Due to the recent sensationalism of the Mickey Rooney case, we were asked by a reporter with the Wall Street Journal to provide anecdotal stories for an article about how to protect vulnerable seniors from financial abuse. The key focus was, specifically, to examine the misuse of financial powers of attorney by trusted persons. Our team reviewed our files and found that we had clients who had experienced substantial loss of assets from the following:
The bad son
The bad daughter
The bad neighbor
The bad grandchild
The bad hired caregiver
In each case, we discovered that the abuse of the senior began before anyone would have considered that person legally incapacitated. Loss of the ability to protect oneself often precedes actual loss of capacity. The truth of this statement means that senior citizens become highly vulnerable to financial abuse long before the law sees them as needing the protection of “the system.”
A report released by the National Center on Elder Abuse confirms what we found in our research. The report mentions that “between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection.”
One of the most important findings of our internal research was that in every case except for the “bad hired caregiver,” an attorney had prepared the financial power of attorney which a loved one or trusted neighbor used to betray the principal. I was asked by the reporter, “How could that happen?” I did not have a good answer to give to her.
The truth is that aside from doctors, it is the bankers, financial advisors and attorneys who may be in the best position to spot the first warning signs of Alzheimer’s or dementia. This article in the New York Times states that “New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements.” Unfortunately, most financial or legal advisors are not trained to look for these signs, and they are not educated about what actions to take if they do start to notice warning signs.
Most advisors will tell you that their first duty is to their client, so what is an advisor to do when a client asks (often quite reasonably) to change their will or power of attorney? “Financial advisers and lawyers say they are finding themselves in a bind when their clients’ minds seem to be slipping.” Elder law attorneys such as myself may have an edge when it comes to recognizing the signs of dementia or abuse, but many families don’t think to consult an elder law attorney until it’s too late; other advisors need to be made aware of some of these warning signs.
We as attorneys can make a difference in protecting vulnerable seniors from financial abuse. We need to have a heightened degree of skepticism when anyone approaches us and seeks to create a power of attorney. At the very least, we must interview the prospective client/principal independently. We are not trained to administer a mini mental health exam—but under the new Illinois Rules of Professional Responsibility, we can work proactively to protect vulnerable seniors.