Articles Posted in Elder Law

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No one wants to think about the aging process, let alone all the dangers associated with advanced age and living in today’s world. Education and planning are the two most important steps to preventing any type of issues in the future.

Senior financial abuse scams are a multi-billion dollar industry. This type of abuse not only effects the senior individual but also their families, their financial institutions, taxpayers and all the services that provide relief to the victims. A study was done in 2011 by Metlife Mature Market Institute and they estimated that the annual financial loss from senior financial abuse was 2.9 billion dollars! That number was based solely on the cases that made it to the media.

Seniors are especially susceptible to fraud. This is because we tend to be more trusting as we age, we have more wealth accumulated by that time in our lives, and our worlds become smaller. Generally, Seniors do not have contact with a wide variety of people and become secluded from the outside world. While this is a natural process that comes with age, it also provides opportunity for those who mean to cause us harm. All seniors are at risk for being targeted, but women account for the majority of these types of crimes. I am not convinced this will always be the trend but for now it is. That is due to the fact that women live longer than men, leaving them alone when their spouse passes, and elderly women in 2017 are from a generation where they are used to relying upon others in their lives to help them make important decisions.

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Revocable living trusts have long been an important tool to minimize estate taxes and avoid probate. But these benefits are realized after a death. Growing in importance as the baby boomer generation ages are the benefits a Living Trust can provide long before death. A fully funded Revocable Living Trust can help prepare for the aging process and the cognitive disorders that many elderly experience.

In the normal case a husband and wife creating a Living Trust (the Trustors) name each other as co-trustees and choose a child or a relative to be their successor trustee—the person who takes over management of the Trust when the original Trustors die or become disabled.   This works fine until the Trustors can no longer manage their finances.   Then the nominated successor trustee takes over. Results will vary widely depending upon the skill and honesty of the person chosen for the job. Most successor trustees will do their best.   But many have been chosen because of a relationship—e.g. a firstborn child—and not for his or her competence. Such a trustee may have no concept of what it means to be a fiduciary and might have no experience in managing significant assets. Or, worse, a successor trustee may find it impossible to withstand the temptation of “borrowing” money from the estate or using estate assets for their personal needs. These successor trustees can commit substantial financial abuse and can ruin a lifetime of prudent financial planning. In our practice we have often seen that a child is responsible for the financial abuse of a parent.

In planning for older age, there are some steps that can be taken to minimize this risk. Creating a Revocable Living Trust is a good first step.   Then it should be funded it as fully as possible to place all possible assets under the protection of your nominated successor trustee.

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Every year millions of adults fall victim to some form of elder abuse. It is estimated that the number of cases reported, equals only a fraction of the actual cases of elder abuse that take place. In Maricopa County, Arizona Adult Protective Services takes on more than 10,000 cases of elder abuse per year. Elder abuse is rarely reported for a variety of reasons, seniors may be afraid to report the abuse, they may feel guilty or isolated, and not know where to make a report, they may be in denial of the situation or they may not be able to make a report due to a physical or mental ailment or impairment. For these reasons, it is important for caregivers and other family members to know the signs of elder abuse.

It is difficult to tell when abuse is occurring. Arizona Revised Statute §13-3623 sets forth the definition of abuse. Vulnerable adults in this case are described as adults over 18 who cannot protect themselves from abuse because of a “mental or physical impairment.” This statute also defines the penalties, and the severity of the punishment, for those who commit abuse. Abuse can take many forms. There could be physical abuse, emotional abuse, financial abuse, or neglect. All of these different forms show different warning signs that abuse may be occurring. One important step in tracking abuse is to become familiar with warning signs of the types of abuse and share this information with friends, relatives, and neighbors of the senior so more people will be able to offer assistance in spotting the warning signs of abuse.

Arizona Revised Statutes Title 46, Chapter 4 are the main statutes that govern Elder Abuse. These statutes govern the Adult Protective Serves agency. This agency works with law enforcement and organizations around the state to handle reports of alleged elder abuse. Arizona Revised Statute § 46-454, covers the duty of to report instances of elder abuse witnessed by certain professionals. While there is no duty for the average person, it is critical that even people who aren’t required by law to make reports still participate in identifying potential abuse.