How Estate Planning Can Prevent Elder Abuse
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In California, “Elder Abuse” is defined as a crime involving the infliction of financial exploitation, emotional or physical abuse, or neglect upon a victim who is 65 years or older. California is one state where its elderly population is on track to grow a whopping 30 percent by the year 2060. That’s more than three times that of the total U.S. population. With an increasing aging and elderly population, crimes against seniors are also on the rise. Among the most common types of abuses seen in California and elsewhere are financial fraud and financial exploitation by relatives and caregivers.
So, how can a senior avoid becoming a victim of financial exploitation or other abuses by someone they know and probably trust?
The first that seniors need to know is that it is entirely possible that someone they may rely on to take care of them and their needs, could potentially cause them harm. To reduce seniors’ vulnerability and exposure to possible wrongdoers who are looking to take advantage of unknowing victims, one very effective option is to create an estate plan.
Estate planning is the creation of a set of various legal documents that designate trusted individuals to act as authorized agents and provide oversight over things such as finances or a senior’s personal health and well-being. These tools can be designed to provide or to limit very specific or general powers to handle a senior’s financial assets, manage their property, fulfill their financial obligations, or make decisions involving their health care, employ and manage caregivers, or communicate with health care institutions and providers.
Creating a Trust is an especially useful resource which allows a person to place his or her assets into trust to be managed by a third party, known as a trustee. In many cases however, the maker of the trust can act as not only the Settlor of the trust, but can also serve as the Trustee, the manager of the trust assets, as well as the Beneficiary, the person whom the trust benefits.
Most assets owned by a person can be placed into a trust after it’s created in order to enjoy the protections of the trust. For example, a trustmaker may have real property such as a family home which he or she does not wish to be passed to certain persons who may be distant relatives upon his or her death. Trusts allow a person to protect a real property asset by directing that it should pass to a specific person or persons instead of letting a court determine its ultimate disposition. Oftentimes, families have unique dynamics where there is a history of family feuds or discord which can be made worse upon the passing of a relative with assets. By creating a trust to identify a specific plan of distribution of either real property or other tangible or intangible assets, it can eliminate tension, save time and money, and avoid future fighting among heirs or anyone who would seek to take advantage of a elderly person’s property.
Two-thirds of all Americans aged 55 or older do not have an estate plan
Power of Attorney
A Power of Attorney is a legal arrangement where a person known who acts as the Principal, may designate and direct a third party to act as the Agent and manage certain financial matters on their behalf. This is an area rife with potential abuse of elderly persons who may be coerced or tricked into granting someone a power of attorney which is then used to abuse or steal their financial assets. Unfortunately, an abuser will create circumstances where they assume a position of trust or loyalty, or cultivate close relationship with an elderly person giving them the opportunity and capability of enacting a plan to harm. A common scenario is a person who in the past may have financially relied on an elderly person or has received monetary gifts or compensation in exchange for a performance of personal favors, such as running errands or informal caregiving. Elderly persons are often isolated by these wrongdoers in order to escape suspicion from family and friends. In California, there is little oversight over Agents with powers of attorney. This can make it difficult to identify when someone wants to advantage of senior victims who are particularly vulnerable to persons with bad intentions.
To avoid this, before granting powers of attorney to anyone, it is crucial to consult with a licensed attorney who can draft a valid document and ensure there is no abusive intention by a would-be Agent.
Health Care Directive
Advance Health Care Directives are legal documents that designate a third party to make health care decisions if needed. It can outline certain wishes, such as the extent and nature of end-of-life medical treatment, the provision of health care providers and helpers, or medications and lodging. It may seem easy that any next of kin or close relative or friend would likely be suitable in this role, but there’s more to delegating this decision-making authority than meets the eye. For example, there may be multiple persons within a family who might fit the bill to take on this responsibility. Or in some cases, a family may have members who work in a medical field so their training and experience might best qualify them to make decisions on behalf of another person. Or, in some cases, siblings might fundamentally disagree over how to care for a senior family member such as a father or mother. As is the case with abuse by a personal confidante or even a family member seeking to gain a power of attorney for their own benefit, a health care directive carries the same importance for ensuring that no one with bad intentions is placed in a position of trust in order to do harm.
With an exploding aging population, about two-thirds of people over the age of 55 still do not have any estate planning documents, making more seniors especially vulnerable to becoming victims of elder abuse.
For more information about creating an estate plan to protect yourself or your elderly family members, visit us at www.relatelaw.com.
This article is for educational purposes only. Nothing in this article constitutes legal advice, nor does accessing it create an attorney-client relationship.