While most elder caregivers provide services for aging individuals in a caring and professional manner, there are times when a caregiver leverages the unique relationship to take advantage of an elder. Caregiver actions sometimes rise to the level of elder abuse (physical or mental abuse or neglect) or financial exploitation. In such cases, the caregiver may be criminally liable for the abuse or exploitation.
Frequently, however, caregiver pressure is more subtle and amounts to influencing decisions of the elder in ways that benefit the caregiver. Typically, a caregiver who takes advantage of an elder does so to obtain financial benefit. The monetary benefit may be in the form of direct payments to the caregiver or to a third party (such as paying a debt of the caregiver). The benefit also may be accomplished by taking possessions of value from the aging individual. In the extreme, a caregiver can exert enough influence that the elder actually creates or changes legal documents (like a will, trust, or power of attorney) to benefit the caregiver.
The caregiver may be a complete stranger, but sometimes it is another family member. Situations involving a member of the family are more complex, but in both cases, there are solutions.
If you face a situation where a caregiver may be taking advantage of your aging parent, one of the first concerns to evaluate is whether your parent has legal mental capacity. If there are signs that mental competence may be an issue, a complete medical evaluation is essential.
If the elder no longer has the mental ability to make decisions about personal care and finances, a petition for guardianship and a petition for conservatorship in probate court might be the appropriate way to proceed. If your parent does not have durable powers of attorney in place that designate individuals to act on the elder’s behalf in the event of incapacity, the probate court will appoint a guardian and a conservator to care for your loved one and manage their finances. Appointment of a guardian and conservator may resolve the issues relating to caregiver influence over your parent.
If your parent still has mental capacity, one important step you can take is encouraging your parent to meet with an experienced estate planning and elder law attorney. If your parent consults with a knowledgeable lawyer, putting a sound estate plan in place may help address issues involving a caregiver. A thorough estate plan is one of the most effective ways to prevent strangers and family members from taking advantage of an elder loved one.
If you are unable to convince your parent to meet with an attorney, you should talk with a knowledgeable attorney about your parent’s circumstances, including concerns about the caregiver. Based on the situation, your lawyer will be able to suggest options for proceeding and resolving the issues.
In some situations, a caregiver may convince an elder to execute or revise legal documents that provide immediate or long-term benefits to the caregiver. The documents may include powers of attorney, a will and other estate documents, and even bank accounts and other financial accounts.
The legal principle that applies in these situations is undue influence. The term refers to one person unduly pressuring or coercing another individual who is making an important decision. Undue influence may occur in a wide range of different circumstances. In the context of an elder and a caregiver, the undue influence often occurs in connection with the creation or revision of legal documents.
When undue influence occurs, it may be the basis for invalidating legal documents, either during a person’s lifetime or following death. While undue influence claims arise most often in contests over wills and trusts, an undue influence claim also can be the basis for challenging the validity of other documents and actions with legal implications.
The legal standard for undue influence is fairly high. The fact that influence occurred does not necessarily mean it qualifies as undue influence. The only way to determine whether your aging parent may have been subjected to undue influence is to discuss the situation with an experienced probate litigation attorney.
If you think your elder parent is being manipulated, abused, or exploited by a caregiver — whether the caregiver is a family member or a stranger — you do have options to pursue to address the situation. Convincing your parent to consult with an experienced estate planning and elder law attorney is one way to get started. If you are not able to accomplish that task, you should talk with a lawyer who understands probate litigation, in addition to estate planning and elder law.
Your options for proceeding will depend entirely on the specific facts surrounding your parent’s situation. But regardless of what the situation may be, there are always alternatives available. Your attorney can help you find the appropriate solution for your parent.
BRMM attorneys assist clients with the full range of legal needs relating to probate litigation, elder law, and estate planning. We’ve been providing legal services to clients for more than 40 years. Our compassion, credentials, and commitment set us apart.Call us at (248) 494-4577 to talk about matters relating to your aging parent or other legal issues. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan.