Elder Fiduciary Abuse – I could just throttle my aunt!!!

[kristianne]

We live in California.

Grandpa is 93 and has two children. In 1998 he gave my aunt POA, and joint ownership of his property and bank account. He also established a revocable trust naming my dad and aunt as beneficiaries of his belongings.

Grandpa recently decided that he wanted my dad to get half the property. Grandpa was surprised to learn that in 2000 he signed a deed giving the property to my aunt with only a life estate clause for him. We investigated and were shocked to learn that my frugal grandpa that makes ~$80K/yr (SSI & rent), has only $6K in the bank and owes over $100K in credit card debt on cards not in his possession.

Grandpa has asked my aunt to return the property to his name, but my aunt is stalling.

Questions:
1. Is there a way that my grandpa can get his house back? He is mentally competent and does not remember signing the papers in 2000. His lawyer initially said that he didn’t remember drawing the papers and that he didn’t recognize the notary public. Now he says that my grandpa did sign.
2. The credit card charges span as far back as 1998. Would my grandpa still be liable for the charges because of the statute of limitations for credit card fraud?
3. We are reluctant to press charges because we don’t want to see my aunt go to jail, but we do want her to return the property and money, and repay her debt. What are people usually sentenced to? Would the DA likely take the case if we decide to prosecute?
4. Do we have any protection or recourse if my aunt tries to use the property to convince us to not press charges or try to collect the money from her?

Grandpa and I appreciate your help!

 

[JETX]

Is there a way that my grandpa can get his house back?

No one can answer that without a complete and thorough review of ALL the facts. Talk with a local attorney.

The credit card charges span as far back as 1998. Would my grandpa still be liable for the charges because of the statute of limitations for credit card fraud?

Any debts that have expired due to statute of limitations are unenforceable against him (or anyone else). As for the fraud issue, I doubt that would be viable as he did give her permission and access.

We are reluctant to press charges because we don’t want to see my aunt go to jail, but we do want her to return the property and money, and repay her debt. What are people usually sentenced to? Would the DA likely take the case if we decide to prosecute?

No one can guess what sentence, if any, would be handed out. Also, no one can guess whether the DA would accept the charges, other than it is unlikely if your grandfather in fact DID sign and was NOT incompetent.

Do we have any protection or recourse if my aunt tries to use the property to convince us to not press charges or try to collect the money from her?

That doesn't make any sense. Obviously, if she agrees to return the property.... why would you be worried about protection or recourse???

 

[kristianne]

More questions

Thanks JETX for your response.

As for the fraud issue, I doubt that would be viable as he did give her permission and access.

Does POA allow her to open credit in his name or charge on his existing credit cards? I'm sure he didn't know about these charges. The statements are sent to my aunt's house.

That doesn't make any sense. Obviously, if she agrees to return the property.... why would you be worried about protection or recourse???

She is not agreeing to return the property. Grandpa doesn't have any remaining assets to ensure his welfare for what time he has left. We are worried that my aunt will threaten to withold the rental income from my grandpa to make sure he doesn't go to the authorities. Does the life estate clause allow my grandpa to collect the rent monies?

 

[JETX]

Does POA allow her to open credit in his name or charge on his existing credit cards?

Depends on the POA and authority granted therein. Have a local attorney review ALL of these issues to see what, if anything, can be done to revoke his permission and possibly to take action to recover any wrong-doing. There may be issues of embezzlement here... but any options are severely restricted by your/his refusal to take any action.
Simply, you are going to have to decide which is more important.... his well-being and decency, or your aunt's continued abuse of him.

We are worried that my aunt will withold the rental income from my grandpa to make sure he doesn't go to the authorities.

I would think that would make it more likely he would go, rather than restrict.

Does the life estate clause allow my grandpa to collect the rent monies?

No. If it is as you describe, he has no rights of ownership at all..... only that he can 'control' the property for the balance of his life, whether he lives there or not.

 

[rmet4nzkx]

I was going to answer this earlier but had computer problems.
There is some protection in California Law for elders and dependent adults and Adult Protective Services is the agency mandated to take reports of abuse including financial abuse. Here is a link for TELEPHONE /FAX LISTING COUNTY TELEPHONE/FAX NUMBERS APS
http://www.dss.cahwnet.gov/getser/apscountyphonelist4-01.pdf

You & you Grandfather will also have to contact another attorney. Here are some but not all of the applicipble codes insofar as "protection"
You can search for more codes at http://www.leginfo.ca.gov/calaw.html (there are codes which allow EA restraining orders to be filed and also Penal Code 368 is the enforcement code. Here is a link to the superior courts for information for forms and your county courts: http://www.courtinfo.ca.gov/courts/trial/courtlist.htm
California Welfare and Institutions Code
15610.07. "Abuse of an elder or a dependent adult" means either of the following:
(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

15610.10. "Adult protective services" means those preventive and remedial activities performed on behalf of elders and dependent adults who are unable to protect their own interests, harmed or threatened with harm, caused physical or mental injury due to the action or inaction of another person or their own action as a result of ignorance, illiteracy, incompetence, mental limitation, substance abuse, or poor health, lacking in adequate food, shelter, or clothing, exploited of their income and resources, or deprived of
entitlement due them.

15610.13. "Adult protective services agency" means a county welfare department, except persons who do not work directly with elders or dependent adults as part of their official duties, including members
of support staff and maintenance staff.

15610.17. "Care custodian" means an administrator or an employee of
any of the following public or private facilities or agencies, or
persons providing care or services for elders or dependent adults,
including members of the support staff and maintenance staff:
15610.20. "Clients' rights advocate" means the individual or
individuals assigned by a regional center or state hospital
developmental center to be responsible for clients' rights assurance
for persons with developmental disabilities.

15610.27. "Elder" means any person residing in this state, 65 years
of age or older.

15610.30. (a) "Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, or retains real or personal
property of an elder or dependent adult to a wrongful use or with
intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, or retaining real
or personal property of an elder or dependent adult to a wrongful
use or with intent to defraud, or both.
(b) A person or entity shall be deemed to have taken, secreted,
appropriated, or retained property for a wrongful use if, among other
things, the person or entity takes, secretes, appropriates or
retains possession of property in bad faith.
(1) A person or entity shall be deemed to have acted in bad faith
if the person or entity knew or should have known that the elder or
dependent adult had the right to have the property transferred or
made readily available to the elder or dependent adult or to his or
her representative.
(2) For purposes of this section, a person or entity should have
known of a right specified in paragraph (1) if, on the basis of the
information received by the person or entity or the person or entity'
s authorized third party, or both, it is obvious to a reasonable
person that the elder or dependent adult has a right specified in
paragraph (1).
(c) For purposes of this section, "representative" means a person
or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.

15610.35. "Goods and services necessary to avoid physical harm or
mental suffering" include, but are not limited to, all of the
following:
(a) The provision of medical care for physical and mental health
needs.
(b) Assistance in personal hygiene.
(c) Adequate clothing.
(d) Adequately heated and ventilated shelter.
(e) Protection from health and safety hazards.
(f) Protection from malnutrition, under those circumstances where
the results include, but are not limited to, malnutrition and
deprivation of necessities or physical punishment.
(g) Transportation and assistance necessary to secure any of the
needs set forth in subdivisions (a) to (f), inclusive.

see the next post for PC 368

 

[rmet4nzkx]

California Penal Code:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult, with knowledge that he or she is an
elder or a dependent adult, to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any elder or dependent adult, willfully causes or
permits the person or health of the elder or dependent adult to be
injured, or willfully causes or permits the elder or dependent adult
to be placed in a situation in which his or her person or health is
endangered, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand dollars
($6,000), or by both that fine and imprisonment, or by imprisonment
in the state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who, under circumstances or conditions other than
those likely to produce great bodily harm or death, willfully causes
or permits any elder or dependent adult, with knowledge that he or
she is an elder or a dependent adult, to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any elder or dependent adult, willfully causes or
permits the person or health of the elder or dependent adult to be
injured or willfully causes or permits the elder or dependent adult
to be placed in a situation in which his or her person or health may
be endangered, is guilty of a misdemeanor. A second or subsequent
violation of this subdivision is punishable by a fine not to exceed
two thousand dollars ($2,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years, when the money, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding four hundred dollars ($400); and by a fine not
exceeding one thousand dollars ($1,000), by imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment,
when the money, labor, goods, services, or real or personal property
taken or obtained is of a value not exceeding four hundred dollars
($400).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by imprisonment in a county
jail not exceeding one year, or in the state prison for two, three,
or four years when the money, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding four
hundred dollars ($400), and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
goods, services, or real or personal property taken or obtained is of
a value not exceeding four hundred dollars ($400).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.

(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.

 

[kristianne]

thanks you rmet4nzkx!

This is more than I could have hoped for!!! I appreciate all the information.

 

[JETX]

This is more than I could have hoped for!!! I appreciate all the information.

Of course, if 'rmet' had any LEGAL experience he/she would have realized that ALL that information is very likely useless as your first post said that he entered into this relationship knowingly and with full 'competency'.
Of course, that doesn't excuse your aunt's actions.... but makes most of the post by 'rmet' not relevant to the issues you raised.

Of course, the bottom line to ALL of that huge and confusing post... is included in mine where I said, "Talk with a local attorney."

 

[rmet4nzkx]

Of course, if 'rmet' had any LEGAL experience he/she would have realized that ALL that information is very likely useless as your first post said that he entered into this relationship knowingly and with full 'competency'.
Of course, that doesn't excuse your aunt's actions.... but makes most of the post by 'rmet' not relevant to the issues you raised.

Of course, the bottom line to ALL of that huge and confusing post... is included in mine where I said, "Talk with a local attorney."

California law allows for the fact that her Grandfather may have entered into the agreement, "knowingly and with full 'competency'" and that the caregiver in this case, the aunt/daughter may have abused the elder financially, in addition to things such as undue influence etc. The law is specific about that. Also if their contract said one thing, or her Grandfather understood one thing Ca. EC 623 (estoppel) may come into play. I also said to take her father to another attorney not the one working with the aunt for obvious reasons. This is also because APS doesn't provide legal services per se but referrals in most cases and their services varies from county to county. How do I know all this without some legal experience in California? No I didn't add the information about competency evaluations (some attorneys in California will claim they are competent to evaluate competency when they are not according to statute but will act on their lay opinion of competency) so as not to further confuse. What is confusing about citing the applicible codes and directing OP to the appropriate agency rather than the DA who will only send them back to APS where I directed them?

I gave the citations because, if they are not included, the financial abuse aspect may/will be overlooked for the same reasons you based your assumptions. In California there are clinics for civil and DV restraining orders, nothing for EA restraining orders. Most attorneys are unfamiliar with them and their burden of proof which is significantly different than the other orders, which is ironic because EA RO's are for a protected class and often the RO's are not processed accordingly. If properly petitioned, an EA RO, might restore some of Grandfathers property or access to it beyond changing the POA etc.

Actually in California, going to the DA will do no good, they will only take a case referred to them by law enforcement and or the mandated agency, in this case Adult Protective Services, that is why I gave her the link to the phone numbers for APS. They in turn will investigate and refer to the DA but it is in GF best interest to get an attorney familiar with elder law because the DA will prosecute under Ca. PC 368 etc while any civil would be handled by the elder attorney and/or appropriate advocacy agencies which APS may provide referrals for so I didn't include those referals because they may vary depending on county.

I gave the information so OP would be informed.

 

[JETX]

Okay... and here we go again.... law101:

California law allows for the fact that her Grandfather may have entered into the agreement, "knowingly and with full 'competency'" and that the caregiver in this case, the aunt/daughter may have abused the elder financially, in addition to things such as undue influence etc.

Partly true. First, other than the issue of the credit cards (which we do NOT have sufficient evidence of actual wrongdoing, as the costs 'could' have been properly incurred in the care and treatment, etc.) there are NO SPECIFIC allegations of anyone doing anything illegal or improper. Therefore, NONE of us can determine whether any laws have in fact been violated. The ONLY thing we know at this time is that of one person, who may or may not have accurate knowledge of the issues.

Also if their contract said one thing, or her Grandfather understood one thing Ca. EC 623 (estoppel) may come into play.

What 'CONTRACT'??? There is NOTHING in this thread to even indicate that there was any written contract.... or whether there was any contract between 'granddaddy' and his daughter at all. You are simply assuming facts that are NOT stated.

I also said to take her father to another attorney not the one working with the aunt for obvious reasons.

I agree.... and also said so in my post.

I gave the citations because, if they are not included, the financial abuse aspect may/will be overlooked for the same reasons you based your assumptions.

Of course, if that WERE true, you would have only given the SPECIFIC statutes that might apply... instead of a cut-n-paste of the ENTIRE subsection!!!

If properly petitioned, an EA RO, might restore some of Grandfathers property or access to it beyond changing the POA etc.

Oh, please tell us where you got this incredible insight into THIS circumstance that could even lead you (or anyone else) to believe that ANY property mgiht be restored to 'grandpa'!!! And there is NOTHING that I see in this thread that would even hint of prohibited 'access'.

Actually in California, going to the DA will do no good, they will only take a case referred to them by law enforcement and or the mandated agency,

And of course, that is not true. Cases are presented to the District Attorney (via DA Intake) quite often.... without a referral by the police agency.
However, this entire subject is not relevant as the ONLY comment regarding a DA in this thread was mine, "Also, no one can guess whether the DA would accept the charges, other than it is unlikely if your grandfather in fact DID sign and was NOT incompetent."
Your misunderstanding of this to somehow presume circumventing any police and not understanding the charge process is clear.

 

[HomeGuru]

Then thanks for clearing things up.

 

[okamsrazor]

Of course, if 'rmet' had any LEGAL experience he/she would have realized that ALL that information is very likely useless as your first post said that he entered into this relationship knowingly and with full 'competency'.
Of course, that doesn't excuse your aunt's actions.... but makes most of the post by 'rmet' not relevant to the issues you raised.

Of course, the bottom line to ALL of that huge and confusing post... is included in mine where I said, "Talk with a local attorney."

I know this is not true in illinois. We recently had the Joliet Fire Chief and his wife swindle a woman using a POA they had. They had full rights to all her accounts etc and took her for $200k. They are awaiting sentencing now...and since they were charged with fraud she was able to recover some of her losses from the Credit Cards etc.

The elderly have special laws that protect them in many states...it is not the same as if I signed a POA and got ripped off as if my Grandmother did.

http://www.willcountysao.com/

JOLIET, ILLINOIS — August 18, 2004 — The Office of the Will County State’s Attorney today charged Cheri Lynn Drick, 1400 Mason Avenue, Joliet, Illinois, and Joseph Drick, same address with one (1) count of Unlawful Financial Exploitation of an Elderly Person, a Class 1 felony, one (1) count of Conspiracy to Commit Financial Exploitation of an Elderly Person, a Class 4 felony, and one (1) count of Theft by Deception, a Class 1 felony under the Illinois Criminal Code.

The criminal complaint, filed in the 12th Judicial Circuit Court of Will County before the Honorable Judge Gerald Kinney, charges that the defendants, with conspiracy and intent, deprived Gladys Farrington, age 84, of Joliet, Illinois of the possession of monetary savings while in the position of trust through documents granting the “Power of Attorney.”

“Gladys Farrington met the defendants on a cold morning in 2002,” said Jeff Tomczak, Will County State’s Attorney, “They offered Gladys a ride home, but she never imagined how that ride would leave her unable to control how she would spend the final years of her life.”

“The defendants allegedly transferred more than $200,000 to use for their own personal benefit,” said Jeff Tomczak, Will County State’s Attorney, “These items include a 2003 Cadillac Escalade, home furnishings, carpeting, home improvements, cemetery plots, mortgage indebtedness, credit card indebtedness, and travel expenses.”

A private civil lawsuit also alleges that the defendants took control of the widow’s personal estate, worth more than $1.1-million according to court documents.

“We have charged conspiracy in addition to exploitation,” said Tomczak, “I personally do not believe that we have untangled the web completely. There may be others left to charge, but now we begin the process of restoring an honorable woman’s life while prosecuting those who tried to take it from her.”

Today’s charges are the result of an investigation by the Office of the State’s Attorney, specifically Special Investigator Tom J. Kelly and Chief Investigator Bill Fitzgerald.

 

[rmet4nzkx]

While most states have some laws protecting the rights of elderly and disabled, the laws and their enforcement vary considerably, that is why I gave very specific references to California law and how it functions because OP was from California. The laws are often confusing, thus the post "confusing" and a "Local attorney" may not be adequate because the laws in California and some of the laws and rules of court for disabilities may seem in conflict with other functions of the court, vary considerably from county to county, as a result the entire system including the judges may have confusion when it comes to elder and disability law so it is especially important to have an attorney familiar with it and to know something about it before you go in for a consultation. For every case prosecuted there are hundreds that go without anyone noticing.

 

[JETX]

I know this is not true in illinois.

Who cares what happens, or doesn't happen, in ILLINOIS???? It is probably not true on Mars or Venus either, and they have just as much relevance as your post!!

There is NOTHING in this thread that would even indicate that ILLINOIS has ANY relevance. This issue is in CALIFORNIA!!!
JEEZE!!! Get a map!!!
Where the hell do this idiots come from.....

 

[okamsrazor]

If you want to be the next IAAL you are not off to a very good start. Not only does he start with a smarta$$ comment, but his insults are much deeper and more personal.

If you had a legal "roadmap" you would understand Illinois looks to Califrnia courts for many of its rulings. This includes POA cases. In fact both Illinois and California have specific clauses in POA forms that cover fraud. There is plenty of documentation in California about POA's and fraud. The POA does not give immunity to commit fraud.