Tuesday, October 22, 2013

Family alignment in financial elder abuse cases in Oregon

I have written before that the people who file financial elder abuse cases under Oregon's elder abuse statutes are seldom abused elders. The only cases I ever see in my office are cases filed by fiduciaries: conservators if the elder is alive or executors if the elder has died. In the real world, the cases are filed by one family member against another. Most of the cases involve siblings: Cain and Abel battling over Adam's money.

Financial elder abuse cases filed by conservators and executors tend be attempts by one sibling against another to undo gifts made by the elder. For example, Adam gives Abel the house, and when it comes to reading the will it turns out that the house was the only thing of value that Adam owned. Cain is out of luck. He goes to his Oregon elder law lawyer and sues Abel for financial elder abuse on the grounds that Abel used undue influence to get Adam to sign the deed.

If old Adam has dementia instead of being dead, Cain either gets himself appointed conservator or gets his Oregon elder law lawyer to hire a professional fiduciary who will do the deed for him. Cain then files the elder abuse case while Adam is still alive. The goal is still the same--to bring the house that Adam gave away back into the estate so Cain can inherit it according to the terms of the will.

I have a case in which it is a daughter against mother over grandma's property, but the bulk of the cases I see are brothers and sisters fighting with each other. Seeing siblings fighting like this can be discouraging, but I have to remind myself that humans have a rich history of such fights. We have Cain and Abel of course, and in the old days when the becoming king of a nation was at stake, siblings murdered each other to protect an inheritance. Compared to that, going to court is actually quite civilized.

You may think that you are safe from brotherly litigation because you get along well with your siblings or because your parents have no money to fight over. Beware--these disputes suck in everyone close to the battlers. I know of a case locally where the court entered a judgment against the wife of one of two battling brothers because her husband spent his ill gotten goods paying the mortgage on the home where he and his wife lived. Being anywhere close to these disputes is dangerous.

I think the Oregon legislature had the best of motives when it passed the Oregon financial elder abuse statutes. It wanted to protect elders and punish those who would take advantage of them. I doubt they had in mind a full-employment law for probate litigators, but it seems to me that is what has happened. For people, who want to challenge the estate plan of a parent, it adds an additional legal weapon that can be put to use before the elder is even dead. For people who have received large gifts from elders, it makes for sleepless nights. And for lawyers like me who make a good living off of family discord, it means a regular income.

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