When most people hear about elder abuse, they think of cruel or apathetic caregivers leaving elderly family and friends unattended or physically abusing them. But elder abuse is more than physical abuse: when someone takes any property – including real estate, cash, or any other asset or interest – from a person over the age of 65 by fraud or undue influence, it constitutes financial elder abuse.
Financial elder abuse includes more than simple theft. It includes a trustee taking assets from a trust held for the benefit of a person over 65, a family member or friend convincing someone over 65 to change his or her estate plan, or a con man swindling someone over 65 out of his or her money in a shady investment.
California law protects anyone over 65 (as well as adults under 65 with significant physical or mental limitations) from financial abuse. The Legislature created a specific claim that allows persons over 65 – or people authorized to file claims on their behalf during their lifetime or after their passing – to pursue these claims. Among other remedies, they may (1) attempt to put a lien on assets of the abuser, (2) obtain the actual value taken, (3) obtain punitive damages, (4) obtain attorney’s fees, and (5) seek to disinherit the abuser under certain circumstances.
The goal of the Legislature in creating the statute was to empower the elderly and their advocates to fight to protect themselves, and to provide a stronger avenue of recourse against those that target some of the most vulnerable members of our community. By providing strong remedies, persons over 65 that were the victim of financial elder abuse have more leverage than they may realize to fight back and restore what has been taken from them.
Principal Ryan Szczepanik presented on “Tax Strategies and Implications When Settling a Trust or Estate Dispute” at the April 2021 Santa Cruz Estate Planning Council.
Many trustees employ counsel to provide advice on dealing with and responding to inquiries from beneficiaries. Trustees may believe that their communications with and advice from counsel are confidential and cannot be disclosed to the beneficiaries without their consent. The recent court decision in Fiduciary Trust International of California v. Klein (2017) 9 Cal. App. 5th 1184 is a cautionary tale that warns trustees against assuming that all communications with an attorney are confidential.
In his article for The Recorder, Principal John Hartog examines the recent passage of Proposition 19 and its tax implications.