Recognizing Signs of Elder Abuse (and Traits of Elder Abusers)

86b95383-d007-419d-87da-098523bf85f9My goal in this blog post is to discuss character traits of elder abusers so that you can recognize them and hopefully protect yourself, your family, and your friends. I’ve handled over 100 estate disputes, and in a sizeable number of those cases, elder abusers committed an array of unethical actions including isolating, threatening, and pressuring elderly people to change their estate plans.

I previously wrote a lengthy blog post that discussed the signs of undue influence of elders. That blog post can be found by clicking here. By contrast, this blog post focuses on the character traits of elder abusers.

A Public Record of Prior Bad Actions

There’s a reason for the saying “the best predictor of future behavior is past behavior.” That’s because the saying has proven true over and over again. In many of the estate disputes that I’ve litigated that involve elder abusers, there is a paper trail of prior bad acts by the elder abusers. Often, this paper trail is easily available on the internet. I’ve handled cases involving disgraced medical professionals and lawyers who were disciplined or who lost licenses (facts that were available on the internet), involving convicted felons (often there were articles about the convictions on the internet), and involving businessmen caught up in shady schemes (often there were articles about those schemes on the internet).

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Risks to Estate Planning Attorneys in Light of the Thorsen Case

There are several things that all estate planning attorneys (and those who advise them) need to be aware of in light of the Virginia Supreme Court’s recent ruling in Thorsen v. Richmond Society For The Prevention Of Cruelty to Animals, No. 150528, 2016 WL 3131004 (Va. 2016). My colleague Brett Herbert provided a helpful summary of the Court’s ruling in Thorsen in a prior blog post, which can be accessed here. This post shares some tips on how estate planning attorneys can attempt to minimize their legal exposure in light of the Thorsen ruling.

Estate planning attorneys would be wise to insert into their engagement letters a provision that explicitly states that they are only forming an attorney-client relationship with the person who is signing the engagement letter. Additionally, the engagement letter should clearly state that there are no intended third party beneficiaries of the relationship between the estate planning attorney and the client. This practice will help ensure that any future attorney-client relationships formed with clients will be more likely to fall outside of the reach of Thorsen’s holding, which permits claims by intended third party beneficiaries.

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Unfulfilled Expectations: May an Intended (and Disappointed) Beneficiary Sue a Will’s Drafter?

Imagine the following scenario.  Your elderly mother, your only surviving parent, wants to have a discussion with you about her estate plan.  She shows you her will and explains her intentions.  You look at the will and it seems to make sense.  She tells you she is leaving her estate to you upon her death.  She even provides you with a copy of her will and tells you where the original is.  You feel peace of mind knowing that your mother’s estate is (or should) be in order.

A short time later, your mother dies.  You have no idea what to do next so you take your mother’s will to a local attorney.  The attorney looks it over and informs you, with great regret, that her will leaves you nothing, or substantially less than your mother had told you it would.  Your mother’s estate is instead going to some person you do not even know.  You know this is not what your mother wanted.  Is there anything you can do?

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Virginia Supreme Court Issues New Ruling Regarding Guardianship Orders

A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of
a ward, the guardian sues in the correct capacity.

The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that she had co-guardians. The plaintiff was an adult with several physical and cognitive disabilities, whose parents obtained co-guardianship over her. Later, the plaintiff filed a medical malpractice lawsuit in her own name. The defendant in that lawsuit moved to dismiss the claim by filing a plea in bar, asserting that the plaintiff lacked legal standing to file suit because she was subject to a guardianship (and that instead, the proper party to the action would have been the parents as co-guardians of the ward). The circuit court granted the motion to dismiss, and the ward appealed, alleging that her parents’ authority (under the order appointing them as co-guardians) did not extend to filing legal actions on her behalf.

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Misconduct Remedies Against an Agent Under a Power of Attorney

Power of Attorney MisconductIn a prior blog post, I discussed the duties of an agent under a power of attorney. In this blog post, I discuss the remedies that people have against an agent under a power of attorney when the agent commits misconduct.

The first issue is who has standing to pursue legal action against an agent under a power of attorney? Virginia has adopted a modified version of the Uniform Power of Attorney Act that spells out the categories of people who can seek judicial relief against an agent. Under Virginia Code Section 64.2-1614, the following are some of the parties who have a right to file suit against an agent under a power of attorney:

  • the principal (the person granting authority under the power of attorney);
  • a guardian, conservator, personal representative of the estate of a decreased principal, or other fiduciary acting for the principal;
  • a person authorized to make health care decisions for the principal;
  • the principal’s spouse, parent, descendant, and adult brother, sister, niece or nephew;
  • a person named as a beneficiary to receive any property on the principal’s death (including as a beneficiary of a trust created by or for the principal);
  • and the principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare.

This is an expansive list of parties. Notably, the array of family members is quite broad, which helps ensure that even if some family members may be sympathetic to (or indifferent to) an unethical agent, there will hopefully be at least one other family member who is sufficiently concerned to seek judicial recourse.

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3 Strange Things About Prince’s Estate

prince estateThere are several unusual factors at play in the drama that is unfolding surrounding Prince’s estate. This blog post discusses them and offers some tips so that you can hopefully avoid a similar situation.

First, the most unusual factor is that no will or trust has been found. What’s so unusual about this, you ask? Don’t numerous celebrities pass away without an estate plan in place? Sure, some do. But what makes this so unusual is that Prince is not some unsophisticated doofus; rather, Prince is quite familiar with legal disputes and has apparently had extensive dealings with attorneys over the years, especially with respect to copyright infringement actions (this CNET article remarks that Prince “has a long history of suing alleged copyright infringers.”). Therefore, the puzzling question is why did Prince not have an estate plan in place given his apparent sophistication with legal matters?

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Duties of an Agent Under a Power of Attorney

agent under power of attorneyMany average people are named as agents under a power of attorney for a family member or friend, and most have little to no idea what they are getting themselves into. Many people also are aware of the fact that a relative may serve as agent under a power of attorney for a family member or friend, and may be ignorant of how much financial mischief that person could commit with that authority. This blog post outlines the duties of an agent under a power of attorney. I will follow-up this blog post with another post in the coming weeks that discusses what remedies people have against an agent under a power of attorney for misconduct.

There are several sources of law that govern the conduct of an agent under a power of attorney. Virginia (like a sizable number of states) has adopted the Uniform Power of Attorney Act with some changes made from the Uniform Act. In addition to the Virginia Uniform Power of Attorney Act, common law principles also govern agents’ duties.

The Virginia Uniform Power of Attorney Act contains two categories of duties that apply to agents: the first category contains mandatory duties that the principal (the person granting authority to an agent in a power of attorney) cannot have his estate planning attorney draft around. These include the duties to act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest; to act in good faith; and to act only within the scope of authority granted in the power of attorney.

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The Rise of Litigation Involving Trust Protectors

Trust LitigationDisputes involving trust protectors are increasing in number and will likely only further increase in number in the coming years. This blog post discusses what a trust protector is, whether trust protectors owe fiduciary duties (and to whom), and why litigation involving trust protectors is likely to increase in the future.

What Is A Trust Protector?
A trust protector is a person who is named in a trust to exercise varying types of oversight functions with respect to a trustee, or to exercise certain powers with respect to amending the trust. The powers of a trust protector can vary widely, and may include the authority to remove and replace the trustee, modify the terms of the trust, and approve certain actions by the trustee. In some states (especially those that have adopted the Uniform Trust Code), a trust protector is also referred to as “trust director.”

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Guardianships for Disabled Young Adults

Disabled Young AdultsConsider a common situation: Mom and Dad care for their severely disabled child, who is quickly approaching 18 years of age. Let’s call this hypothetical soon-to-be adult Jane. Jane has suffered from severe autism her whole life. She has been in special education throughout her entire school career and requires specialized and frequent medical care.  Jane will never be able to live on her own or manage her finances. Jane’s parents will care for her indefinitely. Jane’s parents wonder if they need legal assistance to plan for Jane’s transition to adulthood.

Without proper planning, Jane’s parents will face great difficulty once Jane becomes an adult.   They will face difficulty communicating with Jane’s doctors, banks, and other financial institutions. This legal limbo poses serious practical problems for parents who are the sole caregivers of their disabled adult children.

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4 Steps To Take If An Estate Dispute Is Brewing

stepsIf an estate dispute is brewing (but is not yet in litigation), there are several important steps that people can take to maximize their odds of success if the matter proceeds to litigation.

In the vast majority of states, people only have judicial standing to challenge a will or a trust after the person who executed the will or trust (referred to as the “testator” or “settlor,” respectively) has passed away. There are often scenarios where a person believes that the testator/settlor was pressured into making the will/trust; didn’t have adequate testamentary capacity to do so; etc., and the testator/settlor is still alive. In those instances, the person cannot challenge the will/trust, but will need to wait until the death of the testator/settlor to bring a challenge. The following are some practical steps that a person in that situation can take in the meantime.

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