Protecting the Elderly from Financial Exploitation: The Dilemma and Solution, Part I

Approximately 5 million Americans have dementia, and about half of people over 85 have Alzheimer’s or another type of dementia. As the population ages, the number of people with diminished capacity is increasing. By 2050, 20% of the US population will be over 65. In 2011, 65% of men and 38% of women in this age group reported some type of disability. Many elderly people are at risk of exploitation, and the Met Life study found that financial abuse of elders results in a loss of $2.9 billion annually. Women are more likely to be victims, especially those living alone and needing help with daily activities. In a 2011 study, it was found that over half of elder financial abuse cases involved strangers, while a third involved family, friends, and caregivers. Only 12 percent involved professionals like insurance advisors and lawyers.

Florida law does not protect people with diminished mental capacity from being taken advantage of by others. In a court case, it was ruled that as long as a person is mentally capable, the courts won’t interfere with their decisions, even if they are being influenced by someone else. This was seen in a case where an elderly woman married a much younger man, who was later accused of using undue influence to get her to give him her money. Even though a court found that he had influenced her, a trust she created was still valid because she was mentally capable at the time. After Mark and Ann got divorced, they got married again really quickly. Ann tried to cancel a trust and move the assets into her own account, but the bank thought that Mark was pressuring her to do it. The court said that Ann was influenced by Mark and couldn’t cancel the trust. But then another court said that Ann had the right to cancel the trust because she was still capable of making decisions for herself. They said that it’s important to respect a person’s choices while they are still alive. In simple terms, the court should not interfere with a person’s decisions about their own money, even if someone else is trying to influence them. This applies even after the person has passed away. This hands-off approach also applies to cases involving guardianship. In a case involving a woman named Ms. Maynes-Turner, she was declared incompetent and her children appointed as her guardian. However, she filed a suggestion of capacity and the court partially restored her rights. A doctor testified that while she may have the necessary ability for restoration, her judgment may be suspect. Despite this, the appeals court restored Ms. Maynes-Turner’s full capacity, stating that the deprivation of her rights outweighed any protection from potential unwise decisions. Another case, McJunkin v. McJunkin, also emphasized that concerns about potential harmful decisions are not enough to take away a person’s rights. A person with diminished capacity can still make legal decisions, and the line between diminished capacity and incapacity is not always clear. Every person has the ability to make decisions and enter into transactions unless they have a significant mental impairment. Guardianship capacity is the ability to handle specific rights and responsibilities, such as managing property and making decisions about health and safety. It is the same as legal capacity and requires clear evidence of incapacity before any rights are taken away. Diminished capacity refers to a mental condition that is not as severe as insanity. The Model Rules of Professional Conduct provide some guidance to lawyers when they have clients who may not be able to make decisions for themselves. The rules say that lawyers should try to keep a normal relationship with these clients, but they can also take steps to protect them if needed. The rules acknowledge that these clients might still be able to understand some things and make some decisions on their own, but they may need extra help with important decisions. The rules also say that lawyers should take into account things like the client’s ability to explain their decisions, their state of mind, and whether their decisions are fair and consistent with their values. The American Bar Association handbook talks about how lawyers should help older adults who may have trouble making decisions. It suggests that lawyers should assess the person’s thinking and understanding before helping them make important decisions. But the handbook doesn’t say much about protecting the person from being influenced by others. This is a problem because older adults with trouble making decisions are more likely to be taken advantage of. There are some legal cases in Florida where this has happened, and the law can be used to challenge unfair decisions, even after a person has passed away. These are references to legal cases and statutes in Florida. Some of the statutes deal with how to determine if someone has the capacity to make health care decisions, and others deal with guardianship for adults who are unable to make their own decisions. The last part is about a lawyer who is board certified in wills, trusts, and estates and is a member of a committee in The Florida Bar. “In order to uphold the values of serving the public, improving the legal system, and advancing the study of law, the Elder Law Section works to educate its members and support justice for all.”

Source: https://www.floridabar.org/the-florida-bar-journal/protecting-the-elderly-from-financial-exploitation-the-dilemma-and-solution-part-i/