bar Association President Pete Mackey

October is PRO BONO MONTH. It got kicked off a few days early at the RED MASS last Friday. The message of the homily, as you might guess, was a lawyer’s duty to protect not just those who can afford our services, but those who cannot. That is also the message of the ALABAMA BAR ASSOCIATION. The preamble to the ALABAMA RULES OF PROFESSIONAL CONDUCT contains the following:

A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. They should, therefore, devote professional time and civic  influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

In South Alabama, lawyers have historically taken this role very seriously. Coordinating the effort is the SOUTH ALABAMA VOLUNTEER LAWYERS PROGRAM. Perhaps it stems from the helping hands given and received after hurricanes, or maybe living in an area that is a hot bed for high school and college football brings out our competitive spirit. Most likely it is both of those reasons and more – it has become part of the legal culture here.

Whatever – every lawyer in the MBA, as well as those in our neighboring counties that are a part of the SOUTH ALABAMA VOLUNTEER LAWYERS PROGRAM (Baldwin, Clarke and Washington) should be proud of what we are doing. The average participation rate for VLP programs nationwide is 20-25% of any particular bar’s members. Our participation rate is at 70%. We have 865 lawyers signed up as volunteers. Last year, 280 SAVLP members opened 848 files and made contact with or assisted 3,889 people total. Those are insane numbers. Notice that “billable hours” or “contingent fees” are not part of the equation. The SAVLP does not take on fee generating cases.

That is not something that just happens. It is a combination of the hard work by the MBA’S VOLUNTEER LAWYER’S PROGRAM COMMITTEE (present and past) and the good folks who administer the program. In an effort to dig a little deeper, and avoid the pile of paper on my desk, I sauntered through Bienville Square to the SAVLP office in the old Merchants Bank Tower. ARIANA MOORE is the executive director. Ariana, who grew up a few blocks from me in the Oakley Garden District, was enthusiastic about her role with the program and the program’s role for its clients. “We want the lawyers in our program to know how much we appreciate what they do. A lot of times, I feel like that does not come through.” She has a very strong feeling about the role that volunteer lawyers play and the effectiveness of their work.

“A lot of times, people do not have just one legal issue, they have a lot of legal issues. Being able to talk with a lawyer, even if it’s only about one or two of those issues, gives them one advocate to help them set a game plan to address all of their problems. A lot of our clients are hardworking people who, because they only make minimum wage, or are taking care of sick family members, lack a safety net. They need someone to help and our lawyers do that so well.”

ANDREA BREWINGTON, the only lawyer in the office, is the DIRECTOR OF LEGAL PROGRAMS. Presently, she is in charge of WILLS FOR HEROES and monthly clinics (in all four counties) on general legal advice, foreclosure avoidance and pro se guardianships. She has also run clinics in the past on bankruptcy and landlord/tenant issues, as well as other legal areas that their clients frequently need help with. She is in all four counties every month, coordinating with volunteer lawyers in each.

Though she enjoyed her time as a prosecutor in the Baldwin County District Attorney’s office, she has really found a home with the SAVLP:

“I get to help more people here. We see the missing links in people’s lives that are affecting their well- being. We are often able to do things to help fix those links and get them going again. It is so easy to miss two weeks of work between jobs and lose their home or have the transmission in their car go out and lose their job. Things that seem small to us are back breakers for them.”

JODI WHITE, the SAVLP’s intake coordinator, had her first connection with the program as a client. She got involved because she wanted to give back. Her pet peeve – she does not like the word “indigent”. Jodi has a lot of respect for the work that the lawyers do and notes that a lot of the solutions are non-legal ones. “Lawyers don’t realize that they are helping as much as they are when they do things like deeds or name changes. They may be little things, but they mean so much to the clients. Just having a lawyer on their side makes them feel special.” Right next door to Jodi sits MIKE DEGAN – the program assistant overseeing case management. Mike found his way to the program when his fiancé enrolled as a student at
USA Medical School. Mike is seeking a career in the non-profit field and feels like the SAVLP is a great place to start. He told me –“I think it is a great mission and the program does a lot of good for the community and beyond,”. He gets a lot of satisfaction from playing the role as the matchmaker — “clients come here thinking that we are lawyers and a law firm. We have to let them understand that they are not going to get help right away, but we are the people that can help them get help.” Mike’s mantra is equal justice for all.

Each year the SAVLP has at least one JESUIT VOLUNTEER. This year’s volunteer is MARY MIKKO from Traverse City, Michigan. Mary acts as intake assistant and just came to Mobile in July. I asked her if this job was what she envisioned before she started. She answered like a good Jesuit Volunteer would – “pretty much – we want to help everyone – we have big hearts – but we just can’t, and that hurts.” As an unrelated aside, if you live in Midtown or Downtown, the Jesuit Volunteers (there are usually 6 or 7 in Mobile each year) are baby sitters extraordinaire.

If you are one of the 865 who presently serve as volunteer lawyers, feel good about your role and spread the word. If you are not, please consider doing so. When you go in to the office on your volunteer day, tell Ariana and her staff how much you appreciate what they do. Many years ago a lawyer, now gone, gave me an interesting (and tongue in cheek) insight on pro bono work – “I don’t tell other lawyers how good it makes me feel because I want them to think that I am making a real sacrifice.” Perhaps he read Churchill.