NO BAD DEED SHOULD GO UNPUNISHED:
EVALUATION AND DISCOVERY OF CASES OF FINANCIAL ABUSE OF ELDERS
By William J. Brisk, Esq., and Judith M. Flynn, Esq.
 

A distressing number of elders and their families seek to rescind deeds and other transfers they believe resulted from fraud, undue influence, mistake, duress, or coercion.[1]  All too typical is the case of an elder who conveyed his home to a relative or neighbor for reasons which, once analyzed, are pre-textual at best.

·        Ninety-three year old John sold his home to a grandnephew, Tim, for half of its value, payable in five annual installments.  Tim’s father collected a substantial “broker’s fee” from the first installment.  An attorney, chosen by Tim’s father, drafted the deed, note, and mortgage before she met John at the time he signed the deed.  The documents did not expressly reserve any rights for John, but he was told that he would be welcome to stay with Tim’s family six months a year.  When John returned from Florida, Tim told him he was not welcome. 

·        Alf, also in his 90s, signed over his home to his niece, Doris, who moved into the upstairs unit, promising to care for him.  In fact, Doris virtually ignored Alf for the next four years.  When Alf was suddenly hospitalized and then sent to rehabilitation, Doris changed the locks and barred Alf from entering the house, saying that she could not provide the care he needed.

·        Jean and Marie, unmarried sisters in their 80s, both legally blind and deaf, lived together for over 40 years in the home they had inherited from their parents when, apparently, they deeded their home to a trust which benefited Leonora, one of their nieces.  Soon after Jean died, Marie learned that a trust was paying property taxes on her home.  Marie swore that she never signed the deed, never met Attorney Smythe who drafted both the deed and trust as well as notarized their execution, and that Leonora was her least favorite relative.  Smythe testified at deposition that he twice met with Marie and Jean who, he said, asked Leonora to schedule the meetings so that they could “protect” their home from potential nursing home expenses.  Attorney Smythe admitted that he did not understand that the transfer actually jeopardized Jean’s and Marie’s eventual rights to medical assistance.

·        Christine was in poor health when she named Maxine, one of her two daughters, her agent under a Durable Power of Attorney.  Maxine then signed a deed as agent conveying her mother’s home to herself.  The Durable Power of Attorney did not authorize gifts.  Maxine claims that the conveyance was partial payment for all she had done for her mother, although the deed states no such consideration.

On the other hand, we represent Beth, a young woman who rented an apartment in Mildred’s two-family home for nine years.  Beth performed an increasing number of services for Mildred (who had no children): arranging for 24-hour care (interviewing, scheduling, and supervising care providers and agencies), doing all of her shopping, taking Mildred to medical appointments, arranging for admissions to hospitals and rehabilitation centers, and paying her bills.  Mildred, who told a number of friends that she considered Beth “like a granddaughter,” deeded a remainder interest in her home to Beth.  Mildred’s distant relatives sought to void the deed shortly after Mildred’s death, although they knew about the transfer years before Mildred died.

The conveyances in such cases leave elders with no control over their homes, deprive them of their most valuable asset, and distort their testamentary intents and are  instances of what the National Center on Elder Abuse (“NCEA”) sees as a rising tide of domestic financial abuse of elders.  Approximately forty percent of all reported cases of elder abuse involve some form of financial abuse.  While reports of suspected domestic elder abuse made to Adult Protective Services programs (APS) quadrupled (from 117,000 in 1986[2] to 470,709 in 2000),[3] the NCEA estimates that less than one in five elder abuse cases is actually reported.[4]  The most frequent abusers of elders are their adult children (36.7%), their spouses (12.6%), and other family members (10.8%).[5]

Statutes and case law pertaining to litigation of elder abuse varies among jurisdictions.  Relevant case law in any jurisdiction remains spare.[6]  The cases that are tried usually do not reach the appellate level and, thus, are rarely reported.[7]  The most significant reason for the paucity of case law on domestic financial abuse, however, is that most cases are never brought to the courts in the first place.[8] Victims are often unable to pay for representation, are reluctant to sue people upon whom they continue to depend, and fear that disclosure of their predicament will subject them to ridicule or, even worse, guardianship or institutionalization.  Even a willing client who has the means to finance litigation faces serious obstacles not the least of which is the possibility that he or she,  likely to be the primary witness, may not be an ideal witness or may not even be available to testify when the case comes to trial.

This article is intended to help attorneys who encounter cases of elder financial abuse, whether they are inclined to litigate or not.  Upon learning of possible exploitation, attorneys have a duty to provide sound advice which requires, at the very least, understanding of 1) how to conduct initial evaluation of such cases, 2) what types of retainers are appropriate, 3) particular discovery strategies, and 4) suitable remedies.   Screening usually requires more than a single meeting with a client.   Proper handling of the earlier phases of the litigation can have a significant impact on ultimate success via negotiation or trial. 


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