Can you protect mom from financial exploitation?

“Mom had money in her account last I looked, but now it is gone!  What can I do?”

This is a too common issue for our older population.  Financial exploitation can come in many forms, including scams, theft, cons, and so on.  It can happen by phone or email, or in person.  For example, consider the sales person who offers to paint the house for an outrageous sum, and then does a poor job or simply never shows up.  Mom doesn’t want to complain because “he was nice a nice young man!”  And, she is embarrassed to ask you for help.  Yes, it happens more often than you think, and you don’t have to be incompetent to fall for a scam or a “nice young man”.

But maybe the most common form of financial exploitation (or financial abuse) is when a relative takes money from the elder’s bank accounts.  We have had several clients recently for whom this has happened.  As a family member, how can you prevent it?

Simply put, this is a hard issue.  It is nearly impossible to stop every kind of abuse and exploitation.   You can help best by staying vigilant while she can still make decisions and take advice.  Eventually, she may actually lack capacity to make financial decisions (also known as being “incompetent”).
If she is incompetent, then she cannot sign anything legal.  To get to that point, you have to have her declared incompetent by a doctor.  Then, future documents would be invalid (such as if a person got her to sign a deed or a new POA).  But, you’d still have to prosecute the event, by filing criminal or civil charges to reverse anything done.  In some cases that might be too late because the perp will have spent the money or be unable to comply with a judgment.
And, even if she is actually found incompetent, she can still take actions (like taking funds from the ATM) that could result in problems.
Guardianship is a reasonable solution, but sometimes doesn’t help much more because mom could still wield a pen or an ATM card, or she can give the ATM card to the exploiter.  Even if the banks and everyone else know that she is incompetent, it might be preventable, but, that is about the same result as for the POA document.  The advantage to guardianship is that you would have court oversight, so she would simply not have any ability to spend her own money without court approval.  But, that goes both ways … you are also under that same authority, and would need to manage and get approval for her entire life (literally).  And, it is possible that you would win a full guardianship in most courts … but most clerks prefer to make it limited, it is an adversarial hearing, and she will be defended by a lawyer during the process.  And it has to be held in the county in which she resides, which can be an issue for an out-of-state child looking to help mom.
Further, if she is incompetent, she won’t be of any help in explaining what happened or preventing issues or exploitation.  And she will likely deny any problems even if you bring them up in plain view.
If you wanted to proceed with protecting her more, I could suggest some or all of the following:
  • have her evaluated and found incompetent
  • get a formal letter from a doctor that states that
  • notify the banks she deals with and anyone else she might work with for financial matters that she has been found incompetent and that you are the proper authority, give them copies of the letter and the FPOA
  • Keep an eye on her bank accounts for improper activity
  • If she does sign or spend due to another person’s influence, file for the guardianship and press charges or get Adult Protective Services involved as needed.
Beyond that, you can only remediate, not prevent, when you are not physically in control.
How can you gain control?  If you are her agent under a Power of Attorney, then one way to get control is to move everything to bank accounts that you control and give her an allowance via a check, autodeposit to her existing account, or a reloadable credit card.  Most of this could be automated.
You might also want to apply to be the Social Security representative payee and move the SSA deposits to the bank account you control.  You may have the right to do this as her Financial agent under the POA, and you probably should do this once she is found incompetent.  Sooner, if you can get her to agree.  But be aware that such a move may create issues in the family, or could be closely scrutinized by Medicaid.   Taking control may be required, and it is a big step.
Ultimately, the finding of incompetence is an important first step that starts the ball rolling.
If you have questions, contact us.  We always suggest that you also find a Professional Aging Life Care Manager in her community to help.  Check out our resources pages for more information or this website.

Change the Will when the testator must downsize?

Downsize Needed?

Sometimes, people will have a significant list of items in their home to go to others. But, when it is time to downsize, and move to a new smaller residence or to assisted living, what should a person do with them?

In general, the advice I give is in two parts… sell it, or give it now.  Which choice depends on the answers to a couple of questions:
  1. Does the testator (the person writing the Will) need money that would be gained through sale of the items?
  2. Can the testator fit certain (or all) the items in the new downsize residence?  Does she even want to take them all?  Can she afford the cost of moving the items?
  3. Will the persons to whom the items were intended be a able to take them now, and/or be upset if the items were not available in the future?  This might happen, for example, when grandkids are the intended recipient and they do not have a place of their own or are still living at school.

Give the gift now!

Usually, the gift given during the testator’s life is more appreciated than after death.  And, the testator can enjoy seeing the recipient have the gift and use it.  Wonderful memories are shared when grandmother’s pearl necklace is given to a great-granddaughter along with the story of how she got it in the first place!  Or, of hearing the piano played by a grandchild who could not afford one for many more years!
And, if you do decide to give the gifts now, do these two things as well:
  • Gift them as instructed in the will  – it fulfills her wishes ahead of time, and it will prevent hurt feelings when the will is later revealed and everyone sees that the “wrong person” ended up with the necklace, piano, painting (or whatever).
  • Then, mark a copy of the will with gifts given out and identify which she still has with her.  That will make the executor’s job a lot easier in the future!

The choice to downsize can be a difficult time for lots of reasons.  Derive immediate joy by gifting the important personal possession now.

Filling in your NC Health Care Power of Attorney

Sometimes I am asked about the Health Care Power of Attorney .. .that is the document that names an “agent” who will be able to make medical decisions for you when you cannot.  It is an important role.  But, what do you put in the various spots?

Here is the blank form used in NC for standard choices for the health care agent under a power of attorney.
For section 1, you would simply fill in the name of the advocate you choose, and if you would like a second or third, add those.  Please be sure to enter the contact information because if you need help, your doctors need to know how to reach the agent you are naming.
I advise NOT entering a physician in section 2.  The language allows your attending to start the process of deciding when to call on the agent … you don’t want to wait until your primary care doctor returns from his annual 2-week trip to Yellowstone…
If your family knows your wishes in section 5, no additional entries are needed.  But, you might have some religious or other limitations.  For example, if you wish to refuse blood transfusions, you can enter it in part B.  Also, you can (and should) tell doctors to turn off your pacemaker.
If you would like to specify organ donation chose one of the blocks to initial in item 6 (or leave them blank, it is not required).
Then have it witnessed and notarized.  The notary has to see all the people sign it, so don’t sign it and then take it to a notary.
Witnesses CANNOT be related to you, or be caregivers, or heirs.
You can often have the document notarized at a bank, the hospital, or of course, you can come to our office.
Once completed, you keep a copy for each of the agent advocate, and then send /give the original to the doctor’s office or any doctors you use as specialists.  Usually just your primary care doctor is sufficient.
Let us know if you’d like to come in to have it witnessed and notarized.  Call at 919-883-2800.
Or if you have more questions, schedule a complimentary strategy session on aging and long-term planning.

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