Elder Abuse…It happens in the darndest places

In this family there are five daughters who lost their mother last year.

Their father, 89, (Mr. “H”) has since taken up with a 33 year old woman here on a Matricula Consular ID Card. This is an identification card issued to Mexican foreign nationals residing in the United States.

This card is slated to expire this year. Her real boyfriend is a felon. Mr. H met this woman at church. She became his “caretaker” after his wife’s death. Now she has exacted a promise from him to marry her and she is $50,000 richer.

If she and her boyfriend have their way, this man will purchase a home for them in Mexico. They are working really hard at that. She is working the church circuit.  She has insinuated herself into the community. Her lovely smile belies her manipulations.

The daughters, who are not done grieving their mother’s loss, have begged him to stop seeing her. They begged her to stop seeing him. They begged the church to assist them. They requested my assistance.

The daughters see a father betraying the memory of their mother. I see a man who is fully competent acting like a boy in a candy store. Although this is a very difficult pill to swallow, swallow it they must.

How could something so obviously insidious to the rational eye go on?
Why can’t I, and elder law attorney, do anything about it? It is because our system values independence and autonomy above all else. A conservatorship comes to mind, but that would have serious effects on the conservatee’s (the father’s) life, and the court would not take the petition lightly.

They could proceed with a conservatorship, but they would lose. Mr. H would fight that and would pass every competency test.  To obtain a conservatorship over the person, the petitioner must prove to the court by clear and convincing evidence that the proposed conservatee is “unable to provide properly for his or her personal physical needs, including: health, food, clothing, or shelter.” Mr. H can provide for this since he has a “caregiver.”
To obtain a conservatorship over the estate, a petitioner must also prove to the court by clear and convincing evidence that the proposed conservatee is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.”

Arguably, Mr. H is not able to withstand such undue influence. That is a costly argument to make. In deciding whether to grant a conservatorship, the court will make a comprehensive assessment of the proposed conservatee’s mental capacity. In a nutshell if Mr. H’s daughters chose this path, it would drain considerable amounts of money from the conservatee’s estate.

The fact that one of his daughters has a Durable Power of Attorney has no significance as that document does not deprive Mr. H of the right to manage his own finances or enter in a contract.

In the end, the only suggestion I could make was to have one daughter be added as a trustee on the deed of the house (which is in a revocable trust) that would preclude him from selling it without her consent. Also, now that the church has been made aware of the suspected abuse taking place in its parish(s), they are mandated reporters.

At a minimum, they must investigate the allegations and report their findings, if any, to the police and Department of Social Services.

This story and the many machinations of it happen every day. My advice, (after all that is why you open this newsletter, right?) make sure that you have all of your legal documents in order so that  you or your loved one won’t be in a position to have to resist undue influence.

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