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Preventing Financial Elder Abuse by Families - LA
County Legal Advice
Preventing
Elder Financial abuse in Los Angeles is about a few things: 1)
Preparation; 2) A little paranoia, mixed with restricting one's own
rights to amend, withdraw, or revoke a trust, and making transfers of
assets, and changes under court supervision, or under a professional's
exclusive supervision; and 3) taking quick action, if it actually happens.
PREVENTATIVE ESTATE PLANNING PROTECTS AGAINST ELDER FINANCIAL ABUSE
Most
of financial elder abuse happens in families, where one child has
a sense of entitlement, or by a caregiver, or a recent
spouse. Sometimes, financial elder abuse
happens at the hand of a caregiver. Sometimes, the
caregivers go very far, and become spouses to the elderly, and run up
large sums of credit card debt. A taking for wrongful use is
elder abuse in California. So, spending sprees on the elder's
credit card may
constitute the “wrongful taking” element of financial elder abuse
purposes. Welf. and Inst. Code §15610.30(c). Undue influence in
changing someone's estate plan is also deemed elder financial abuse now.
A little advance guidance can protect you from abuse by a family
member, greedy adult child, and caregivers. If you know you
are volnurable, see an attorney now!
When elders prepare to prevent elder financial abuse, they often look
to instruments that are either irrevocable, or that become irrevocable
with a special trigger. A special trigger may be an outside
professional visiting to determine, if it is time to make the trust
irrevocable.
But, sometimes, you cannnot restrict particular assets. IRA
accounts are particularly volunrable to financial elder abuse.
While a trust may protect other assets, IRA accounts are not trust
assets and making a trust revocable or irrevocable does not affect the
ira. Financial institutions have recently become aware of
such volunrability, and allow for the costumer to set restrictions on
ira accounts, internally, so that the ira cannot be changed when there
are certain conditions. Also, they have become aware of
attempts to draw large amounts of money from IRA accounts.
Beneficiary designations can be protected, when the consumer makes the
beneficiary designation irrevocable. Those take lots of extra
effort to implement, but certainly can be used to protect the elder's
money.
Restricting the exclusive method of amendment or revocation of the
trust, as well
as withdrawal of assets from the trust can be helpful in protecting
senior citizens. This requires special language in the
trust to limit
the right to amend, revoke or withdraw to an exclusive method, tied to
the court, or
another person, who is not the settlor. Probate Code §15401(a)(2);
§15402. Gardenhire v. Superior Court (2005)
127 Cal.App.4th 882, 886.
Qualified Personal Residence Trusts, and other irrevocable trust can
also protect the elder's future finances. These are
complicated trusts and you should obtain advice about their
consequences.
Because many times, caregivers attempt to marry the elder to overcome
the presumption of undue influence, one could specifically omit
transfers to a caregiver who becomes a spouse, and protect the trust
from the pretermitted spouse rule be effectively inserting a provision
that eliminates a caregiver who becomes a spouse later.
Probate Code §21611(a) provides that a new spouse shall not take under
the omitted spouse rule if the decedent intentionally failed to provide
for the spouse as expressed in the testamentary instrument.
There is a cost in elder protection planning, which is a loss of all
control. Giving up some control over the assets can help the
elderly hold on to their money, in situations when family or caregivers
act as predators. Talk to us about updates to elder abuse issues in 2020.
Mina Sirkin is a probate attorney
in Los Angeles. As an attorney who handles financial elder abuse
asset protection planning in Los Angeles, Ms.
Sirkin frequently speaks to groups regarding, regarding how to avoid greedy
family members and caregivers in Los Angeles County,
California. We serve all of Los Angeles County, Woodland Hills, Glendale, Pasadena, and West Los Angeles areas. To
reach us, call 818.340.4479, or
email: Info@sirkinLaw.com.
Los Angeles Probate Attorney
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