Protecting Financial Exploitation of your Aging Loved One through a Guardianship Proceeding

There is no question that when the economy suffers, so do our seniors. There is a direct correlation between a waning economy and a rise in financial crimes perpetrated against senior citizens. Unfortunately, these crimes are rarely limited to cold calls from preying fraudsters. Rather, they are often committed by family and friends whom the seniors have placed their complete trust in; perhaps a first born son or beloved niece who was appointed as their Power of Attorney. Financial crimes against this vulnerable population happen every single day in this country with increasing frequency.

For example, the following is a story presented to our office at consultation: My brother has never been good with money. After his last business failed and he declared bankruptcy, he decided to move back to New York. At that time, my sisters and I were struggling with how to continue to care for mom in her home. Mom’s dementia had progressed and she needed 24/7 companionship to ensure her safety. So, it felt serendipitous when my brother volunteered to move in with Mom and become her caretaker. Things seemed to be going really well for the first couple of months. Mom seemed happy having her son back in her life and my siblings and I were relieved that we could devote attention to our children and careers again, all the while knowing that mom was safe and well cared for. Unfortunately, this feeling that “all was well with the world” didn’t last very long at all. About three months after my brother moved in there was a new car in the driveway and what seemed like a relentless parade of Amazon deliveries, all clearly for my brother, piled high in front of mom’s door. This continued on for several weeks without us saying anything, but when we noticed he was wearing a new, rather expensive looking, watch we had to question how he could afford such an extravagant lifestyle. It was then that my brother told us that Mom had named him as her Power of Attorney and Health Care Proxy and from here on out he would be “calling the shots”. He said Mom told him he could use whatever he wanted from her accounts and that if he was going to devote the next few years of his life to caring for her, he should be compensated accordingly. Things got pretty ugly from there and now my brother won’t let my sisters and I even visit. We’re worried about Mom. We’ve reached out to her neighbors and they told us that they’ve noticed my brother goes out often, leaving my mother by herself for extended periods of time. What do we do?

What can you do to stop the financial exploitation of a loved one?

If reasoning with the perpetrator proves fruitless a report can always be submitted to Adult Protective Services (“APS”) or the Elder Crimes Unit of the District Attorney’s Office. However, many local agencies are hesitant to take action if the perpetrator is also the caregiver and someone that was appointed as Power of Attorney and/or Health Care Proxy. If you find yourself in this predicament, the filing of an Article 81 Guardianship proceeding will likely be necessary to stop the isolation and abuse. The petition for Guardianship will include a request to revoke the Health Care Proxy and Power of Attorney while having a Guardian appointed with the full authority to appropriately manage the senior’s personal and property management needs. The Guardian may also be given the authority to seek the recovery of any funds that were stolen or misappropriated.  However, the perpetrators of these heinous crimes are unlikely to quietly give up their control over the senior’s lives and finances.  Therefore, one can expect that they will retain counsel to cross-petition and/or contest their removal as fiduciary under the Power of Attorney and Health Care Proxy.

A contested Article 81 guardianship is a complex proceeding during which the Court will adhere to a strict interpretation of the rules of evidence throughout the hearing. This requires representation by an elder law attorney who is also an experienced litigator. A contested hearing demands an individual who is comfortable in a court room and who can handle adversarial situations. A working knowledge of the guardianship rules is not enough when you are staring down a contested proceeding.

At Cona Elder Law, our experienced Elder Law attorneys, many of whom are also seasoned litigators, will help you navigate the complex court process to protect your loved one. We are currently litigating hundreds of active matters, many of which are contested guardianship proceedings. We zealously advocate for our clients while compassionately guiding them through the guardianship process in all court jurisdictions throughout New York State and we’ll do the same for you.