Probate Litigation FAQs
Frequently Asked Questions
Q: How can I protect someone from financial elder abuse?
Every year, incapacitated and unduly influenced elder and dependent adults are devastated by the loss of property taken from them. If you suspect elder abuse is occurring, file a report with the Adult Protective Services agency in your county. The complaint form is confidential. The Adult Protective Services program (APS) is a 24-hour service to investigate complaints of dangerous situations facing seniors (age 65 and over) and dependent adults. After investigation, APS must report any known or suspected instance of criminal activity to law enforcement.
You may need to contact the elder’s closest family members and friends to find out if any of them have power of attorney for the elder, which they can use to take protective action with the elder’s assets. Most estate plans include a financial power of attorney for the elder’s protection when the elder is experiencing diminished capacity.
To get more specific guidance, contact an attorney who is familiar with the law in this area. Interested persons can get a protective order to stop financial elder abuse, and a lawsuit against the abuser can recover the taken property with damages.
Q: What is “undue influence”?
The legal definition of undue influence is somewhat opaque, declaring that undue influence is “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” There are three key factors to look at.
- First, the vulnerability of the victim, whether that vulnerability results from diminished capacity, dependency, or confusion or ignorance of the true facts.
- Second, the degree of authority and control the alleged abuser has over the victim, which can result from the alleged abuser’s status as a fiduciary, family member, care provider, or spiritual advisor to the victim.
- Third, what actions or tactics did the alleged abuser take to obtain the property or benefit from the elderly person? Examples of abusive tactics include threats, intimidation, and pressure on the victim, haste or secrecy in the transaction, or emotional manipulation.
The “inequity” that results includes economic consequences to the victim, and/or any divergence from the victim’s prior intent or course of conduct. The definition is broad enough to include many different situations that most would recognize as unjust.
Q: How do I bring a financial elder abuse claim?
Financial abuse occurs when a person takes, secretes, appropriates, obtains, or retains real or personal property belonging to an elder or dependent adult by undue influence, or assists another in such conduct.
If the elder or dependent adult understands what has happened to some degree, he or she can demand the return of the property. The law requires the person who took the property in a financially abusive transaction to return it upon demand or face civil liability for damages and attorney fees. Experienced attorneys can bring a financial elder abuse lawsuit against the abuser to recover the property and damages on behalf of the elder and successors as well.