I’ve previously written about the sad subject of elder financial exploitation. I had it happen to a dear aunt of mine back in 2011, Elinor Howenstine.
After my horrible experience, I concluded our legal system just doesn’t care about the elderly much, contrary to whatever you might think.
The lawmakers (and courts) could easily clamp down on this kind of financial elder abuse by passing harsher laws, with stiffer penalties, but they won’t.
California passed some harsher laws a few years ago in 2016 by imposing civil and criminal penalties against the bad actors for doing this awful stuff (after decades of abuses against the elderly) but that was five (5) years too late for my situation.
Under the old California laws in 2011, I was faced with the dilemma that the law offered me very little if I won in court over undue influence. If I prevailed, the recoupment of my legal fees would come out of the trust, for which I’m a beneficiary, so I would lose money even if I won.
In 2011, there were no criminal nor civil penalties against the bad actors. It was a lose-lose situation. If a person doesn’t contest the validity of a trust/will document within four (4) months (an outrageously short amount of time) it’s considered final.
Even today, the national news headlines are still filled with reports on the rising epidemic, like here as reported in the Wall Street Journal. The CFPB estimates seniors experienced 3.5 million incidents of financial exploitation every year, including fraud perpetrated by strangers or theft by caregivers and family members.
The vast majority of elder financial abuse cases are never even discovered, let alone litigated due to excessive costs of lawyer fees which few can afford. In the few cases that are litigated, there is little to no punishment for the bad actors involved, including the attorneys that helped facilitate the dirty deeds.
Unfortunately, the only advice most get is the meaningless “consult a lawyer” (aka “spend your money”) advice which fails to address the biggest problem in doing so – the legal costs and absence of punitive damages even if you win.
The lowest “retainer” you can hire any lawyer for is $10,000 dollars, which a lawyer will burn through just talking to you over the phone in the first month. Then, preparing for a simple pleading for a case can easily cost another $10,000 dollars in fees. You can easily burn through $50,000 in legal fees before even setting foot in court.
Who has that kind of money? Very few, which essentially means almost nobody.
In the last year, all types of elder financial abuse and exploitation have been all over the news, such as phone call scams, sketchy investments, identity theft and complex will manipulations. The list of hustles is endless.
The most infamous case of elder exploitation in the last few years involved heiress Huguette Clark. Her exploitation led to dozens of probate lawsuits, with many versions of her trust/will papers signed right before she died (common pattern) which is usually how these type of abuses occur.
There was also the recent case involving Stan Lee, the legendary Marvel Comics creator/author behind Spider-Man and Iron Man.
Stan Lee’s daughter, J.C. Lee, had enough money to litigate. She prevailed in defeating the manager in court. Even after all that expensive litigation, the manager’s lawyer then tried to claim he represented Stan Lee, too. It was a mess.
In most instances, there are no penalties for exploiting the elderly – the worst case is whatever they’ve done is nullified, but if they succeed, they get away with whatever financial gain they’ve engineered.
There is a book entitled The Wolf at the Door: Undue Influence and Elder Financial Abuse by California lawyer, Michael Hackard. It details all kinds of elder financial abuses. No two cases are alike but they usually all involve money or property of some kind. Mr. Hackard has a blog post detailing the case about Stan Lee.
I personally had to deal with elder financial abuse when my beloved aunt, Elinor Howenstine, (a wealthy boomer) who passed in February 2011. Some scoundrel relatives of mine (the Howenstine “wolves”) didn’t like her final wishes. Millions were at stake.
One uncle, who lives in Ohio, had already been involved in a prior family legal dispute involving “last minute” changes to a relatives’ will, which he claimed left him a family farm. That dispute led to probate litigation, too.
Another uncle who lives in Houston, was also involved and I least expected him. But, as I soon learned, the rich always want to get richer, and familiar relations are no match against greed.
These relatives foisted themselves at my aunt’s bedside like wolves (she was legally blind and had dementia) and they “somehow” got her to sign “revised” amendments to her trust which enriched some in the family and cheated others. It all happened very quickly. She had no idea what was going on.
All it takes is one lawyer to help make the ‘changes’ – they don’t care – there is no penalty. The standard (the ‘bar’) for mental competence is so low as to be non-existent. This “new” lawyer, Linda McCall (Sideman & Bancroft LLP) was brought in (by whom?) to ‘assist’ in all fiasco all without my aunt’s POA and trustee or prior attorney involved.
Here’s a video explaining how it happened to my aunt.
How does a blind person suffering from dementia hire, interview and retain an attorney? Was the retainer agreement written in Braille?! Who was “directing” the lawyer?!
Lawyers give bad actors an aura of legitimacy and they can easily hide behind any number of arguments to justify their actions for $250 hr. It’s all about billable hours. “She looked competent enough to me to sign papers. Trust me, I’m a lawyer!” We all know how the legal hustle works.
Just because a lawyer is involved does not mean it’s “legal” as lawyers routinely do things which are nullified later in court (aka “illegal”). There are no penalties for the lawyers.
Who the elder person’s lawyer is taking legal directions from – the client or certain others?
A simple court case of elder financial abuse challenging wills/trust papers can easily cost $100,000 dollars in legal fees, so there are tremendous roadblocks.
In my situation, it created a giant shit storm and split the family – the bad acting family members didn’t give a damn. Decades of family bonds split in an instant – all for money. While this all sounds heinous (and it is) the current legal system nationwide essentially legalizes elder financial abuse in many instances.
Even if you win, there is no punitive penalty, nor ability to recoup legal fees, except in rare instances. And the best witness to testify – the victim – is dead. Good luck! That’s why so many people are doing it – family members, caregivers, nurses, lawyers, etc. It’s a free for all. The wild west.
And, be forewarned, it’s usually the ordinary church going types – the ones you least expect – that commit these greedy acts. They will sit there and look at you and proclaim their devout holiness of virtue. Then, they reach around behind your back, hold up grandmas hand and ‘help’ her sign her revised will removing you and naming themselves and their grandkids as beneficiaries.
I’ve lost all faith in humanity after seeing the awful behavior by my relatives. The nicest people turned into blood fanged wolves.
*Update: After this post was published, on May 14, 2019, the former business manager of Stan Lee was charged in California with five counts of elder abuse. The felony charges filed Friday by Los Angeles County prosecutors include theft, embezzlement, forgery or fraud against an elder adult, and false imprisonment of an elder adult.
*Update: In 2020, Mary Trump, the niece of President Donald J. Trump published a book detailing about how Donald Trump exploited his elderly dad, Fred Trump, in his final months. Similar to my situation to make ‘amendments’ to his dad’s final will, enriching himself while cheating relatives. Mary Trump also filed a fraud lawsuit against Donald J. Trump after realizing even more fraud occurred in probate. The lesson to take away here is simple: the American legal system has legalized most types of elder financial abuse.
NPR Marketplace had a radio expose entitled ‘Brains and Losses‘ about elder financial exploitation. The series explores new cognitive research on how the aging brain may become more susceptible to financial scams.
For further information:
Elder Financial Protection Network
National Center on Elder Abuse