New law aims to prevent financial elder abuse

On Behalf of | Sep 26, 2019 | Financial Elder Abuse

We often focus on the care and well being of an elderly loved one. As it has been mentioned previously on this blog, financial elder abuse often involves caregivers. That is, today, the very people who have been assigned to ensure their emotional, financial and physical safety are financially exploiting elderly individuals. This is generally because caregivers are in a unique position to spend lots of time with them and gain their confidence. Recently, a new phenomenon has emerged in which caregivers have been marrying their clients as a way to further their financial exploitation scheme.

Recognizing the problems with this scenario, California legislature has signed a new bill that will close the loopholes in the law allowing caregivers to take this step. The new law, coming into effect at the start of 2020, will create a presumption of undue influence in certain situations. The new law applies to dependent adults-those who cannot provide properly for their basic needs-and covers donative transfers-those that are lifetime gifts and beneficiary provisions in wills and trusts.

Where the previous law has assumed that dependent adults making transfer instruments to caregivers are doing so under undue influence, spouses and domestic partners have been exempted from this presumption. This was because it was assumed dependent adults would want to make gifts to those close to them. As a result, caregivers who married dependent adults and received transfers from them were cloaked from the presumption of invalidity.

The new law aims to rectify this, by extending the presumption of fraud to caregivers who commenced a marriage or similar relationship with a transferor who is a dependent adult while providing services to that person or within 90 days of the last time such services were provided. The presumption is rebuttable, and if the caregiver can prove their case, the court will validate the transfer to him or her.

Taking advantage of vulnerable elder individuals is illegal, and steps can be taken to both protect elder adults and hold the abusive caregiver responsible. Those who suspect their loved ones are victims of financial elder abuse might want to consult an experienced attorney to discuss their options.