Articles Posted in ELDER LAW

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It is well known that senior citizens are more prone to fraud than younger individuals. Research indicates that seniors lose an estimated $2.9 billion to fraud each and every year. Now, MetLife’s Mature Market Institute may have found the reason why. They have conducted a study with the National Committee for the Prevention of Elder Abuse and the Center for Gerontology at Virginia Tech into physical brain differences in seniors and the results were astonishing.

The Brain Research

Shelley Taylor, a professor of psychology at the University of California Los Angeles, led the research project. She became interested in the topic when her father was tricked out of $17,000 by two men who convinced him to empty his bank account. Her aunt was also a victim of a fraudulent scheme when she agreed to buy diamond earrings via mail that turned out to be glass.

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With the number of seniors growing, and life expectancy on the rise, many families are weighing the difference between home care and some kind of assisted living for the elderly. Financial concerns always play a role in the debate. Other factors include the stress associated with caring for the elderly and the quality care they will receive.

Changing Norms

The nature and importance of long-term elder care has evolved in recent decades. In the past elder care was almost entirely done by families, as adult children rarely lived far from home and lifestyles allowed more flexibility for helping an ailing relative. Back then, nursing homes were almost unheard of.

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An article in the San Diego Union Tribune recently reported that the rate of elder abuse is growing at an alarming rate as people live longer, baby boomers reach retirement, and the economy is shaky. According to the District Attorney’s office in San Diego, 183 cases of elder abuse were prosecuted in 2006, 208 in 2009, and 2010 saw 238 cases. This may not seem like a lot of cases but experts say that only 1 in 13 elder abuse cases are reported. Other statistics show that one out of 20 will be a victim of elder abuse.

In January here in San Diego, a 93 year old Pearl Harbor Survivor was found in his home, a victim of personal and financial elder abuse. Most elder abuse occurs in the home and most at the hands of family members or “trusted others’ such as caregivers,neighbors, and friends. Other cases involve home improvement scammers, financial planners,home care workers, and even nursing home employees.

Elder abuse can be physical, emotional or financial. In San Diego, the Elder and Dependent Abuse Unit was created in 2000 to identify those individuals who prey on senior and dependent adult citizens. This unit can be contacted at 619-533-3500. Other local resources for elder abuse are the San Diego Aging and Independent Services who can be reached at 800-510-2020, Adult Protective Services at 800-510-2020, US Dept. of Justice Elder Abuse Hotline at 800-640-4661, and for abuse issues at a licensed facility, the Long-Term Ombudsman, 800-640-4661.

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If you do not have a will, or better yet, a trust, your estate will be distributed according to the laws of “intestacy” set forth in the Probate Code. There may be a difference between how your estate is distributed according to your wishes and how it will be distributed pursuant to the Probate Code. Here are some disadvantages of intestacy you might want to consider:

1. The Court chooses the individual who will distribute your estate. The Court will appoint someone called the administrator to manage your assets and distribute them to your heirs at law. Maybe the person appointed is the person you would have chosen anyway but maybe not. Maybe two or more individuals will apply to the Court to be named administrator causing discord in the family.

2. The process of probate takes a long time. When you die without a will or a trust, the probate process here in San Diego typically can take a year or longer. The administration of a trust usually progresses much faster. If there are issues that need court intervention, the trustee can petition the Court for assistance, but most trust administrations are handled without going to court.

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Pets are a large part of our daily life. Pets can provide relief from stress, companionship, and an opportunity to get some exercise and socialization. Pets also can have a beneficial effect on our health in other ways.

A study at the State University of Buffalo showed that people with high blood pressure who adopted a dog had lower blood pressure readings in stressful situations than those without a dog. In another study of hypertensive stockbrokers, those who got cats or dogs were found to have lower blood pressure than whose who didn’t.

A study in Australia found that pet owners also have lower cholesterol levels than people without pets.

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As many people approach their sixties, they begin wondering at what age they should start taking social security. It can be a confusing decision.

Center for Retirement Research at Boston College has a good link to download the Social Security Claiming Guide. This document has all the information you need to determine when you should begin taking social security. There are a number of factors to consider including how much you need in retirement income, your age, if married what your options are to take your spouse’s social security, etc.

Decisions also have to mde about Medicare. For information on Medicare, see this site which will link you to the Medicare website as well as other sites for Medicare information.

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Seniors, especially women, are more vulnerable to elder abuse of all forms. Statistics show that more women than men fall prey to financial abuse.Financial elder abuse can be the taking of money or property from an elder. It can be misusing a power of attorney. It can be changing an elder’s will or trust using undue influence. It can include all sorts of schemes to sell something to an elder or failing to provide agreed services such as caregiving, home repair, or financial services.

Part of the reason more women than men are targeted is that there are more women than men in this country. In 2006 for example there were 21.6 million women 65 years of age or older and 15.7 million men over 65. San Diego county in particular has many men and women who are seniors.

Older Americans in general are susceptible to cognitive decline and health problems. These conditions can lead to frailty, difficulty making decisions, and being easily influenced. Also widows are sometimes in the position of becoming responsible not only for finances but also for home maintenance and tasks that formerly were managed by the husband. They may easily become victims of home repair scams, re-finance, or other financial scams.

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Recently you may have heard about the conviction of Anthony Marshall, son of New York philanthropist and socialite Brooke Astor. Tony Marshall, the only son of Brooke Astor, was convicted of 14 counts of grand theft and larceny for allegedly stealing millions from his mother’s estate while she was suffering from Alzheimer’s disease. The lawyer who prepared an amendment to Mrs. Astor’s will was also convicted on charges of fraud and conspiracy and one count of forging Mrs. Astor’s name to the amendment which changed the distribution of her estate. The amendment was made when Mrs. Astor was almost 102.

Now controversy will shift to what will be done with Mrs. Astor’s estimated $180 million dollar estate. Some people speculate that the conviction might cost the grandsons of Mrs. Astor, Phillip Marshall and his twin brother Alexander, about $10 million each, a fact apparently not known to Phillip when he started a guardianship proceeding in 2006. Phillip petitioned the Probate Court to appoint a guardian for his grandmother, claiming that his father Tony was allowing her to live in squalor, telling her she had no money left, all the while taking millions from her estate. The guardianship proceeding caused prosecutors to begin investigating Tony Marshall which then led to the criminal charges. Phillip Marshall has said he never knew about the inheritance for he and his brother from his father’s estate and that it was “not about the money. He wanted to protect his grandmother.”

Hopefully what this case has done in the real world is raise the public’s awareness about elder abuse. Elder abuse affects about 2 million Americans over the age of 65. It can be physical abuse such as using force or causing physical injury or it can be neglect. Elder abuse can also be financial abuse where someone wrongfully takes or uses an elder’s money or other assets. It can also involve, as in the Astor case, using undue influence of forgery to cause an elder to change a will or a trust. It sounds from the Astor trial testimony that the elder abuse there was both types. If we can help with an elder issue such as one discussed here or any other estate planning issue, call us at Law Office of Scott C. Soady, A Professional Corporation.

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You may wonder how to determine if a loved one is at a point where they should no longer be living independently. It is a hard decision for the individual involved and for family members who want to make sure their loved one is safe but also not be too hasty in suggesting they no longer live alone.

A free online assessment is available which asks questions designed to help you determine whether someone is safe living alone. Based on the answers to a series of questions, an assessment report is sent to you via email. The questionaire was designed by the Health and Disability Research Institute at Boston University. It asks questions like whether the person has had any falls; whether they can walk independently or use a cane, walker, or wheelchair. Questions are asked about whether the individual has difficulty preparing food, grocery shopping, washing dishes, doing laundry, writing checks, balancing their checkbook, and tending to personal hygiene. The test is designed to test basic movement and physical functioning, ability to perform daily tasks, and ability to perform life skills important to independent living.

Such as assessment may be a guide to help you decide if it is time to begin the conversation with your loved one. Part of the conversation should also be to be sure their estate planning documents are in order such as their will or trust and powers of attorney for finances and health care. We would be happy to discuss any elder issues or questions you may have. Call or email for a free consultation.

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