Abuse and fraud perpetrated on the elderly is a growing problem. I would like to share some case law and thoughts regarding the matter.
Let’s start with the case of The State of Florida vs McGee. Chicquita McGee was recently sentenced to twelve years in jail and ten years of probation when she gets out. She had pleaded guilty to defrauding a wealthy elderly couple of over $500,000.00 and was facing up to forty-five years. McGee was an aid and the caregiver to the aging and failing couple The accountants found that the money was used in part to purchase jewelry, a cruise and for plastic surgery.
It wasn’t hard to get access to their credit card and checkbook, to open their mail and to control them both mentally and physically. Albert and Michelina Martinelli of Johns Island, Vero Beach, had actually put Chicquita in the position to commit the fraud. She could always say that she was receiving gifts for her exceptional services and the elderly couple were sufficiently impaired to be unable to deny it.
The trick is to keep relatives and friends away.
Keep telling the elderly couple that she was the only one who cared for them and that their family had abandoned them.
In another case, a caretaker from El Salvador, looking after a ninety-two-year-old senile doctor told him that she was the only one who cared for him after she blocked out all of his phone calls and collected all of his mail. She told relatives that he did not wish to talk to them or see them. She told friends and neighbors that he was too ill to visit with them. She convinced the doctor to pay for her son’s education. Then she drove him to her attorney’s office and sat next to him at the interview and was at his side when he signed a new Will leaving everything to her and her children.
The doctor’s children litigated after his death. The lawyer who drew the Will testified that Doctor Rosen was just fine and knew exactly what he was doing. The law, designed to protect the elderly, provided that each person had the right to dispose of his or her assets in any manner they chose. After all it’s their money. So long as they know what they are doing. Even if a person is unable to function in one capacity, such as conducting their business affairs, they may still dispose of their property as they choose.
It isn’t surprising that the estate cases are usually settled. Lawyers know this. A cottage industry of thievery and abuse of the elderly, particularly by Salvadoran care givers was established in Miami.
My friend, Barbara di Tullio was in and out of hospitals and nursing homes before she passed away. I was her personal representative. I found her jewelry box and jewelry pouches lying empty on her bed cover shortly after she died in the hospital. “Who did it?” Her best friend had previously tried to keep the jewelry after Barbara entrusted it to her to hold it during a hospitalization. Barbara had to yell, scream and threaten to get the $20,000.00 worth of jewelry back. Their friendship was over. The male attendant had access to everything. The housekeeper had a key to the apartment as did the landlord as did I. Who was going to investigate? Who was there to file a police report?
Who was going to testify?
Barbara’s Will left $20,000.00 to her male attendant. What made him entitled to that windfall? Who am I to question her gifts? I could find no evidence of undue influence.
The attorney who drew up Barbara’s Will created a series of three Wills including himself with increasing powers with each document. He had her giving him absolute authority to select where her estate money would be given for Alzheimer’s research. He never revealed that he intended to give the $800,000.00 in her estate to his own “for profit” company located in China. The cost and attorney fees that we were facing in order to peel back three Wills was significant. The attorney could represent himself and the lawsuit could drag on for years. When I threatened to make a Bar complaint the attorney settled. He was later disbarred for trying to sell land that he didn’t own and trying to acquire it after he contracted to sell it. I donated Barbara’s money to the University of Miami Medical School.
In a wealthy suburb of New York City, a quite affluent elderly lady named Rose Arnold was gradually dying of chronic heart disease. She was the mother of three daughters, one of whom, Arlene, divorced and single, died at age forty-one, leaving a daughter, Joan. The two remaining daughters, Barbara, the middle daughter and Maris, the younger, were very close to one another. Barbara lived near Rose’s New York City apartment, and she took over Rose’s checkbook, making deposits of the stock dividends, paying the bills and supervising the staff of nurses, caregivers and housekeepers at Rose’s summer home. She paid herself a large draw. One day she confronted Rose and warned her that if she did not sign some new documents, Barbara would stop looking after her and she would have to fend for herself and would die all alone. Barbara’s lawyer visited the summer home and Rose signed a new Will in the presence of the household staff. Rose was shown a paragraph that gave a large portfolio of stocks to her daughter Maris and her granddaughter Joan. What she wasn’t shown was a clause buried in the technical language at the end of the Will which provided that the stock portfolio given to Maris and Joan would be sold and the proceeds first used to pay all obligations of the estate including taxes, attorneys and accounting fees and costs. The remainder left, if anything, went to Maris and Joan. Barbara would get the entire huge estate. I was convinced that Barbara was having an affair with her elderly, married attorney. When the ensuing litigation was finally settled Maris gave her share to Joan and to charity. Maris never spoke to Barbara again. Barbara died from cirrhosis of the liver, alone, without friends or caring relatives. No one cared.
When the elderly die or go over the edge they can’t testify about being subject to undue influence. Their family learns that it’s very expensive to litigate. The fees often include the cost of a forensic accountant. The Courts are not inclined to overrule the decisions of the deceased. I can’t recall an attorney refusing to prepare a Will because the client was incompetent. It’s a good way to antagonize and lose some clients. The Courts are very hesitant to find that a person didn’t have the capacity to sign a Will when the attorney who prepared it and the witnesses to the document support it. However, most states have created a government agency to protect the elderly. In Florida there is The Department of Elder Affairs. Keep your eyes open. About ten percent of all elders experience some form of abuse. ~ Lewis