Elder financial abuse involves the wrongful pursuit and acquisition of an older person’s assets. Perpetrators employ numerous scams, undue influence, and misuse of positions of trust and authority to fraudulently obtain credit, deplete bank accounts, transfer land, and access other assets of the elder person. Both strangers and even family or relatives can take advantage of the elderly.
If you believe your grandparent has suffered from elder financial abuse, you understandably want to sue or take another action to help your grandparent. However, your ability or right to sue does not automatically arise. As a general rule, only those harmed or deprived of legal rights due to another’s wrongdoing may start a lawsuit. Questions may arise about the willingness or even mental capacity of an elderly victim to sue the wrongdoer. Lawyers who take on elder financial abuse cases typically rely on these methods to establish your authority to sue on behalf of your grandparents.
Power of Attorney
With a power of attorney, an individual authorizes another person, designated as an agent, to conduct transactions and handle the financial and business affairs of the individual. The agent appointed in a power attorney can deposit checks, pay bills, buy or sell property and handle other business or financial matters. These matters include filing lawsuits on behalf of the principal.
Powers of attorney often provide that the agent’s authority continues even after the principal becomes unable to handle his or her own affairs. This feature allows the agent to act when the principal cannot. To protect the principal against unauthorized transactions on his or her own behalf, the law requires that powers of attorney be in writing, signed by the principal and notarized. Often, these documents are recorded in the register of deeds or land records office.
With a power of attorney, your grandparent has voluntarily granted you power over his or her affairs. Guardianships, or in some jurisdictions conservatorships, do not arise by the grandparent’s consent, but by a court order. Otherwise, guardians have many of the same powers as agents appointed in powers of attorney. These include the right to sue on behalf of a grandparent or other person.
As a prerequisite to becoming a guardian, you typically must petition the court to have your grandparent declared incompetent. The court may rule your grandparent incompetent or otherwise in need of a guardian over financial or property affairs when the grandparent is not able to understand the legal or financial ramifications of the transaction or how to conduct it. Evidence of dementia, Alzheimer’s Disease or other mental or psychiatric conditions typically support a finding of incompetency.
By the time you become your grandparent’s guardian, the need for a lawsuit may very well have come about. Indeed, you might consider a guardianship if you observe signs of elder financial abuse. These indicators may include unusual or unnecessary purchases, excessive withdrawals of funds from bank accounts and calls or emails from unknown parties, especially those claiming to have prize money or free cash available. As a guardian, you can access bank or other account documents to uncover fraud by strangers or even those who have acted on your grandparent’s behalf.
Removing a Fiduciary
Many instances of elder financial abuse occur at the hands of agents or guardians. These persons misuse their positions of trust to convey property or money to themselves or others.
Addressing actual or potential wrongdoing is slightly less challenging with guardianships than powers of attorney. Guardians are appointed by the court and, therefore, are supervised by the court, as well. The oversight of the court includes receiving or compelling periodic accounts by the guardian that show the receipt of money or property for the ward and expenditures and other transactions involving the ward. Furthermore, guardians must typically get court permission to sell the elder person’s land.
Guardians who fail to submit proper accounts, keep inadequate records, or engage in unauthorized actions are subject to removal by the court. Indeed, a judicial official may on his or her own initiative remove a guardian for failing to render accountings or disobeying court orders.
Uncovering misconduct by agents in powers of attorney prove more difficult. Usually, the power of attorney does not require the agent to submit records to a court or be bonded. If you suspect that an agent has swindled your grandparent, you must either seek a petition to have the agent removed or become appointed as guardian over the grandparent.