Sunday, October 17, 2010

Elder Financial Abuse in Oregon and the Obligation to Say No

Hitting up one's relatives for money is a time honored survival skill in every culture. Most people give up the practice when they reach middle age, but all of us have certain family members who simply can't wean themselves from the parental checking account. In the past we just felt sorry for these family members and let them go about their business. In today's world, with severe legal penalties for elder financial abuse, the ancient practice of finagling money out of elderly relatives can put a person on the wrong end of a very ugly lawsuit.

Here is how it works.

Elder financial abuse means wrongfully taking money or property from a person who is disabled or over sixty-five years old. That covers a lot of people. We can't  even retire at sixty-five any more, but we are nevertheless protected by Oregon's elder financial abuse law.

To be elder financial abuse the taking must be “wrongful." So what makes it wrongful? Stealing is wrongful. Embezzlement, extortion, and armed robbery are wrongful. Withholding money that belongs to the elder is wrongful. But those kinds of wrongful taking are not so common, and when they occur we normally call the police. Where the lawyers come swooping in is when money is taken from an elder using what the law calls “undue influence.”

“Undue influence” is a  complicated concept that has been imported into the law of elder financial abuse from the world of will contests. In Oregon, a will can be set aside if it was the result of undue influence. Since the passage of Oregon's elder financial abuse law, courts have decided that undue influence is also a good concept for deciding whether taking money from and elder was wrongful.  Those court decisions have broadened the protection of elders, made it dangerous to accept gifts from elderly relatives, and given new legal weapons to children dissatisfied with their parent's estate plan.

You take money by use of “undue influence” if you have a “confidential relationship” with an elder and thereafter use that relationship to get money transferred to yourself. A confidential relationship is a slippery legal concept. You might have a confidential relationship because the elder wants you to be on his or her bank account, wants you to be an agent on a power or attorney, or simply takes your advice on financial matters. If you have a confidential relationship with an elder and the elder wants to give you money or property (without having received independent and professional legal or financial advice) you may have a legal obligation to say no. If you fail to say no, you can get sued for three times the amount you received and required to pay the attorney fees incurred in suing you. If you are close to an elder relative and have some influence over his or her financial decisions, taking gifts of money from that person can be risky.

How do you protect yourself? Easy, don't accept gifts from elderly relatives or other disabled people unless the gift is wrapped in Christmas wrap and fits beneath a tree. If the gift doesn't fit that description send the elder to an Oregon elder law lawyer who has never been your lawyer. Then let the lawyer do the work. If you elderly mother thinks you should be on the deed to her house, or really wants you to have a new Mercedes, send her to a lawyer. Failure to do so could end up with you being sued.

You think, “But why would a loving parent who gave a lot of money to their kid, then sue to get it back?” The answer is that the parent doesn't sue. Somebody does it in his or her place. To see how that happens and why lawyers love to do it, check out my next post.

5 comments:

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  2. My elderly mother health was failing her and she ended up do a reverse mortage on her home. Mom had alzthmier (excuse the spelling) My sister who was staying with mom ended up taking all moms money and cashing in cd's and using moms railroad retirement, and other pensions. this is a mess.

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