Possible Indicators of Incapacity, Undue Influence and Elder Abuse
□ Gifts to persons (caregivers, service providers, friends) who are not the natural objects of the client’s bounty
□ Gifts to anyone that are so large, given the size and nature of the client’s estate, as to threaten the client’s economic security
□ Loans, particularly if undocumented, to anyone; special scrutiny required if to non‑family members
□ Actions by client’s fiduciary (attorney-in-fact, trustee, other) that reflect poor judgment or conflict of interest
□ Existence of estate-planning documents naming non‑family members as fiduciaries or beneficiaries
□ Existence of joint accounts with non‑family members
□ Evidence that client signs checks prepared by others
□ Bequest plans or other arrangements favoring one child, particularly if a caregiver
□ Evidence of physical harm (bruises, cuts, etc.)
□ Evidence of excessive dependence on a child or other person, particularly if such other person is critical to the client’s independence and/or ability to avoid a nursing home
□ Material inconsistency between client’s understanding of estate and its true value
□ Excessive fees charged by professionals (trustees, attorneys, financial advisors, stockbrokers, other)
□ Unconscionable terms of loans or other financial arrangements.
Courses of Action When Elder Abuse Identified
□ Require accountings from prior fiduciaries. Court procedures are available to compel such accountings.
□ Institute conservatorship/guardianship procedures to formalize authority in a third party who will be accountable to the courts.
□ Contact Adult Protective Services (or its equivalent) in the client’s community.
[Caveat: Doing so may constitute a breach of confidentiality.]
□ Revoke or amend estate-planning documents that do not comport with client’s wishes.
□ Commence civil action against person(s) who take financial advantage of client. Such actions may include elder abuse (in jurisdictions so providing), fraud, negligence misrepresentation, theft and breach of contract.
□ Commence civil action against person(s) who physically abused the client. Such actions may include elder abuse, assault, battery, wrongful death and violation of Patient Bill of Rights (if events occurred in a nursing home).
□ Remove assets from accounts held jointly with suspected abuser.
□ Involve the police and raise possible criminal charges against abuser.
□ Draft documents (durable power of attorney, trust, other) to effect true, independent wishes of client.
□ Involve social worker, counselor, psychologist or professional geriatric care manager.
□ Involve professional, bonded fiduciary to manage assets for client.