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A Warning to Those Who Commit Financial Abuse of the Elderly

Financial abuse of the elderly occurs when a person, often a relative, exercises undue influence over the affairs of another person who is unable to manage his or her own resources. Under California law, a person who commits elder financial abuse cannot benefit from the victim’s estate. In such cases, which usually involve the abuser forging or coercing the victim’s signature on new estate planning documents, the court will disinherit the abuser of his or her ill-gotten gains.

A recent California appeals court decision provides a cogent example of elder financial abuse. The case is discussed here purely for informational purposes and should not be construed as a binding statement of California law. As always, you should consult with an experienced California estate planning attorney who can advise you on the particulars of your own case.

Taking Advantage of a Mother’s Mental & Physical Decline

Helen Campbell had five children. In 1993, Campbell and her husband established a revocable living trust as part of their estate plan. The Campbells amended their trust several times, and by 2007, Helen was serving as co-trustee together with two of her children, Dennis Campbell and James F. Campbell. Helen Campbell’s husband died in 2008. Under the terms of the trust at the time, upon Helen Campbell’s death the trust, including her home, would be divided equally among the five children.

According to court records, Dennis Campbell and his sister, Doreen McAlister, committed elder abuse against their mother. Helen Campbell was placed in hospice care in 2007, although she did not pass away until 2010. By 2009, the 90-year-old Campbell suffered a severe decline in her mental and physical condition. During this period, Dennis Campbell used his position as trustee to execute a promissory note against his mother’s house, claiming his late father owed him $65,000. There was no documentation of such loans, however. Dennis Campbell also executed a ten-year lease allowing him and his sister to live in their mother’s house rent-free. Finally, the two siblings had their mother amend her trust so that they alone would receive the house after Helen Campbell’s death, eliminating any share of her three other children.

After their mother’s death in 2010, the three excluded children filed suit, claiming Helen Campbell had been the victim of elder financial abuse. Both the trial court and the court of appeals agreed there was substantial evidence of Dennis Campbell and Doreen McAlister’s misconduct. For example, the Court of Appeals noted that Helen Campbell’s condition had deteriorated to the point where she could not see, hear or understand the trust amendment altering the distribution of her property.

In upholding the findings of financial abuse, the appeals court also upheld the trial court’s decision to disinherit Dennis Campbell and his sister. Under California’s probate code, persons who commit elder abuse are presumed to have predeceased their victim, meaning only the three remaining children will share in their mother’s estate. The Court of Appeals said the legislature intentionally provided such a harsh remedy in order to “deter” others from abusing the elderly or infirm.

Do You Suspect Elder Financial Abuse?

It’s important to note that an elderly person who changes her will to favor one child over another is not necessarily the victim of abuse or undue influence. Courts make fact-specific inquiries into each case to determine whether abuse occurred. If you have any questions or concerns about elder financial abuse, please contact the Law Office of Scott C. Soady in San Diego.

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