The Growing Problem of Elder Abuse
Elder abuse is becoming an increasingly dangerous problem in this country.
According to the American Psychological Association, over 2 million seniors
annually suffer from either physical or financial elder abuse. It has
been estimated that exploitation of the elderly cost its victims around
$36.5 billion per year. And, the problem will only get worse as our population
ages. It is estimated that the population over 65 will nearly double by
2030. With an aging population, the opportunities for elder abuse will
How can an estate plan help protect you from elder abuse?
It is common knowledge that an estate plan consisting of a trust and will
is necessary for the orderly transfer of your assets to your loved-ones
upon your death. But, did you realize that your estate plan can also play
an invaluable role during your lifetime to protect you from being taken
A comprehensive estate plan will normally consist of two documents which
will allow a trusted loved one to take over the management of your financial
affairs if you become unable to manage them yourself. The first is a “springing”
power of attorney. It is called a “springing” power of attorney
because it “springs” into effect upon the occurrence of a
specified event. In most cases, the event that causes the power of attorney
to spring into effect is the incapacity of the principal.
But, how can a loved one prove incapacity in order for the power of attorney
to spring into effect? Usually, a power of attorney will require letters
from two doctors certifying the incapacity. In order to satisfy HIPAA
privacy laws, you should also have a medical power of attorney or advance
health care directive that authorizes your doctors to provide your medical
information to your agent in the case of incapacity. Thus, if a loved
one becomes concerned that you are becoming incapacitated or may be subject
to elder abuse, they may be able to gain control of your finances through
your power of attorney in order to safeguard your assets.
Your power of attorney serves another important function in preventing
elder abuse. Even though you have a well-drafted estate plan, you still
may require a conservatorship should you become incapacitated. A conservatorship
is obtained through a court proceeding in which the court appoints a person
to act as your conservator to manage your financial affairs and/or make
medical decisions on your behalf. In your power of attorney, you can nominate
a trusted loved one to act as your conservator. The court is required
to appoint that person unless the court finds it is not in your best interest
for that person to serve.
The second document in your estate plan that can prevent elder abuse is
your trust. In your trust, you are required to appoint a trustee to manage
your assets, and you transfer ownership and control of your assets to
your trustee. In most cases, you will serve as the trustee during your
lifetime. However, what happens to control of the assets in your trust
if you were to become incapacitated? A good trust will contain “incapacity”
provisions which allow a successor trustee to take over management of
your assets in the event of your incapacity. Again, most trusts will require
letters from two physicians certifying your incapacity.
Together, your power of attorney and trust should be able to protect your
assets should you become incapacitated, without the need for someone to
file for a conservatorship. When you speak to your estate planner, make
sure you talk to him/her about how you can prepare for your incapacity.
The Problem of Isolation
How would you feel if someone kept you from seeing your loved ones –
your spouse or your children? A common tool used by those committing elder
abuse is isolation – actions intended to prevent a person from receiving
visitors or mail. It is far easier for the abuser to commit financial
elder abuse if the elder is isolated from loved ones. California’s
Elder Abuse and Dependent Adult Civil Protection Act defines isolation as a form of elder abuse. There is a gap in the law,
however. The only person who can bring an action for elder abuse to stop
the isolation is the elderly person. It is extremely rare for a victim
of elder abuse to report it. An action cannot be brought by a child or spouse.
This was the situation faced by the children of Peter Falk and Casey Kasem.
They were forced to seek conservatorships over their ailing fathers just
to get the right to see them. Through the advocacy of the Kasem Cares
Foundation, California is currently considering legislation that would
help remedy this situation. Earlier this year, Iowa became the first state
in the nation to pass a law allowing children to petition the court to
If this issue is important to you, speak to your estate planning attorney
about including a statement regarding with whom you would like to visit
if you should become incapacitated.
For additional financial health information, please attend Torrance Memorial's
Financial Health Seminars.
Troy Martin, Esq. is an attorney and experienced probate litigator in Los
Angeles and a member of Torrance Memorial’s Professional Advisory Council.
www.lurie-zepeda.com. (310) 274-8700.