Prevention and Remedying Financial Elder Abuse

1. Protecting your client Andrew H. Hook, CELA, CFP® M. Bradley Brickhouse Stephen E. Taylor Oast & Hook, PC www.oasthook.com

3. Door to Door “termite inspections”

4. Completed “needed repairs” on her home

5. She deeds her house to company as payment

7. Case ANALYSIS NUMBERTHREE Blended family. Account transfers under the cloud of Medicaid planning. Abusive use of a power of attorney. Stepdaughter uses POA to transfer Stepmother’s entire state to her husband (stepdaughter’s father) in ICU Has father executes new LWT after transfers Leaves entire estate (except for minimum amount to satisfy elective share) to his children. Same lawyer drafted all documents Met wife only for POA signing

8. Introduction The population is getting older, by 2030 24% of the Virginia population will be 60+ In 2004, APS nationally received a total of 565,747 reports of abuse 20% growth rate from 2000 Under reported Physical abuse: 1 in 14 reported Financial abuse: only 1 in 25 reported

9. VICTIMS 65.7% were female 42.8% were age 80+ 77.1% were Caucasian 89.3% occurred in domestic settings

10. PerpetratorsSubstantiated Reported Cases 52.7% of perpetrators were female 75.1% of perpetrators were under age 60 32.6% were children 21.5% were other family members

11. Categories

12. Types of AbuseVirginia APS

13. Governmental ActionDomestic Setting Self Neglect

14. APS Investigation, voluntary or involuntary intervention, and reporting of Elder Abuse. If protective services are needed and accepted by the individual, APS may arrange for a variety of health, housing, social and legal services, including home-based care, transportation, adult day services, adult foster care, nutrition services and legal intervention. Services may also be arranged for individuals in emergency situations who lack the capacity to consent to services. Primary Responsibility for protection of Adults.

15. Reporting

16. Criminal Law Section 18.2-369: Abuse and neglect of incapacitated adults; penalty. A. It shall be unlawful for any responsible person to abuse or neglect any incapacitated adult as defined in this section. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect does not result in serious bodily injury or disease to the incapacitated adult is guilty of a Class 1 misdemeanor. Any responsible person who is convicted of a second or subsequent offense under this subsection is guilty of a Class 6 felony. B. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in serious bodily injury or disease to the incapacitated adult is guilty of a Class 4 felony. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in the death of the incapacitated adult is guilty of a Class 3 felony.

17. Prevention of Financial Elder Abuse Employment of Care Manager/Coordinator Power of Attorney Guardianship Direct Deposit Representative Payee Trusts Commercial Bill Paying Service

19. Support and guidance for the family

21. HHS Standards for Privacy of Individually Identifiable Health Information; Final Rule: 45 CFR Parts 160 and 164Law: Pub. L. 104-191,110 Stat. 1936

23. Bestows Fiduciary Duties on Agent (UPOAA)

24. Can be used to help remedy the abuse

25. Can also be easily revoked

26. Dueling POA’s

28. Court oversight

29. Can be used as muscle

30. Add previous agents as parties

32. Beneficiaries can require accountings

34. remedies through Litigation

36. Often easier to recover if there is an agency relationship between abuser and a company

38. Examples of UPOAA Fiduciary Duties Act in accordance with the principal’s reasonable expectations Act in Good Faith Act only within the scope of authority granted Act loyally Act so as not to create a conflict of interest Act with care, competence and diligence Keep records Attempt to preserve the principal’s estate plan Investment duties such as diversification

39. Examples of Trustee Fiduciary Duties Administer trust in good faith in accordance with its terms and the interests of the beneficiaries Loyalty Prudence Monitor and control costs and expenses Maintain records Keep beneficiaries informed

40. UPOAA Duties Prudence Diversification Loyalty Manage and monitor expenses

41. Common Law – Informal Fiduciary Relationships The common law has also embraced the concept that certain informal relationships may provide a basis for the imposition of fiduciary duties. Such “confidential relationships” may arise “where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.” However, it is axiomatic that not all relationships that involve a high level of trust and confidence can be characterized as fiduciary; instead, the law examines whether “influence has been acquired and abused . . . [and] confidence has been reposed and betrayed.” “Due to its extraordinary nature, the law does not recognize a fiduciary relationship lightly. Whether such a duty exists depends on the circumstances.”

45. Internet Resources National center on elder abuse, http://ncea.Aoa.Gov/ncearoot/main_site/index.Aspx Oast & Hook, www.oasthook.com Virginia APS, http://www.dss.virginia.gov/family/as/aps.cgi