News and Discussion on Ohio Elder Law and Estate Planning, including Medicaid and VA Aid and Attendance, Wills, Living Trusts, Guardianship, Healthcare Powers of Attorney, Living Wills, HIPAA, Probate, and more by Columbus, Ohio Estate Planning Lawyer Russell C. Golowin. For more, visit ColumbusElderLawAttorney.com or call (614) 453-5208
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Sunday, September 24, 2006
Web Link - Wills of the Famous (Part 2)
Enjoy!
Tuesday, September 19, 2006
Web Link - Wills of the Famous
You'll notice that some of them don't have much information for our prying eyes to see. This is because their living trust owned thier assets during life, which controlled who got thier "stuff" and when they got it. This way, the public does not see exactly who inherited, and who did not. To some, this privacy is extremely valuable.
If you are interested in why you may prefer a living trust centered estate plan rather than a will based plan, contact an estate planning attorney today.
Friday, September 15, 2006
Caregiver Agreement Follow-Up - Details
If you read my prior post on caregiver agreements (also known as "personal care contracts" or "personal service contracts"), you know that they are a valuable tool. But knowing that they are out there is not enough! You need more!
This follow up to the Wall Street Journal article provides some additional infrormation and quotes several elder law attorneys on the topic. For more information on elder law, estate planning or medicaid planning, feel free to contact me today.
Setting Up a Contract For Who Will Mind Mom
By Rachel Emma Silverman
From the The Wall Street Journal Online
Trish Richert recently signed a binding employment contract. In exchange for taking care of a 77-year-old woman -- arranging and taking her to doctors' appointments, doing her bills, keeping her house tidy -- Ms. Richert, of Greensboro, N.C., receives a modest stipend that covers travel expenses and other costs.
Ms. Richert's employer: her mother. The two recently entered into a so-called caregiver contract -- a formal agreement, set up by a lawyer -- in which Ms. Richert, 45, receives a small payment for the long hours she spends caring for her mom.
A small but growing number of families are setting up caregiver contracts, in which adult children or other relatives are hired, for modest salaries, to take care of elderly or disabled family members. These arrangements, which are also called personal-service or personal-care agreements, can help reduce the size of a parent's estate and thereby improve their chances of becoming eligible for long-term-care coverage under Medicaid. They can also minimize battles between siblings and other family members. For many other families, the contracts simply help reward the significant amounts of time, effort and money that family members often spend watching over and taking care of an elderly relative.
There aren't any national statistics on how many family members are compensated for caregiving. But a huge swath of Americans already provide long hours of voluntary care for family members and friends -- and these numbers are likely to grow as the population ages and more people live longer. Some 44.4 million adult caregivers -- or 21% of the U.S. adult population -- provide unpaid care to seniors or adults with disabilities, according to a 2004 study by the National Alliance for Caregiving in Bethesda, Md., a research and advocacy coalition, and AARP, the Washington advocacy group for seniors. On average, those caregivers provide 21 hours of care a week; the average length of time spent providing care is 4.3 years.
Many caregivers have to balance their family duties with their real jobs. Nearly 60% of caregivers either work or have worked while providing care, the study found, with many having to make adjustments to their work life, including reporting late to work or even giving up their jobs entirely.
Kathy Nalven is in the process of drawing up a caregiver contract with her mother's 88-year-old fiancé, Edward Campbell. Ms. Nalven, a Fort Lauderdale, Fla., real-estate broker who is in her 50s, has agreed to take care of Mr. Campbell, but "the parameters have to be really clear," she says. "If it means that I can't work because I'm busy taking care of him, which I'm very willing to do, I need to be compensated. I'm not a saint." Ms. Nalven and Mr. Campbell both say that the terms of the arrangement are still being worked out.
Elder-lawyers and caregiver advocates say that more people are considering compensating family members for their efforts. In recent weeks, Jennifer Cona, a Melville, N.Y., elder-law attorney, has drafted five caregiver contracts. Before that, she had drawn up only three in the preceding couple of years. "We're seeing a real increase," she says.
"I know in my own practice they are definitely increasing," adds Lauchlin Waldoch, a Tallahassee, Fla., elder-lawyer. "People are more receptive to them now."
Qualifying for Medicaid
There's another key reason for the uptick: Legislation passed earlier this year makes it tougher to qualify for Medicaid long-term-care coverage by making outright gifts to family members. The measures were passed to prevent seniors who have the means to pay for their own care from obtaining Medicaid, which is intended for poor patients. Lawyers say that if set up properly, caregiver contracts shouldn't be considered gifts to children because the patient is receiving a real service in return.
Medicaid isn't likely to "disqualify you for making those payments to your children if you have an arm's length, commercially reasonable contract, in writing, ahead of time," says Charles Sabatino, director of the American Bar Association's Commission on Law and Aging in Washington. Scott Solkoff, a Boynton Beach and Miami, Fla., elder-lawyer, says he has drafted more than 250 caregiver contracts in recent years; about half of the arrangements, he says, have been "Medicaid-driven."
Still, there's a lot of stigma to overcome when recommending the idea to families, lawyers say. The main reason: "People are still uncomfortable with the idea that you are paying your kids," says Palo Alto, Calif., lawyer Michael Gilfix.
Indeed, when Ms. Richert first heard about the contracts from her mother's lawyer, A. Frank Johns of Greensboro, N.C., "it felt funny," she says. "It's hard to put a dollar figure when you are doing something for your mom."
Advisers and family members say the deals are also smart because a formal arrangement, done ahead of time, can minimize feuds among siblings and other relatives. Oftentimes, one child serves as a primary caregiver and a parent may reward him or her by making informal gifts or by doling out a bigger piece of the estate in the will. Unfortunately, those arrangements can lead to family fights or will contests.
A formal caregiver contract, drafted ahead of time, makes the arrangement "more iron-clad," says New York elder-law attorney Bernard Krooks. "You have a written document showing this is what mom wants you to do and what mom wants to do for you. It helps avoid family squabbles." But lawyers say it's important to discuss the contract with other siblings or relatives so they are aware of the arrangement ahead of time; that can help minimize family tensions later.
Terry Huffines, of Brown Summit, N.C., set up a caregiver contract with her aunt, who is 92 years old, to help avoid any estate problems down the road with her aunt's 15 additional nieces and nephews. The agreement, set up by Mr. Johns, the Greensboro, N.C., lawyer, outlines the services Ms. Huffines, 72, will provide for her aunt, including driving her to the doctors, the grocery store and other household chores.
In order for a caregiver contract to be respected -- and to pass muster with Medicaid authorities -- it has to follow certain formalities. For one, you can't pay the caregiver an inflated rate in order to shift lots of money out of your estate. Instead, you should specify what duties the caregiver is expected to perform and then contact local home-care agencies or geriatric-care managers to establish the market value of those services in your area. Such duties can vary from preparing meals, bathing and dressing to housecleaning and chauffeuring, as well as arranging doctor's appointments and friends' visits and overseeing medications.
Cost Varies Widely
The cost of care varies widely, depending on location and the services being performed, and can range from about $15 an hour to more than $100 an hour. Some families choose to pay a discounted rate to family caregivers, which is also acceptable, lawyers say. It's also much better to set up the caregiver contract when the incapacitated adult is of sound mind, as the arrangements can become far more complicated if a person acting as power of attorney signs the contract.
The contract should also specify whether the payment will be done in one upfront lump sum based on the senior's life expectancy -- a technique often used for Medicaid-planning -- or in regular weekly or monthly payments. It's also wise to create safeguards to prevent a caregiver from taking the money and running, such as depositing paychecks into an escrow account rather than to the caregiver directly.
There are also tax consequences to consider. The compensation is considered ordinary income, so the caregiver has to pay income taxes on the payment. Also, depending on how the contract is structured, Social Security and other payroll taxes may have to be withheld.
Many lawyers say they generally only set up the contracts as part of more-comprehensive estate plans, including power-of-attorney documents and wills, but that the arrangements can cost anywhere from about $500 to several thousand dollars to create.
It's smart to check whether there are other sources of funding you can use to pay family members. Some long-term-care insurance policies, such as those that pay lump-sum "indemnity" benefits, may be used to pay family members who provide care, says Jesse Slome, executive director of the American Association for Long Term Care Insurance in Westlake Village, Calif. If you already have a policy or are considering one, see if the coverage will allow you to pay family members for their caregiving services.
In addition, some state or federal government programs provide funding to compensate family members in what is known as "consumer-directed care." For instance, a growing number of states have a "Cash & Counseling" program for Medicaid enrollees that allows participants to pay family members for their services. Contact your local agency on aging or department of social services for more information on government funding.
Email your comments to cjeditor@dowjones.com.
-- September 13, 2006
Thursday, September 14, 2006
Caregiver Agreements and Medicaid
For more information, contact an Ohio Medicaid Attorney.
Who Will Mind Mom?
Check Her ContractSeniors Turn to Written Agreements to Compensate
Relatives as Caregivers; Reducing Estate SizeBy RACHEL EMMA SILVERMAN
September 7, 2006; Page D1Trish Richert recently signed a binding employment contract. In exchange for taking care of a 77-year-old woman -- arranging and taking her to doctors' appointments, doing her bills, keeping her house tidy -- Ms. Richert, of Greensboro, N.C., receives a modest stipend that covers travel expenses and other costs.Ms. Richert's employer: her mother. The two recently entered into a so-called caregiver contract -- a formal agreement, set up by a lawyer -- in which Ms. Richert, 45, receives a small payment for the long hours she spends caring for her mom.A small but growing number of families are setting up caregiver contracts, in which adult children or other relatives are hired, for modest salaries, to take care of elderly or disabled family members. These arrangements, which are also called personal-service or personal-care agreements, can help reduce the size of a parent's estate and thereby improve their chances of becoming eligible for long-term-care coverage under Medicaid. They can also minimize battles between siblings and other family members. For many other families, the contracts simply help reward the significant amounts of time, effort and money that family members often spend watching over and taking care of an elderly relative.There aren't any national statistics on how many family members are compensated for caregiving. But a huge swath of Americans already provide long hours of voluntary care for family members and friends -- and these numbers are likely to grow as the population ages and more people live longer. Some 44.4 million adult caregivers -- or 21% of the U.S. adult population -- provide unpaid care to seniors or adults with disabilities, according to a 2004 study by the National Alliance for Caregiving in Bethesda, Md., a research and advocacy coalition, and AARP, the Washington advocacy group for seniors. On average, those caregivers provide 21 hours of care a week; the average length of time spent providing care is 4.3 years.Many caregivers have to balance their family duties with their real jobs. Nearly 60% of caregivers either work or have worked while providing care, the study found, with many having to make adjustments to their work life, including reporting late to work or even giving up their jobs entirely.Kathy Nalven is in the process of drawing up a caregiver contract with her mother's 88-year-old fiancé, Edward Campbell. Ms. Nalven, a Fort Lauderdale, Fla., real-estate broker who is in her 50s, has agreed to take care of Mr. Campbell, but "the parameters have to be really clear," she says. "If it means that I can't work because I'm busy taking care of him, which I'm very willing to do, I need to be compensated. I'm not a saint." Ms. Nalven and Mr. Campbell both say that the terms of the arrangement are still being worked out.Elder-lawyers and caregiver advocates say that more people are considering compensating family members for their efforts. In recent weeks, Jennifer Cona, a Melville, N.Y., elder-law attorney, has drafted five caregiver contracts. Before that, she had drawn up only three in the preceding couple of years. "We're seeing a real increase," she says."I know in my own practice they are definitely increasing," adds Lauchlin Waldoch, a Tallahassee, Fla., elder-lawyer. "People are more receptive to them now."Qualifying for MedicaidThere's another key reason for the uptick: Legislation passed earlier this year makes it tougher to qualify for Medicaid long-term-care coverage by making outright gifts to family members. The measures were passed to prevent seniors who have the means to pay for their own care from obtaining Medicaid, which is intended for poor patients. Lawyers say that if set up properly, caregiver contracts shouldn't be considered gifts to children because the patient is receiving a real service in return.Medicaid isn't likely to "disqualify you for making those payments to your children if you have an arm's length, commercially reasonable contract, in writing, ahead of time," says Charles Sabatino, director of the American Bar Association's Commission on Law and Aging in Washington. Scott Solkoff, a Boynton Beach and Miami, Fla., elder-lawyer, says he has drafted more than 250 caregiver contracts in recent years; about half of the arrangements, he says, have been "Medicaid-driven."Still, there's a lot of stigma to overcome when recommending the idea to families, lawyers say. The main reason: "People are still uncomfortable with the idea that you are paying your kids," says Palo Alto, Calif., lawyer Michael Gilfix.Indeed, when Ms. Richert first heard about the contracts from her mother's lawyer, A. Frank Johns of Greensboro, N.C., "it felt funny," she says. "It's hard to put a dollar figure when you are doing something for your mom."Advisers and family members say the deals are also smart because a formal arrangement, done ahead of time, can minimize feuds among siblings and other relatives. Oftentimes, one child serves as a primary caregiver and a parent may reward him or her by making informal gifts or by doling out a bigger piece of the estate in the will. Unfortunately, those arrangements can lead to family fights or will contests.A formal caregiver contract, drafted ahead of time, makes the arrangement "more iron-clad," says New York elder-law attorney Bernard Krooks. "You have a written document showing this is what mom wants you to do and what mom wants to do for you. It helps avoid family squabbles." But lawyers say it's important to discuss the contract with other siblings or relatives so they are aware of the arrangement ahead of time; that can help minimize family tensions later.Terry Huffines, of Brown Summit, N.C., set up a caregiver contract with her aunt, who is 92 years old, to help avoid any estate problems down the road with her aunt's 15 additional nieces and nephews. The agreement, set up by Mr. Johns, the Greensboro, N.C., lawyer, outlines the services Ms. Huffines, 72, will provide for her aunt, including driving her to the doctors, the grocery store and other household chores.In order for a caregiver contract to be respected -- and to pass muster with Medicaid authorities -- it has to follow certain formalities. For one, you can't pay the caregiver an inflated rate in order to shift lots of money out of your estate. Instead, you should specify what duties the caregiver is expected to perform and then contact local home-care agencies or geriatric-care managers to establish the market value of those services in your area. Such duties can vary from preparing meals, bathing and dressing to housecleaning and chauffeuring, as well as arranging doctor's appointments and friends' visits and overseeing medications.Cost Varies WidelyThe cost of care varies widely, depending on location and the services being performed, and can range from about $15 an hour to more than $100 an hour. Some families choose to pay a discounted rate to family caregivers, which is also acceptable, lawyers say. It's also much better to set up the caregiver contract when the incapacitated adult is of sound mind, as the arrangements can become far more complicated if a person acting as power of attorney signs the contract.The contract should also specify whether the payment will be done in one upfront lump sum based on the senior's life expectancy -- a technique often used for Medicaid-planning -- or in regular weekly or monthly payments. It's also wise to create safeguards to prevent a caregiver from taking the money and running, such as depositing paychecks into an escrow account rather than to the caregiver directly.There are also tax consequences to consider. The compensation is considered ordinary income, so the caregiver has to pay income taxes on the payment. Also, depending on how the contract is structured, Social Security and other payroll taxes may have to be withheld.Many lawyers say they generally only set up the contracts as part of more-comprehensive estate plans, including power-of-attorney documents and wills, but that the arrangements can cost anywhere from about $500 to several thousand dollars to create.It's smart to check whether there are other sources of funding you can use to pay family members. Some long-term-care insurance policies, such as those that pay lump-sum "indemnity" benefits, may be used to pay family members who provide care, says Jesse Slome, executive director of the American Association for Long Term Care Insurance in Westlake Village, Calif. If you already have a policy or are considering one, see if the coverage will allow you to pay family members for their caregiving services.In addition, some state or federal government programs provide funding to compensate family members in what is known as "consumer-directed care." For instance, a growing number of states have a "Cash & Counseling" program for Medicaid enrollees that allows participants to pay family members for their services. Contact your local agency on aging or department of social services for more information on government funding.Write to Rachel Emma Silverman at rachel.silverman@wsj.com
Wednesday, September 13, 2006
Choice of Health Care 'Proxy' Often Surprising
Many people don't realize that failing to have these documents drafted to fulfill their personal, individual wishes can result in unfortunate circumstances where an unfavored person is making life or death medical decisions for them.
For example; if one-half of an unmarried couple becomes incapacitated, the "other half" has no legal right to make medical decisions for the other. In fact, under HIPAA, they likely have no right to any medical information at all, including whether they are even at a certain location. The parent(s) of the incapacitated person will likely make all medical decisions for them, regardless of whether they have a close relationship or not.
The article below illustrates that going to the "default" of spouse or parent decisionmakers is quite often not what people want. Make sure you are taken care of how you want, and by whom you want by seeing an estate planning attorney today.
Choice of Health Care 'Proxy' Often Surprising
By Alan Mozes
HealthDay Reporter
MONDAY, Aug. 21 (HealthDay News) -- When your health declines so badly that you can no longer speak for yourself and choose your care, who should speak for you?
Ideally, experts say, that's when a legally designated health-care "proxy" would take over. But, according to a new study, the choice of a proxy is often unexpected.
For example, a full third of married individuals said they would choose someone other than their spouse as their proxy, the study found. And female relatives -- such as a mother, a sister or a daughter -- are more likely to be chosen for the role than male relations.
Regardless of who is chosen, "every competent adult should name someone as their agent for health care," said study author Dr. K. Michael Lipkin, an assistant professor of clinical preventive medicine with the department of preventive medicine in the Feinberg School of Medicine at Northwestern University in Chicago.
Otherwise known as a "durable power of attorney for health care", a proxy is a patient-selected adult -- be it relative or friend -- who acts as the decision-maker for all health concerns if and when the patient becomes incapacitated.
"It's like insurance," Lipkin added. "You hope you never need it, and it's likely that only 5 percent of the population is going to get into the kind of crazy trouble that would require it, but that's exactly the point -- it's for the unexpected."
The study was published in the August 2006 issue of the Journal of General Internal Medicine.
In most states, in lieu of a designated proxy, power over health care decisions is automatically granted to spouses or parents if an individual becomes incapacitated.
For many Americans, these "default" choices for proxy may not be the best for them.
In the study, conducted for a six-week period in 1997, Lipkin interviewed 298 adult outpatients between the ages of 19 and 96, in various states of health, all of whom were patients at the General Eye Clinic at the University of Chicago.
These men and women were asked who they would want their doctor to notify in case of an emergency and who they would choose to represent them to execute decisions and deal with doctors if they were too sick to do so themselves.
Over half of the patients also completed a 12-question interview to ascertain attitudes toward choosing a health care proxy.
Among the findings:
* 100 percent of patients could identify a single individual to be their health proxy.
* 28 percent chose someone other than their emergency contact to serve as their proxy.
* Among the 45 percent of patients who were married, one-third did not choose their spouse as their proxy.
* Female relatives were preferred over males. For example, interviewees chose daughters over sons by a margin of 3 to 1, and sisters were twice as likely to be chosen as proxies compared to brothers.
* Nine out of 10 were supportive of doctors asking their patients to choose a proxy, and almost the same number said they would do so right away if their doctor asked them at that very moment.
* However, just over one-quarter said they had ever been asked to consider naming a proxy by their doctors.
* Only 18 percent of those interviewed had a proxy at the time, and just five percent knew for sure that they had given a copy of their proxy to their physician.
Lipkin said the findings should alert physicians that patients are more than willing to discuss the issue of health care proxies and related issues.
Everyone would benefit by talking things over while the patient is healthy, rather than dealing with these potentially difficult decisions when a crisis is at hand.
"What I think the public needs to know is that there's nothing better than having a human being to use their best judgment to speak for you when you can't," said Lipkin.
Living wills are available, but, "as an instructional document, a living will can not anticipate the ever-changing flow of issues when you're in coma, or unconscious or injured, or undergoing surgery," according to Lipkin. "So, a lot of times, the instructional documents alone -- which are static and unchanging -- are misinterpreted. Patients are much better off naming a trusted loved person as their medical proxy and giving them verbal power of attorney for health care," he said.
Another expert agreed. Lis Nielsen, the program director for the Psychological Development and Integrative Science department at the U.S. National Institute on Aging in Bethesda, Md., supported Lipkin's call for a greater focus on health care proxies.
However, she sees the establishment of a health proxy as just one piece of a good advanced-care plan.
Advanced-care planning is "not a one-shot decision," Nielsen stressed. "It's certainly an important part of planning, as people are living longer. But, as the author points out, keeping the channels of communication open is the key. You have to have continuing discussions with whomever you choose to make decisions for you if you become incapacitated, since your preferences can change over time. And you also have to open up an ongoing dialogue with care providers to facilitate having your wishes attended to later in your life."
"So, appointing a healthy proxy is one part of a project that could include a conversation about advanced directives -- namely, stating what I do or don't want to happen to me -- as well as long-term assisted care options," added Nielsen. "Naming a proxy is not a decision that you make and you're done."
More information
For more on health care proxies and other advanced-care issues, head to the AARP.
SOURCES: K. Michael Lipkin, M.D., assistant professor, clinical preventive medicine, department of preventive medicine, Feinberg School of Medicine, Northwestern University, Chicago; Lis Nielsen, Ph.D., program director, Psychological Development and Integrative Science, National Institute on Aging, Bethesda, Md.; August 2006 Journal of General Internal Medicine
Copyright © 2006 ScoutNews LLC. All rights reserved.
Monday, September 11, 2006
Consumer Reports - A Nursing Home Ratings Website
This site included general advice on how to choose a nursing home that is a good fit for you or your loved one, and also has detailed information on which homes have been fined for violating state or federal regulations, and so forth.
Consumer Reports suggests that persons who are interested in learning more about area nursing homes contact their local Area Agency on Aging. In Ohio, call 1-866-243-5678 to find your local agency.
Note: The Ohio Long-Term Care Consumer Guide also provides information on Ohio nursing homes (data compiled by Ohio’s Office of the State Long-term Care Ombudsman. Visit thier website to compare.
Wednesday, September 06, 2006
Keeping the Wolves from Grandma's Door: Financial Exploitation of the Elderly
Sally's speech focused on ways to protect the elderly from financial predators, and an essay version follows below.
June 15, 2006 was World Elder Abuse Awareness Day. You might ask, what is World Elder Abuse Awareness Day, how did it come into being, and what is its significance? The proclamation of the "Day" came about through the efforts of the International Network for the Prevention of Elder Abuse (INPEA). INPEA is a standing committee of the International Association of Gerontology with representatives from 31 countries on all continents. (FN1) INPEA asked the representatives in the various countries to develop activities to raise political and media awareness of the problem of elder abuse in their respective countries.
As we recognize in the US, awareness of elder abuse is about where child abuse was two decades ago and domestic violence was a decade ago. Federal and state dollars spent on prevention, intervention, and prosecution of elder abuse is a slim fraction of what is devoted to child abuse and domestic violence. In many other countries, elder abuse isn't on the public's radar at all. This could be caused by denial or cultural acceptance. It does not mean that elders are not abused physically, emotionally, or financially around the world. The demographics of increasing aged populations worldwide are a reality. People today are living longer worldwide -- much longer.
Only 20 years ago, it was believed that population aging was primarily a phenomenon of the industrialized nations. We know now that population aging is a global phenomenon. Mortality rates in most developing nations have declined faster than expected over the past two decades, with the result that many such nations now have life expectancies approaching, or even exceeding, those of the developed nations. By the year 2050, there will be 2 billion older persons in the world -- compared with 600 million today. In 2050, the percentage of older persons will rise to 21 percent worldwide, up from 8 percent today. Today in India there are 80 million senior citizens, more than the entire population of Britain. (FN 2).
No country can ignore these demographics and no country can ignore the fact that their elders are vulnerable to being abused. Awareness of the reality of the potentiality and actuality of abuse is imperative before countries will devote the attention and resources necessary to put in place the policy, programs and procedures that will begin address the problem. World Elder Abuse Awareness Day was an initial step to focus the attention of the international public and policy makers that elder abuse happens.
The primary international event to raise worldwide awareness of elder abuse was a symposium held at the United Nations on June 12. Representatives from eight countries, as well as Mrs. Nane Annan, the wife of the United Nations Secretary General, spoke about efforts underway to attack elder abuse. I had the privilege to be asked to focus my comments on the financial exploitation aspect of elder abuse. Around the world, and even in the US, when people think about elder abuse, if they do at all, they think of physical violence. Unquestionably, physical abuses--the ducubidi caused by neglect, the assaults on persons with dementia, the rape of nursing home residents, and the murders that go uninvestigated because to old persons are supposed to die--are an outrageous shock to the social conscience. Just as shocking is the financial abuse of older persons that is happening around the world.
While we can project the worldwide demographic bulge, universally we acknowledge that we don't know exactly how much elder abuse or financial exploitation happens. (FN 3). We do know that what is reported is only the tip of the iceberg. (FN 4). One study has estimated that there are at least 5 million financial abuse victims in the United States each year, but officials only hear of about perhaps 1 in 25 cases. (FN 5). While many people associate elder abuse with physical violence, analysis of reported abuse in the United States demonstrates that financial exploitation happens more frequently. Its emotional consequences leave as lasting scars as physical violence. (FN 6).
Across the world it is imperative that we acknowledge that financial exploitation is already happening at an alarming rate and will continue to spread. To be equipped to address this inevitably growing problem, we first need to understand how elder financial abuse happens, who are the victims, and who are the perpetrators.
The victims of exploitation deserve society's special attention and protection because they are targeted for particularly pernicious crimes directed at their financial security. Studies point to specific cracks in victims' defenses against exploitation: trust, financial naiveté, cognitive impairments, social isolation, dependency, fear, and embarrassment. (FN 7). Perhaps unique among other types of crime, there is a very real chance that the victim has no idea that she has been or is being victimized. The victim may have no awareness that anything is amiss with his finances; that a trusted person is dipping into her bank account. Or he is just not able to recognize that the person who is taking his money is a thief. (FN 8)
It is not so much the victims' vulnerabilities or weaknesses that "allow" these crimes to happen. Credit must be given to, or blame be placed on, the perpetrators. They are good at what they do! They are cunning, experienced, and professional. They rarely look like criminals. Think of them as wolves in sheep's clothing. These perpetrator wolves come in two disguises: "the strangers" and "the trusts."
The strangers -- who work hard at looking like the trusts -- are the con artists, telemarketers, tradesmen, (FN 9) like the plumbers who used the ruse that they were working for the water board in Edinburgh, Scotland, to get inside homes of older persons to steal money, (FN 10), tricksters who charged a partially-sighted 89-year old woman in Manchester, England, £100,000 to resurface her driveway, (FN 11), and hucksters promoting money-making opportunities based on any number of enticing schemes ... the list seems endless.
The US Department of Justice recently announced 565 arrests in Operation Global Con that involved 2.8 million victims with $1 billion in losses. This international enforcement operation involved authorities in the US, Canada, Costa Rica, the Netherlands, Spain, the United Kingdom, New Zealand, and Nigeria. One case involved a fraudulent investment scheme that took $6 million from more than 13,000 foreign investors and 10,000 US investors. Another scam in Venezuela and Guatemala duped Spanish-speaking Americans to pay a fee in advance for the "La Familia Gold Card", a credit card that did not exist. Another involved foreign-currency option contracts pitched by telephone to customers in the United States, Canada, and the United Kingdom. (FN 12)
The second category of perpetrators includes those even more dangerous wolves called the "trusts." They are able to accomplish their crimes because they start with a huge advantage. The victim knows them before the crime begins. They trust their predator. They may have even given birth to them. They believe them, rely on them. Their life may even depend on them. They are their family, friends, neighbor, a new sweetheart, their caregiver, minister (FN 13), financial advisor, attorney (FN 14), insurance agent (FN 15), or banker. (FN 16) They may have a legal, fiduciary, or moral responsibility to take care of the person who is their victim. They violate that trust and responsibility by taking for their own purposes the resources and dignity of the person who relied on them.
How do these family members, friends and advisors commit their exploitation? It can be outright stealing by walking away with valuables or jewelry. A caregiver can sneak a blank check out of a checkbook, or use an ATM card to cover personal expenses. (FN 17) It can be done by coercion or duress with threats that "if you don't give me your pension check, I'll beat you or put you in a nursing home." It is done by persuasion: "If you give me your house, I'll always take care of you." It's done through professed affection: "I love you more than your kids who never come see you, so buy me a new car." It's done by professed authority: In Melbourne, Australia, a man impersonating a police officer only preyed on elderly victims. In one incident he flashed a badge saying he was from the drug squad. He appeared to be speaking into a lapel microphone while he searched the man for drugs and took his money. (FN 18)
Greed may play a role when family members prevent the parent from selling a home to pay for nursing care so the property will be available for the children to inherit. It happens through dependency when a daughter won't purchase medications for her ill mother because she needs her mother's income to live on. An unemployed son may snatch his mother's pension check to support an addiction.
It's done by intentional cunning like Pren Karaqi, who complimented a recent widow on her garden and within two weeks had moved into her home, posing as a registered nurse who would take care of her. He directed her to add his name to all her accounts, wire $42,000 to a Swiss bank account, buy a $29,000 car, and change her will to leave her home to him. (FN 19)
It's done by taking advantage of social isolation or even creating isolation so the victim is shielded or separated from existing social networks. The caregiver screens calls, intercepts mail and restricts visitors to gain psychological control. It is done by locking the elder in a back room and taking control over the apartment and pension. (FN 20)
Financial abuse most frequently is the result of a relationship gone wrong, or a betrayal of trust. A family member, friend or stranger may develop a trusting relationship with the older person with the expectation that they will derive financial gains from the relationship. All too often the caring person becomes an opportunist. He or she starts out actually helping to pay the bills. But as the older person declines in mental agility, the opportunity to dip into the bank account for personal needs becomes overpowering. (FN 21) The use of legal--or purported legal--documents such as joint bank accounts, durable powers of attorney, deeds, and wills exponentially complicates detection and recovery because of the intended screen of legitimacy. The legally complicated issues of consent, undue influence, (FN 22) and capacity create a golden opportunity for success in accomplishing the exploitation. It looks legal; it's hard to detect; it's unlikely to be reported; it's complicated to unravel; it's unusual to be prosecuted if it is revealed. The trusted-but-not-to-be trusted wolves are grinning ear to ear.
The stranger wolves are grinning, too. One international scam that rakes in a billion dollars each year is the "you have won the lottery" scheme, such as the prolific El Gordo scam out of Spain or the Canadian Lottery. (FN 23) The telemarketers promise instant wealth, but before the money can be delivered, the winner must first wire out of the country thousands of dollars in so-called fees and taxes. (FN 24) There is also the advance check scheme. This money-making ploy involves a large check that the victim is told to deposit and then refund a smaller amount, keeping the difference. Of course, the check is counterfeit so instead of gaining a commission, the victim loses the total check amount. (FN 25) One alert Florida senior spotted these two plots in one scam when he received a phony $4,000 check as an advance on the taxes he supposedly needed to pay to collect his $49,000 lottery payout. (FN 26) And there is the ubiquitous "Nigerian" or "419" scam that uses forged documents purporting to come from nonexistent government agencies or companies in West Africa that promise large amounts of money if the recipient reveals a bank account number.
Unsuspecting investors, intent on making sure their money will last their life span, are tricked into investment scams that leave them destitute in their final years. It could be the long familiar Ponzi scheme with promises of high returns that are financed only by bringing in new investors to the ruse. (FN 27) Fraudulent investment opportunities in coins and stamps also target older investors around the world. In Spain, more than 350,000 pensioners of modest means lost €3.5 billion in a stamp dealing scam. They were told the investment was guaranteed and the stamps would appreciate by 6 percent a year. (FN 28) When the pyramid scam crumbled, police were called to control hundreds gathering in protest outside the company's headquarters.
Our task as elder advocates is to become even more committed through national and international cooperation to shutting down the wolves, expanding our knowledge about the wolves' ways, and sharpening our skills to blunt their claws. Their lairs may be in Spain, Canada, Nigeria, or the United States. They could be anywhere in the world on the Internet hiding behind a pseudo URL. (FN 29) They are at their best in the bedroom or living room behind closed doors so no one becomes suspicious. Their tools are kind words, wonderful promises, and fancy pieces of paper. They don't need masks because the victims know exactly who they are because they are sons and daughters. They don't need guns or leave bruises because they talk their victims into handing over the money. They don't create fear; they build on trust.
Even though there are no broken bones, the effect is devastating financially and emotionally. Not only are life savings wiped out with little time to recover financial stability, there is an enormous psychological toll. Loss of assets means loss of independence and security, resulting in being dependent on family or pubic assistance. Financial abuse isn't just about loss of money. Its ramifications go far beyond the dollars. It causes fearfulness, loss of confidence, depression, hopelessness, and suicide. (FN 30) That list is too long.
Elder advocates must continue to stress that our clients are being abused. Policy makers cannot be allowed to ignore or forget what is happening to their constituents and their family members. Resources need to be allocated; laws need to be revised; (FN 31) attention needs to be paid to fact that how we treat our elders reflects what we are as a society. World Elder Abuse Awareness Day was one step to raise international awareness of elder abuse and financial exploitation and to reinforce our universal commitment to keeping the wolves away from our parents and grandparents wherever in the world they may live.
NAELA member Sally Hurme is staff attorney with AARP Financial Protection in Washington, DC.
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FN 1 "The International Network for the Prevention of Elder Abuse aims to increase society's ability, through international collaboration, to recognize and respond to the mistreatment of older people in whatever setting it occurs, so that the latter years of life will be free from abuse, neglect and exploitation."
FN 2 Lola Nayar, Celebrating Old Age by Making a Difference in Society, April 18, 2006, INDO-ASIAN NEWS SERVICE.
FN 3 A poll taken in conjunction with World Elder Abuse Awareness Day, found that more than half of all respondents believed that there was a great deal of neglect and mistreatment of the elderly in Britain. Elderly Abuse ‘Becoming Common', BBC NEWS, June 5, 2006. One in Five Israeli Elderly are Abused, Jerusalem Post, Feb. 19, 2006.
FN 4 One invaluable source of current information about fraud, exploitation and abuse in the United States and other countries are media scans by The American Society of Adult Abuse Professionals and Survivors (ASAAPS). The US Federal Trade Commission complies reports of fraud in its Consumer Sentinel database. For an analysis of fraud and identity theft complaints from consumers over 50 to the FTC in 2004, [click the link]. In 2004 reported fraud cost people 50 and older $15 million out of the $565 million total fraud losses reported nationwide.
FN 5 John Wasik, The Fleecing of America's Elderly, CONSUMERS DIGEST (March/April 2000).
FN 6 Reports of financial exploitation investigated by US Adult Protective Services were 20.8% of all reports, compared to 12.5% for physical violence. Pamela B. Teaster et al., ABUSE OF ADULTS AGE 60+: THE 2004 SURVEY OF ADULT PROTECTIVE SERVICES (2006).
FN 7 Thomas L. Hafemeister, Financial Abuse of the Elderly in Domestic Settings, in National Research Council, ELDER MISTREATMENT: ABUSE, NEGLECT, AND EXPLOITATION IN AN AGING AMERICA, 391-393 (2004).
FN 8 AARP, TELEMARKETING FRAUD VICTIMIZATION OF OLDER AMERICANS (1996).
FN 9 George Gregg was indicted in Maricopa County, AZ, for taking $50,000 from an elderly woman for roof repair. He never did any work but collected payment several times from the 77-year Scottsdale resident. Handyman Scams Targeting Elderly, KPHO PHOENIX, May 10, 2005. The president of a Japanese home repair company was arrested for possibly defrauding 800 older homeowners into doing 1 billion yen in unnecessary home repairs. 7 Home Repair Staffers Arrested, YORMIURI SHIMBUN, June 13, 2006.
FN 10 Plumbers, who claimed they needed access to the home to check taps and pipes, preyed on at least 14 elderly and vulnerable victims stealing thousands of pounds. Alan Roden, Bogus Callers Swoop on OAPs, The Trail of the Con Men, May 16, 2006, EDINBURGH EVENING NEWS.
FN 11 Plumbers, who claimed they needed access to the home to check taps and pipes, preyed on at least 14 elderly and vulnerable victims stealing thousands of pounds. Alan Roden, Bogus Callers Swoop on OAPs, The Trail of the Con Men, May 16, 2006, EDINBURGH EVENING NEWS.
FN 12 U.S. Department of Justice, Hundreds Arrested in Operation Global Con, May 23, 2006.
FN 13 Bradley Guy Miller knocked on the doors of elderly residents asking for money to help the homeless and victims of domestic violence, telling the people that he was a worker for a non-profit religious group. He altered $5 donation checks for the needy into $50 checks for himself, making $70 to $100 per day. Senta Scarborough, Police: Mesa Man Bilked Seniors in Charity Scam, ARIZONA REPUBLIC, June 1, 2005.
FN 14 A New Jersey attorney admitted bilking a 90-year-old client out of her home and life savings by drafting a power of attorney for her two "new friends" and helping them sell her home. Michelangelo Conte, Slap on the Wrist for Scam Attorney, JERSEY JOURNAL, July 9, 2005. Christchurch, New Zealand, solicitor stole $700,000 from elderly client using an enduring power of attorney. Dean Calcott, Four years jail for breach of trust, April 6, 2006.
FN 15 An insurance salesman made cash withdrawals and took out loans against life insurance policies he had sold to elderly clients. He also diverted premium payments for his own use. Former KC man gets one year for fraud, KANSAS CITY BUSINESS JOURNAL, May 17, 2006.
FN 16 Owens v. Mazzei, 1743 EDA 2003, 2004 Pa. Super. 106 (April 7, 2004) (bank employees and bank civilly liable for using undue influence to persuade 82-year-old customer to name branch manager and assistant manager as beneficiaries of a pay on death account and consolidate all other accounts and deposits totaling over $600,000).
FN 17 Travis Lau, Caregiver Allegedly Stole Woman's Credit Cards, EVENING SUN, April 9, 2005.
FN 18 Shelley Hodgson, Fake Cop Sent to Jail, HERALD SUN NEWS, May 13, 2006.
FN 19 Man Accused of Stealing $200,000 from Elderly Woman, CLICKONDETROIT.COM, July 1, 2005. In Connecticut Lynda Gardner befriended 77-year old women and began running errands for her. Gardner drained the victim's savings, checking and life insurance accounts, forged 65 checks and used the woman's PIN to access accounts at least 76 times, totaling $236,000. Tracy Kennedy, Mother and Son Plead Not Guilty to Fraud Charges, REGISTERCITIZEN.COM, April 27, 2005.
FN 20 Hurme, Perspectives on Elder Abuse (2002).
FN 21 Ronald Block was once a true friend, who spent years keeping Norman Roussey's accounts straight and his house clean until, tempted by Roussey's impaired mental state and bulging bank account, he finally gave in and plundered his friend's finances. Jason Dearen, Friendly Fraud: The Closest Person in His Life Took almost Everything He Had, INSIDE BAY AREA, April 11, 2005.
FN 22 San Diego prosecution team was successful in overcoming the defense that the victim willingly gave away by proving that the victim's consent had been stripped away by undue influence. Judy Campbell, Elder-abuse Prosecution Guru Sheds Light on Crimes, INSIDE BAY AREA, April 11, 2005.
FN 23 Binational Working Group on Cross-Boarder Mass-Marketing Fraud, Mass-Marketing Fraud; Report to the Attorney General of the United States and the Solicitor General of Canada (May 2003).
FN 24 An older woman was told that to win the "International Lotto" she had to wire $2,448 to cover "insurance fees." When she resisted she was threaten with legal action if she did not forward the money to claim her prize. Bryce Mursch, Elderly Graniteville Woman Victim of Lottery Scam, WISTV, Columbia SC, May 17, 2006.
FN 25 Caroline Mayer, Banks Honor Bogus Checks and Scam Victims Pay, Washington Post, June 1, 2006,
FN 26 Senior Citizen, Son Hunts Down Scammers, WPBFNEWS.COM, June 23, 2005.
FN 27 South Florida insurance agents were arrested for convincing clients to liquidate annuities to invest in a bogus company that would buy and sell distressed real estate with returns of up to 9 percent. No real estate was purchased, but phony investor statements were sent until the scheme collapsed. DFS Arrests Two S. Fla. Agents in $1.2 M Ponzi Scheme, INSURANCE JOURNAL, May 17, 2005. Gladys Meija, a 70-year-old restaurateur who would prefer to be retired, gave a frequent customer $50,000 to invest because he guaranteed 5 to 6 percent return so she could retire. The scheme collapsed and she now works two jobs to pay her bills. Penne Usher, Local Senior Victimized in Investment Fraud, AUBURN JOURNAL, July 8, 2005.
FN 28 Elizabeth Nash, Pensioners Fight to Recover Savings After Scam, THE INDEPENDENT, May 11, 2006. Fourteen older New York investors lost more than $1 million to a confidence scheme to sell rare coins that -- they were promised -- would be repurchased at a 20 percent premium in a year. Robert E. Kessler, Three Charged in Rare Coin Scheme, Newsday, January 21, 2005.
FN 29 More than 1 million consumers have been tricked into divulging their personal information to senders of phishing emails, with industry losses totaling nearly $1 billion. Bob Sullivan, ID Theft Concerns Grow, Tools Lacking, MSNBC.COM, June 23, 2005.
FN 30 Hafemeister, supra note 7, at 391-392.
FN 31 Congress is currently considering the Elder Justice Act (S. 2010). Its passage would provide a much needed federal focus point, and potential resources, to address elder abuse. NAELA is a member of the Elder Justice Coalition supporting passage of the EJA.