Alcoholic and Manipulative Business Partner

[Zigner]

Doesn't matter what the value of the business is necessarily -- matters what amount the aunt expects in order to be bought out.

...until it starts crossing the line in to financial elder abuse. Not saying that it WOULD, just that it's something that needs to be considered.

 

[tranquility]

...until it starts crossing the line in to financial elder abuse. Not saying that it WOULD, just that it's something that needs to be considered.

In what possible way? Even if aunt were incompetent and a low ball offer came across, it would not be the business partner's duty to take care of aunt.

 

[Zigner]

Again, something to be considered - even if disregarded.


From http://county.milwaukee.gov/ElderAbuse

Information about Elder Abuse:

Definitions of abuse on this page are adapted from the Wisconsin Department of Health & Family Services Elder Abuse Information Site

Wisconsin Statute 46.90 states that elder abuse has taken place when a person age 60 or older or who is suffering from the infirmities of aging has been subject to:

Physical Abuse: "the willful infliction of physical pain, injury or unreasonable confinement. It includes, but is not limited to, beating, choking or burning, inappropriate medication or tying or locking a person up. It also includes sexual abuse, which occurs when a person has been forced, tricked, threatened or otherwise coerced into sexual contact against one's will".
Material Abuse: "sometimes called financial exploitation, is the misuse of an elder's money or property. It includes deception, diverting income, mismanagement of funds and taking money or possessions against a person's will".
Neglect: "occurs when a caregiver's failure to provide adequate food, shelter, clothing, medical or dental care results in significant danger to the physical or mental health of an older person in his/her care".
Self-Neglect: "a significant danger to an elder person's physical or mental health because the elder person is unable or fails to provide him/herself with adequate food, shelter, clothing, medical or dental care".

 

[tranquility]

Again, something to be considered - even if disregarded.


From http://county.milwaukee.gov/ElderAbuse

Information about Elder Abuse:

Definitions of abuse on this page are adapted from the Wisconsin Department of Health & Family Services Elder Abuse Information Site

Wisconsin Statute 46.90 states that elder abuse has taken place when a person age 60 or older or who is suffering from the infirmities of aging has been subject to:

Physical Abuse: "the willful infliction of physical pain, injury or unreasonable confinement. It includes, but is not limited to, beating, choking or burning, inappropriate medication or tying or locking a person up. It also includes sexual abuse, which occurs when a person has been forced, tricked, threatened or otherwise coerced into sexual contact against one's will".
Material Abuse: "sometimes called financial exploitation, is the misuse of an elder's money or property. It includes deception, diverting income, mismanagement of funds and taking money or possessions against a person's will".
Neglect: "occurs when a caregiver's failure to provide adequate food, shelter, clothing, medical or dental care results in significant danger to the physical or mental health of an older person in his/her care".
Self-Neglect: "a significant danger to an elder person's physical or mental health because the elder person is unable or fails to provide him/herself with adequate food, shelter, clothing, medical or dental care".

That is a reporting section. Such a report does not cause legal problems (other than a possible injunction to stop the sale) for the buyer. In fact, if there were such a reporting, the key "penalty" might be the taking over of aunt's affairs by the government. A person buying something from another does not need to worry about committing a crime just because the other person is over 60 and the buyer is getting a good/great/phenomenal deal.

 

[Zigner]

That is a reporting section. Such a report does not cause legal problems (other than a possible injunction to stop the sale) for the buyer. In fact, if there were such a reporting, the key "penalty" might be the taking over of aunt's affairs by the government. A person buying something from another does not need to worry about committing a crime just because the other person is over 60 and the buyer is getting a good/great/phenomenal deal.

I was referring specifically to the nephew "buying out" the aunt (great aunt) for less than market value. Because of the relationship, it could raise a question of financial elder abuse. I'm not saying that it IS, just that it's something that should be considered.

 

[tranquility]

I was referring specifically to the nephew "buying out" the aunt (great aunt) for less than market value. Because of the relationship, it could raise a question of financial elder abuse. I'm not saying that it IS, just that it's something that should be considered.

I know what you were referring to. That's why I posited:

Even if aunt were incompetent and a low ball offer came across, it would not be the business partner's duty to take care of aunt.

I will add, even if that business partner is related to the aunt. The criminal law does not have a penalty here. IF, the nephew was caretaker or had a fiduciary relationship with [great] aunt, that would be different. But, there is no allegation of this here.

It is not a crime. The only consideration would be that if someone reported it under the statute and the government decided it was elder abuse under your provided statute, the remedy would be to stop the sale by injunction or TRO. (Per 813.123) The criminal statutes having to do with the elder abuse are related to physical and emotional abuse, or a caretaker's failure to protect the "victim's" ability to basic needs. The relevant penal code is:

940.285  Abuse of individuals at risk.
(1)  Definitions. In this section:
(ag) "Abuse" means any of the following:
1. Physical abuse, as defined in s. 46.90 (1) (fg).
2. Emotional abuse, as defined in s. 46.90 (1) (cm).
3. Sexual abuse, as defined in s. 46.90 (1) (gd).
4. Treatment without consent, as defined in s. 46.90 (1) (h).
5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).
6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.
(am) "Adult at risk" has the meaning given in s. 55.01 (1e).
(dc) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
(dg) "Individual at risk" means an elder adult at risk or an adult at risk.
(dm) "Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.
(2) Abuse; penalties.
(a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):
1. Intentionally subjects an individual at risk to abuse.
2. Recklessly subjects an individual at risk to abuse.
3. Negligently subjects an individual at risk to abuse.
(b)
1g. Any person violating par. (a) 1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death is guilty of a Class D felony.
1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.
1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
History: 1985 a. 306; 1993 a. 445; 1997 a. 180; 2001 a. 109; 2005 a. 264, 388; 2007 a. 45.

So, I disagree there should be consideration of elder abuse in the type of sale being contemplated.

 

[commentator]

I guess I'm sort of taken aback by the "elder abuse" aspect of this situation in any way, as I can't quite bring myself into the notion that 64 is elderly and that it should be considered that the "elderly" person is suffering from dementia. Doesn't sound that way to me, sounds like she's an alcoholic, maybe, but is still, to a pretty large extent functional, as she does show up for work, she does understand what is going on, and she does maintain her controlling interest and seemingly takes an active part in the business.

I think the OP is somewhat misinformed if she thinks the employees have any rights in regard to suing this employer (her aunt) for harassment or abuse. Or that because the woman is driving them nuts they could sue her for mental anguish, anyhow. I think this aunt is crafty and wouldn't mind being bought out if the niece has an urge to operate the business. But she's mentioned that her aunt is passive, apparently she isn't interested in the business or how it is run, might not be willing to go along with buying out the business, so it sounds as though it's an issue between this OP and her great aunt.

 

[Zigner]

I guess I'm sort of taken aback by the "elder abuse" aspect of this situation in any way, as I can't quite bring myself into the notion that 64 is elderly and that it should be considered that the "elderly" person is suffering from dementia.

In WI the age is 60 for elder abuse to possibly come in to play.

 

[tranquility]

In WI the age is 60 for elder abuse to possibly come in to play.

Since there is no penalty for the actions contemplated, the OP should not worry for a moment about any elder abuse.

 

[Zigner]

Since there is no penalty for the actions contemplated, the OP should not worry for a moment about any elder abuse.

I think it is unwise to tell the OP to ignore this. Sure, it may be a very minor concern, but the OP should mention this to legal counsel - the same counsel he gets with regard to the transfer of the business.

 

[tranquility]

I think it is unwise to tell the OP to ignore this. Sure, it may be a very minor concern, but the OP should mention this to legal counsel - the same counsel he gets with regard to the transfer of the business.

I think it silly you can't come up with anything more but a reporting statute. It is IRRELEVANT to the OP or the transaction. Once again, please point out a statute criminalizing this, or describe the tort where the aunt could sue for damages or show any way this type of transaction can come back to haunt the OP.

 

[Zigner]

One may need to be prepared to respond to an investigation, as provided for in 46.90(5)(a)

AGAIN, this is probably a very small concern, but it may be a concern and should be given consideration and possibly even addressed in such a transaction as was proposed. We'll just have to disagree on this one Tranq


(From http://docs.legis.wisconsin.gov/statutes/statutes/46/90)

(5) Response and investigation.
46.90(5)(a)
1. Except as otherwise provided, upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk, the elder-adult-at-risk agency shall either respond to the report including, if necessary, by conducting an investigation, or refer the report to another agency for investigation. Upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of a client, as defined in s. 50.065 (1) (b), of an entity, as defined in s. 50.065 (1) (c), if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or a nonclient resident of the entity, the elder-adult-at-risk agency shall refer the report within 24 hours after the report is received to the department for investigation. The department shall coordinate its investigatory efforts with other investigative agencies or authorities as appropriate. An elder-adult-at-risk agency's response to or another investigative agency's investigation of a report of alleged abuse, financial exploitation, neglect, or self-neglect that is not referred to the department shall be commenced within 24 hours after a report is received, excluding Saturdays, Sundays and legal holidays.

 

[tranquility]

One may need to be prepared to respond to an investigation, as provided for in 46.90(5)(a)

AGAIN, this is probably a very small concern, but it may be a concern and should be given consideration and possibly even addressed in such a transaction as was proposed. We'll just have to disagree on this one Tranq


(From http://docs.legis.wisconsin.gov/statutes/statutes/46/90)

(5) Response and investigation.
46.90(5)(a)
1. Except as otherwise provided, upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk, the elder-adult-at-risk agency shall either respond to the report including, if necessary, by conducting an investigation, or refer the report to another agency for investigation. Upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of a client, as defined in s. 50.065 (1) (b), of an entity, as defined in s. 50.065 (1) (c), if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or a nonclient resident of the entity, the elder-adult-at-risk agency shall refer the report within 24 hours after the report is received to the department for investigation. The department shall coordinate its investigatory efforts with other investigative agencies or authorities as appropriate. An elder-adult-at-risk agency's response to or another investigative agency's investigation of a report of alleged abuse, financial exploitation, neglect, or self-neglect that is not referred to the department shall be commenced within 24 hours after a report is received, excluding Saturdays, Sundays and legal holidays.

An investigation? Wow, that's scary. I guess if the person is not committing fraud or anything and then tells the investigator to pound sand, there's not much of a penalty is there?

I advise the OP to not commit fraud. Not because the [great] aunt is over 60, but because fraud is illegal.

 

[Zigner]

An investigation? Wow, that's scary. I guess if the person is not committing fraud or anything and then tells the investigator to pound sand, there's not much of a penalty is there?

I guess the OP would have to find out once he's mired down in government red tape

I advise the OP to not commit fraud. Not because the [great] aunt is over 60, but because fraud is illegal.

I concur.

 

[tranquility]

I guess the OP would have to find out once he's mired down in government red tape


I concur.

By "government red tape" you mean, um, life?

But, to have a winner, the facts of LENSTROM v. Simpson, Wis: Court of Appeals, 4th Dist. 2007 (No. 2006AP1570.) might help:

¶ 24 The Simpsons assert that, before Wilma came to stay with the Lenstroms, both Ralph and Lillie Lenstrom wanted the Simpsons to have David Lenstrom's farm. They argue that there was no credible evidence introduced to support a finding that Lenstrom did not understand that the document she signed was a land contract, nor was there credible evidence to support a finding that she was unduly influenced or coerced into signing the document. Lenstrom argues that there is substantial evidence in the record to support a finding that Lenstrom was adamant in not wanting to sell the farm. She argues that the evidence further supports a finding the Simpsons procured her signature through fraud and that they deceived her into believing that the farm had not been sold.

¶ 25 The elements of intentional misrepresentation are that: (1) the defendant made a representation of fact; (2) the representation was false; (3) the defendant made the representation knowing it was untrue or recklessly without caring whether it was true or untrue; (4) the representation was intended to deceive and induce the plaintiff to act upon it; and (5) the plaintiff believed the representation to be true and justifiably relied on it to his or her pecuniary damage. See WIS JI—CIVIL 2401; see also Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶13, 270 Wis. 2d 146, 677 N.W.2d 233; Kimberly Area School District v. Zdanovec, 222 Wis. 2d 27, 52, 586 N.W.2d 41 (Ct. App. 1998).

¶ 26 The court made the following findings of fact that relate to these elements. Ralph and the Simpsons were aware that Lenstrom was opposed to the sale of the farm. A lawyer drafted the document conveying the property at the request of Ralph and the Simpsons. Lenstrom was not advised of that arrangement. Ralph and the Simpsons went to the lawyer's office, leaving Lenstrom alone at home without telling her where they were going. Ralph and the Simpsons signed the contract at that time.

¶ 27 A few days later Ralph and Mr. Simpson took Lenstrom to a bank in Illinois and asked a bank officer there to notarize Lenstrom's signature on a document. The bank officer witnessed Lenstrom's signature but did not discuss the content of the document with her. From these events, the court concluded that there was little doubt that the reason for taking Lenstrom to the bank rather than taking her to the lawyer's office was because they knew that the lawyer would explain what she was signing and she would refuse to go along with the arrangement.

¶ 28 Lenstrom repeatedly testified that she would never agree to sell her son's farm. During a conversation between Ms. Simpson, Lenstrom and a relative, the relative asked whether the Simpsons had purchased the farm on a land contract. Ms. Simpson denied doing so and stated that they were merely renting to purchase. The relative then produced a copy of the land contract. Ms. Simpson became embarrassed and told Lenstrom that "I love you but I'll never be able to see you again." The circuit court concluded that:

This sequence of events makes it abundantly clear that Lillie did not realize that she had signed a land contract and did not intend to sell David's farm. In addition, it is absolutely clear th[at] Ms. Simpson was aware that they were deceiving Lillie with respect to the document she had signed and Ms. Simpson was continuing with that deception.

¶ 29 During this same period of time, Ralph transferred marital property valued at $160,000 to the Simpsons for the sum of $15,300. The Simpsons were aware that this was joint property and that Lenstrom did not consent to the transfer. The Simpsons also convinced Ralph to use marital funds in the amount of $2,391.20 to pay for propane gas for the farm property. Ralph also did this without Lenstrom's consent.

¶ 30 Mr. Simpson drafted a document prior to the signing of the land contract[8] promising to care for Lenstrom after the sale of the farm. The document provided as follows:

This letter is to assure our commitment to Ralph and Lillie Lenstrom. In accordance with their wishes we will do everything in our power to carry out the quality of their lives on the farm. We will continue to assist with personal needs as well as to help maintain the farms. With this agreement we hope to preserve Ralph[']s and [L]illie[']s lifestyle which they enjoy today. In the event that we are unable to provide this assistance[,] the contract to purchase the farm may be considered null and void. Any mon[ie]s will be returned at that time also. Signed this 18th day of October, 2004.

The document was not made part of the land contract. The circuit court concluded that the Simpsons used Ralph's concern that Lenstrom would not be cared for after his death to induce Ralph to sell the farm and personal property to them.

¶ 31 Lenstrom testified that she did not believe that she ever signed a land contract that conveyed the farm to the Simpsons. The Simpsons continually told Lenstrom that they were only renting the farm up until the point that they were confronted with a copy of the land contract.

¶ 32 We conclude that the circuit court's findings of fact are not clearly erroneous and support the circuit court's determination that the Simpsons made intentional misrepresentations to Lenstrom that deceived her into signing the land contract even though she did not intend to sell the farm, resulting in a sale at a price substantially below the property's real market value.

But, the "win" for the seller who purportedly could not understand the meaning of the words '"authorize," "commence" and "lawsuit."' came because of the intentional misrepresentation, not because of any elder abuse law.