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Preventing Financial Elder Abuse by Families  - LA County Legal Advice


Preventing Elder Financial abuse in Los Angeles is about a few things:  1) Preparation; 2) A little paranoia, mixed with restricting one's own rights to amend, withdraw, or revoke a trust, and making transfers of assets, and changes under court supervision, or under a professional's exclusive supervision; and 3) taking quick action, if it actually happens.

PREVENTATIVE ESTATE PLANNING PROTECTS AGAINST ELDER FINANCIAL ABUSE

Most of financial elder abuse happens in families, where one child has a sense of entitlement, or by a caregiver, or a recent spouse.   Sometimes, financial elder abuse happens at the hand of a caregiver.   Sometimes, the caregivers go very far, and become spouses to the elderly, and run up large sums of credit card debt.  A taking for wrongful use is elder abuse in California.  So, spending sprees on the elder's credit card may constitute the “wrongful taking” element of financial elder abuse purposes. Welf. and Inst. Code §15610.30(c).  Undue influence in changing someone's estate plan is also deemed elder financial abuse now.  

A little advance guidance can protect you from abuse by a family member, greedy adult child, and caregivers.   If you know you are volnurable, see an attorney now!

When elders prepare to prevent elder financial abuse, they often look to instruments that are either irrevocable, or that become irrevocable with a special trigger.   A special trigger may be an outside professional visiting to determine, if it is time to make the trust irrevocable.

But, sometimes, you cannnot restrict particular assets.   IRA accounts are particularly volunrable to financial elder abuse.  While a trust may protect other assets, IRA accounts are not trust assets and making a trust revocable or irrevocable does not affect the ira.   Financial institutions have recently become aware of such volunrability, and allow for the costumer to set restrictions on ira accounts, internally, so that the ira cannot be changed when there are certain conditions.   Also, they have become aware of attempts to draw large amounts of money from IRA accounts.   Beneficiary designations can be protected, when the consumer makes the beneficiary designation irrevocable.  Those take lots of extra effort to implement, but certainly can be used to protect the elder's money.

Restricting the exclusive method of amendment or revocation of the trust, as well as withdrawal of assets from the trust can be helpful in protecting senior citizens.   This requires special language in the trust to limit the right to amend, revoke or withdraw to an exclusive method, tied to the court, or another person, who is not the settlor. Probate Code §15401(a)(2); §15402. Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 886.

Qualified Personal Residence Trusts, and other irrevocable trust can also protect the elder's future finances.   These are complicated trusts and you should obtain advice about their consequences.

Because many times, caregivers attempt to marry the elder to overcome the presumption of undue influence, one could specifically omit transfers to a caregiver who becomes a spouse, and protect the trust from the pretermitted spouse rule be effectively inserting a provision that eliminates a caregiver who becomes a spouse later.   Probate Code §21611(a) provides that a new spouse shall not take under the omitted spouse rule if the decedent intentionally failed to provide for the spouse as expressed in the testamentary instrument.

There is a cost in elder protection planning, which is a loss of all control.  Giving up some control over the assets can help the elderly hold on to their money, in situations when family or caregivers act as predators.

Mina Sirkin is a probate attorney in Los Angeles.  As an attorney who handles financial elder abuse asset protection planning in Los Angeles, Ms. Sirkin is frequently speaks to groups regarding, regarding how to avoid greedy family members and caregivers in Los Angeles County, California.   We serve all of Los Angeles County, Woodland Hills, Glendale, Pasadena, and West Los Angeles areas. To reach us, call 818.340.4479, or
email: Info@sirkinLaw.com.

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