Elderly Exploitation: Don’t Be a Victim

Your parents saved money for you and your siblings their entire lives.  In their later years, mother moves into a nursing home during the latter stages of Alzheimer’s, after father has passed on.  A young man, pretending to be her son, has your confused and unsuspecting mother sign a power of attorney in his name.  By the time you learn about the impostor, all of your mother’s bank accounts have been emptied.  Tragic and heartbreaking, but it happens every day.

The above scenario is a classic example of elderly exploitation, which is rampant in Florida (and elsewhere).  Seventy-five percent of victims are between the ages of 70 and 89 – another reason Florida is a prime target – and although there are millions of financial abuse victims each year in the U.S., according to a 2005 Senior Forum Report by the White House, only one in 100 cases are reported.

Unlike in the scenario above, the perpetrator in elderly exploitation cases is usually someone very close to the elder, such as a niece, nephew or neighbor, and they convince the elderly person to execute a Will in their favor.  The perpetrator uses their familiarity with the elder person to establish a close and confidential (fiduciary) relationship, and purports to act as their caregiver.  The other family members also trust this person, and generally don’t discover that the decedent executed a Will in favor of the “caretaker” until the elder person has passed.  The rightful heirs’ (typically the children) recourse is to challenge the contested Will in court, and we explain the difficult process in this blog post.

Under Florida law, any person who proves that he was injured in any fashion by reason of any violation of the Florida statute on exploitation of an elderly person has a cause of action for threefold the actual damages sustained.

According to Fla. Stat. s. 825.103, exploitation of an elderly person means: “knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person… of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person.”

The person that commits this fraudulent act must be a person that stands in a position of trust and confidence and has a legal or fiduciary relationship with the elderly person, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or caregiver.

If you believe that you or your elderly family member is a victim of this type of exploitation, as described in the statute above, you will be required to prove that the Will was secured by fraud, duress, mistake, or undue influence.

In order to determine whether the Will was obtained through undue influence, the perpetrator/beneficiary under the Will must have been active in obtaining the Will. There are several factors the Court will consider regarding active involvement, including: (1) he or she is present at the execution of the Will; (2) he is present on occasions when the elderly person has expressed a desire to make the Will; (3) he has recommended an attorney to create the Will; (4) he knew the contents of the Will prior to execution; (5) he gave the attorney instructions on the preparation of the Will; (6) he secured witnesses to sign on the Will; and/or (7) he kept the Will for safekeeping after its execution.

If you can prove that the Will was obtained in such a manner (although you need not meet all of the listed criteria), you win your case, right?  Not so fast – once the Court finds a presumption of undue influence based upon the above factors, the burden to prove the Will was not secured through fraudulent means merely shifts to the proponent of the Will, and on we go.

Long story short, challenging a Will in Court is a painstaking process.  It is better to avoid this scenario in the first place.  Please contact a probate attorney to discuss how to protect you and your family members.  You can find a great probate attorney here, www.familylawprotection.com.

You need aggressive litigation attorneys to fight for you during this sensitive time.   The Trembly Law Firm has extensive experience in challenging Wills signed as a result of undue influence.  If you or someone you know is facing this unfortunate situation, we can be reached at 305-431-5678.

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Written by Brett Trembly

Brett Trembly

In the South Florida legal community, Brett sits on the Board of the South Miami Kendall Bar Association, the Florida Bar 11th Circuit Grievance Committee, volunteers on the Florida Bar Young Lawyers Division Mentoring Program, the Dade-County Bar Associations Rainmakers Committee, and annually volunteers for Miami-Dade County’s Ethical Governance Day.