Unpleasant Surprises and the Neglected.

          Unpleasant Surprises and the Neglected – Unpleasant surprises can be in store for the adult children and grandchildren of elderly and dependent persons who are neglected personally or whose affairs are not in order.  Let’s discuss.

          Consider an elderly grandparent who lives alone and whose adult children live too far away or are too busy to be involved.  Unscrupulous and predatory persons may enter into the grandparent’s life as employed care givers or a so-called friends.  When only the predator is “looking after” them, elder abuse can easily start and can persist undetected before any action is taken.  By then many assets are usually lost and recovery may sometimes only be partially successful. 

          Once a predator gains the trust of a dependent elder they often proceed to coerce or to trick them in any number of ways.  They may wrongfully take charge of the elder’s finances and transfer assets to themselves while the elder is still alive to the detriment of the elder. Alternatively, they might have the elder name them as the death beneficiary, or as joint owner with right of survivorship, on the elder’s financial accounts, annuities, and life insurance policies.  Similarly, the predator might be named as a beneficiary on a new will or trust without the elder’s family knowing. 

          The likelihood and extent of the harm may be reduced if a trusted family member is the elderly person’s agent for financial, property and legal matters and/or trustee under a revocable living trust.  That agent and/or trustee can monitor what is happening with the assets, inside and outside of the elder’s trust, and notify financial institutions in order to protect assets. 

          These predatory activities discussed above are often presumed by California law to be the product of fraud, undue influence and coercion, unless the predator is also related to the dependent adult through marriage, family, or cohabitation, and the presumption does not apply. 

          Predators may try to “legalize” their activities by marrying or cohabiting with their dependent adults in order to fit themselves within an exception to the fraud presumption.  Unfortunately, California’s “Confidential Marriage” law permits marriages to occur secretly without anyone else knowing.  Thus confidential marriages often go uncontested.  As surviving spouse, the predator has inheritance rights either as an heir or as an omitted spouse.

          An elderly person’s family should always, therefore, be involved in the elder’s life, encourage the elder to get their affairs in order, and be vigilant when outside persons enter the elder’s life.

          Next, consider an elderly person who while alive pays-off a debt that was secured against their home. If the creditor neglects to sign a release of debt and to remove the lien then removing the lien years after the debt was paid-off is often difficult.  It requires locating the creditor, who may not even still be alive, and getting the creditor’s cooperation to sign a release of the lien.  Otherwise it means going to court.  Whether any liens remain on fully paid-off debt should be determined and such liens promptly removed.

          Also, consider the safekeeping of the elderly person’s important documents.  Problems may arise during the administration of the elder’s estate when important documents are missing even though the estate planing was done. 

          Consider a missing will.  In order to probate the will the original is needed.  A mere photocopy is insufficient as the original may be presumed to have been revoked. Important documents need to be kept in safe and accessible.

          Whether, when, what and how problems may arise depend on facts and circumstances that vary with each case.  Nevertheless, what is clear is that when an elderly person or their affairs is neglected unpleasant surprises often lie not too far down the road.  The consequences can be costly for all concerned.