You may have already had concerns that someone you know was exploiting an elder relative financially while they were alive. Now that they are gone, it may now be confirmed or you are just now beginning to grasp the full scope of it. Fort Lauderdale probate litigation lawyers know this happens more often than you might think.
The AARP reports roughly 3.5 percent of all older adults suffer some form of financial exploitation (actual numbers likely higher as not all cases are reported) costing more than $2 billion annually. (The Elder Financial Protection Network puts it at closer to 10 percent.)
It’s worth consulting with a probate attorney, even if you don’t plan on hiring one. It’s essential because your time to legally act and contest a will is very brief, so it’s best to preserve your challenge to a will early on if there is any chance you might do so. In the case of elder financial exploitation prior to death, your attorney will most likely assert some form of undue influence as grounds for contesting a will.
What is Elder Financial Exploitation?
The Older Americans Act of 1965 defines exploitation of an elder as:
“The fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit or gain, or that results in depriving an older individual of rightful access to, or use of, benefits, resources, belongings, or assets.”
Key risk factors include:
- Dementia
- Low social support
- Functional impairment
- Bereavement
- Living with a large number of family members without spouse
- Low income/poverty
- Being female
A 2014 study published in the Journal of General Internal Medicine revealed that in a study of nearly 4,200 adults who had suffered financial exploitation, family members were the most common perpetrators (58 percent), followed by friends and neighbors (17 percent) and home care aides (15 percent).
Any time a family member becomes secretive about a parent’s finances or the family member living with a parent depends on him/her for financial support, these can be red flags. A sibling or caregiver who insists on being present for any interaction with the elder is another. A sudden change in any estate planning document should set off alarm bells.
Adult protective services should be contacted if the financial exploitation is currently ongoing.
If your loved one has already passed, you must act as quickly as possible to preserve your right to a challenge asserting undue influence.
Undue Influence After Financial Exploitation
As a Fort Lauderdale probate litigation attorney can explain, contesting a will of a recently-deceased parent or other loved one requires swift action.
Undue influence is defined as when someone close to the elder person pressures or manipulates that person in a way that has legal significance. It’s basically a type of fraud that occurs when someone is either entering a contract or drafting a will.
Understand can generally happen to any adult – even one who has the capacity to make decisions – can be a victim of under influence. However, as previously mentioned, certain situations can increase the likelihood that one will be vulnerable to it.
F.S. 733.107 explains the burden of proof in will contests and the presumption of undue influence under certain circumstances. These include the beneficiary being present when the elder person expressed a desire to make the will, recommending an attorney to draft the will, knowledge of the will’s contents prior to it being executed, giving instructions on preparing the will, securing witnesses for will and being the one to hold the will in safekeeping.
Contact our probate litigation law office in Fort Lauderdale if you are concerned your loved one may have been exploited in the creation of their will or certain benefits meted out therein.
Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
TWELVE WAYS OF PROVING THE NEGATIVE AND OVERCOMING THE CARPENTER PRESUMPTION OF UNDUE INFLUENCE, Feb. 12, 2019, Florida Bar Journal
More Blog Entries:
Estate Lawyer Answers: Can Adult Children be Disinherited in Florida? April 27, 2019, Fort Lauderdale Probate Litigation Attorney Blog