elder law

Beware of Senior Scams!

Posted on by Alex Kincaid

There are many, many good people in the world.  Some strangers would give you the shirt off their back, folks who volunteer their time to help others in need, and those who hold the door open for you as you are entering a store.  Especially in our tumultuous times, it is important to be kind and generous to our fellow neighbors.  However, with the good must come the bad.  There are scammers out there who prey on various populations, usually ones who are more vulnerable.  Beware of senior scams!

What are some senior scams to be aware of?

The ne’er-do well must somehow get in contact with you in order to scam you.  This would usually be via telephone or the internet, but it can also be in-person contact.

  1. Watch out for fake Facebook friends.

The Better Business Bureau reported that a government grant scam is prevalent on Facebook.[1]  The scammer makes a fake Facebook profile that looks like it belongs to a friend of yours.  The “friend” sends a message to you stating that the “friend” received a government grant of some sort.  Of course, to receive the government grant, you must make an initial investment or pay an application fee.

Lessons:

  • Don’t believe every Facebook profile is real, even ones that look like they belong to a real-life friend.
  • All legitimate federal grants are listed on grants.gov.
  • Government agencies will not communicate with you via social media.
  1. Watch out for scam emails, fake pop-ups, and fake bank transfers.

Some scammers will send out an email stating that you have a virus or other malware on your computer.  In one instance[2], the victim was contacted by a company called Premium Tech Support to clean up his computer.  The victim was quoted a price of $599, which he paid.  The company subsequently told him they accidentally deposited almost $80,000 into the victim’s bank account and asked for the money back.  The victim transferred the funds back to the company, only to realize that the initial transfer of funds from the company into the victim’s bank account was phony.

In another instance[3], the senior had a pop-up window appear on their computer that informed them they had a virus.  The pop-up asked for the senior to contact customer support to fix the issue.  Once the senior called customer support, a representative took control over the victim’s computer to remove the non-existent virus.  Paying to remove the non-existent virus was one part of the scam, but then the scammer also had access to sensitive information.

Lessons:

  • Do some research to ensure you are working with a reputable business.
  • If you think there has been a banking error of some sort, contact the bank to determine the real facts.
  • Don’t give a third-party access to your computer unless you know for sure it is customer support from a company that you contacted.
  1. Watch out for home repair scams

Home repair scams can come in many forms.  The first thing a scammer can do is quote you one cheaper price for work and then demand much more after it is finished.  Another way the scammer can operate is to do repairs that you never requested or agreed to.  Or, the scammer can impersonate a building inspector and demand immediate repairs.  Some scammers will up their fear game by telling you that they will put a lien on your home if you don’t agree to what they offer.

Lessons:

  • If a stranger comes to your home seeking to do repairs, tell them you want to get other estimates. This will give you time to see if the company is whom they say they are. Legitimate companies shouldn’t have a problem with you getting other estimates.
  • If you aren’t interested in the product or service, then don’t feel bad saying no. It is your choice!
  • If you tell the scammer “no,” then they will oftentimes try to throw in a last-minute “deal.” Please, don’t fall for it!
  1. Watch out for romance scams

Seniors are vulnerable to loneliness, especially in light of COVID-19 restrictions.  Since you may not be able to go to the places you would normally go to meet people, you may turn to the internet to find companionship.  And there are many legitimate websites to find love!  However, some scammers will create fake dating profiles and try to lure you into a relationship.  Then, the scammer can ask for money, sensitive banking information, or gift cards.

In one instance[4], the scammer talked the senior into doing an illegal act.  The senior went to China to meet her paramour, whom she had met online.  He was mysteriously unavailable to meet when she arrived, but some of his “friends” asked her to take a backpack full of the paramour’s clothing back to Australia.  The backpack contained drugs, unbeknownst to the senior.  After taking the backpack through airport security, she was arrested and sentenced to death.

Lessons:

  • Don’t rush into any relationship.
  • If the person cannot be available to video chat, they may not be who they say they are.
  • Do an internet search of the individual’s name and profile pictures.
  • If an in-person meeting occurs, do so in a public place.
  • Definitely don’t send any money to someone unless you are confident it isn’t a scam.

Why don’t seniors report being scammed?

Unfortunately, many senior scams go unreported.  Between 2 and 3 million seniors get scammed every year.[5]  However, on average, only 1 in 44 cases is reported.[6]  But why?  One reason is that many seniors are embarrassed that they were scammed.  They think that others will think them unfit and may even “put them in a home.”  Another reason financial exploitation isn’t reported is the perpetrator is a family member, and the senior doesn’t want to see them get in trouble.

Where can you go for help?

If you or a loved one thinks they have been the victim of a scam, there are ways to get help.  You can call your local police department or call 1-800-677-1116 to reach the Eldercare Locator. This government-sponsored national resource line helps folks find contact information for Adult Protective Services in their area. Here are some more resources to keep handy:

FBI’s Internet Crime Complaint Center

Federal Trade Commission

National Institute of Justice

National Adult Protective Services Association

[1] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/government-grant-scammers-using-your-friends-facebook-profiles.pdf

[2] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/brook-park-man-loses-$80000-in-tech-support-scam.pdf

[3] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/fraudsters-charged-in-$10-million-tech-support-scheme.pdf

[4] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/from-love-to-jail_-romance-scams-and-money-mules.pdf

[5] https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2017.303821

[6] https://www.napsa-now.org/get-informed/exploitation-resources/

What is Undue Influence?

Posted on by Alex Kincaid

Undue Influence is when someone pressures another in such a way that the person being influenced is not acting by their own free will; they are being coerced into taking a certain action.  Undue influence often arises when a friend family member falls ill.  For example, mom has been diagnosed with cancer and her boyfriend influences her to change her estate plan so that all mom’s assets go to him instead of to her kids.  The plan is oftentimes carried out in secret and others don’t know about what has been done until after the one being influenced passes away.

Undue influence is an argument that can be brought up in court to undo what the bad actor has done. Continuing the above example, mom’s children can file a petition to have the boyfriend’s actions undone if the court finds that the boyfriend was guilty of undue influence on mom.  A will can be thrown out, property transfers can be undone, and the bad actor’s name can be taken off accounts.  In order to win a case for undue influence, one must prove not just that the decision maker was persuaded by another to take a certain action, but that the person was coerced.  Meaning, either the influenced person didn’t have the capacity to make the decision, or they were tricked into doing so.

When analyzing the case, the court will look at all kinds of evidence, including:

  • Was the action in line with, or opposed to, recent decisions before the person fell ill?
  • Is the new act in line with previous decisions regarding that property?
  • Did the bad actor have authority or control over the person making the decision?
  • Was the bad actor physically involved in carrying out the decision? For example, did the bad actor drive the person to the appointment, arrange for the decision to be carried out, or physically help guide the person’s signature?
  • Was the act kept a secret?
  • Did the bad actor keep the decision maker from contact from family and friends?
  • Was the decision maker in a vulnerable position?
  • Had a physician made a determination of capacity?

In many cases, undue influence arises when the decision maker lacks capacity.  Capacity means that the individual knows what is happening and understands the consequences of their decision.  When someone falls ill or has a disease like dementia, they are in a vulnerable spot and can be taken advantage of because they become unaware of the actions that are being taken or the full effect of what they mean.

If an individual lacks capacity, then hopefully they had executed a power of attorney while they were healthy and now their agent can act on their behalf.  An agent has a duty to act in the incapacitated individual’s best interests.  If proper planning was not done, then a guardianship or conservatorship may be needed.  This is where a court process is initiated so that a judge can appoint someone to act on the incapacitated person’s behalf.

There are always two sides to every coin.  In some situations, the decision maker intends to be favorable to one person over another.  For example, one child is a caretaker to the parent and the parent’s will is more favorable to that child.  If the child called the lawyer to set the appointment and drove the parent to that appointment, that could look like undue influence when in fact, it wasn’t.  The parent could have had the intent that the caretaker child receives more inheritance.  A situation like this might lead to litigation if the parent didn’t plan in advance, while they were healthy and obviously had capacity.  Some elder law attorneys might also suggest that the client talk to the other children and explain what the will says and why one child will receive more.  Sometimes it isn’t the best surprise after the parent has died to learn that a sibling will receive more inheritance.

Many people need to look out for undue influence and capacity issues, including attorneys, financial advisors, bankers, notaries, and medical personnel.  Things to look out for:

  • Does the decision maker appear coherent and aware of what is going on?
  • Do you see any signs of physical abuse, such as bruises or scrapes?
  • Do you see any signs of emotional abuse, such as the bad actor putting the decision maker down or calling them names?
  • Do the decision maker’s actions seem out of the ordinary for them?
  • Are there ever any other friends or family members with them, or only just the two of them?
  • Does the bad actor let the decision maker speak, or does the bad actor control the conversation?
  • Has the bad actor refused to let you speak to the decision maker alone?

Undue influence can cause an individual to take actions that they normally wouldn’t.  These actions can have adverse consequences on friends and family.  But most importantly, the individual’s intent is not carried out.  Instead, the bad actor’s intent is carried out.  It is important that each individual gets to decide what happens with themselves and their belongings during their life and at death.  It is important to have legal documents in place to best protect yourself from being unduly influenced in the event that your health deteriorates.

 

 

 

Thirteen Estate Planning Terms You Need to Know

Posted on by Alex Kincaid

Estate planning—it is an incredibly important tool, not just for the uber wealthy or those thinking about retirement. On the contrary, estate planning is something every adult should do. Estate planning can help you accomplish any number of goals, including appointing guardians for minor children, choosing healthcare agents to make decisions for you should you become ill, minimizing taxes so you can pass more wealth onto your family members, and stating how and to whom you would like to pass your estate on to when you pass away.
While it should be at the top of everyone’s to-do list, it can be an overwhelming topic to dive into. To help you get situated, below are some important terms you should know as you think about your own estate plan.
Assets
Generally, anything a person owns, including a home and other real estate, bank accounts, life insurance, investments, furniture, jewelry, art, clothing, and collectibles.
Beneficiary
A person or entity (such as a charity) that receives a beneficial interest in something, such as an estate, trust, account, or insurance policy.
Distribution
A payment in cash or asset(s) to the beneficiary, individual, or entity who is entitled to receive it.
Estate
All assets and debts left by an individual at death.
Fiduciary
A person with a legal obligation (duty) to act primarily for another person’s benefit, e.g., a trustee or agent under a power of attorney. “Fiduciary” implies great confidence and trust, and a high degree of good faith.
Funding
The process of transferring (re-titling) assets to a living trust. A living trust will only avoid probate at the trustmaker’s death if it is fully funded, meaning it contains all of the decedent’s assets.
Incapacitated/Incompetent
Unable to manage one’s own affairs, either temporarily or permanently; often involves a lack of mental capacity.
Inheritance
The assets received from someone who has died.
Living probate
The court-supervised process of managing the assets of an incapacitated person. Conservatorship is another term used for this process.
Marital deduction
A deduction on the federal estate tax return, it lets the first spouse to die leave an unlimited amount of assets to the surviving spouse free of estate taxes. However, if no other tax planning is used and the surviving spouse’s estate is more than the amount of the federal estate tax exemption in effect at the time of the surviving spouse’s death, estate taxes will be due at that time.
Settle an estate
The process of winding down the final affairs (valuation of assets, payment of debts and taxes, distribution of assets to beneficiaries) after someone dies.
Trust
A fiduciary relationship in which one party, known as the trustmaker or settlor, gives another party, known as the trustee, the right to hold property or assets for the benefit of another party, the beneficiary. The trust should be memorialized by a written trust agreement, outlining how the trust assets will be distributed to the beneficiary.
Will
A written document with instructions for disposing of assets after death. A will can only be enforced through a probate court. A will can also contain the nomination of guardian for minor children.

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If you have any additional questions about estate planning, or would like to consult an estate planning professional, please contact our offices. We can make sure you have a comprehensive plan that is tailored to your unique needs and goals