can a trust attorney help elderly person fight what a lawyer son is doing with her money

How can an elder law attorney help me pay for caregiving?

Elder law attorneys will consider how you can meet the rising costs of caregiving. Consulting with a financial planner who is versed in elder law can also help you plan ahead to pay for the cost of care. How early you start planning may impact your options and how your future needs may be funded.

Can a lawyer steal power of attorney from an elderly person?

Lawyers can use their legal knowledge to abuse a senior’s power of attorney and avoid detection. In one case, a Pennsylvania attorney stole over $500,000 from the estate of an elderly client who suffered from dementia. He stole the money over a period of three years before being caught.

Can a trust attorney defend the trustee against the trust beneficiaries?

But that Trust Attorney should not be defending the Trustee against the attacks of the Trust Beneficiaries. Because of the conflict of interest that arises there.

Why is it important to know about elder law trusts?

Having a better understanding of these different elder law trusts, will lead to a more successful and more lucrative practice and help you to retain elder law clients and attract plenty of new business.

What are some examples of undue influence?

What are signs of undue influence?Isolation from friends, family, or a social support system;Dependency upon the abuser;Abuser's use of the victim's financial assets;Psychological abuse, threats and intimidation;Physical violence, including threats of physical violence;More items...

How do you deal with family fighting over inheritance?

How To Stop Family Fights Over InheritanceWrite Up a Legal Will. ... Consider a Trust. ... Make Beneficiary Designations. ... Choose a Trustworthy Executor. ... Divide Assets Fairly. ... Be Specific in Your Will. ... Make a Plan To Talk. ... Utilize Existing Resources.More items...•

What a trustee Cannot do?

Refusing to Follow the trust The trustee cannot refuse to carry out the wishes and intent of the testator and cannot act in bad faith, refuse to represent the best interests of the beneficiaries at all times during the probate administration of the trust, and refuse to wind up close a trust.

How do you defend undue influence?

You may have to defend the estate plan if you are the person accused of undue influence or if you are the estate's personal representative. An effective defense requires that you gather as much evidence as possible that shows the deceased acted independently when creating the estate plan.

Can siblings force the sale of inherited property?

In California, a co-owner can force the sale of inherited property through a lawsuit called a “partition action.” This legal proceeding allows the sibling that does not want to keep their share of the home to have the court order it to be sold and the shares of the proceeds divided among all siblings.

Do siblings fight over inheritance?

According to recent research from Ameriprise, while only 15% of grown siblings report conflicts over money, nearly 70% of those conflicts are related to their parents. The top three topics of discontent are: How an inheritance is divided. Whether one sibling supports his or her parents more than the other siblings.

How much power does a trustee have over a trust?

The trustee usually has the power to retain trust property, reinvest trust property or, with or without court authorization, sell, convey, exchange, partition, and divide trust property. Typically the trustee will have the power to manage, control, improve, and maintain all real and personal trust property.

Can a trustee do whatever they want?

The trustee cannot do whatever they want. They must follow the trust document, and follow the California Probate Code. More than that, Trustees don't get the benefits of the Trust. The Trust assets will pass to the Trust beneficiaries eventually.

Who owns the property in a trust?

In simple trusts, the trustee is legal owner and simply holds as little more than a nominee for the beneficial owner. The beneficial owner may be in occupation of the property and has its full benefit.

What are the two key elements of undue influence?

What are the key elements of undue influence? (1) Must be a relationship of trust, confidence, or authority between the parties to the contract (2) The stronger party must wrongfully, dominate the party or use unfair persuasion in order to secure an agreement.

How do you prove a case of undue influence?

Under California financial elder abuse law, you must prove four elements to establish undue influence: (1) vulnerability of the victim, (2) apparent authority of the wrongdoer, (3) actions and tactics of the wrongdoer, and (4) an inequitable result.

What is the test for undue influence?

The precise test for undue influence again varies by state, but typically the contestant must establish that the undue influencer destroyed the free will of the person executing the will so that the desire of the undue influencer took over for the desires of the victim.

Why are elder law attorneys considered specialists?

In many ways, elder law attorneys are "specialists" because of their focus on the needs of older adults, which are often different and more specialized than the needs of younger adults.

What is an elder law attorney?

Elder law attorneys are advocates for the elderly and their loved ones. Most elder law attorneys handle a wide range of legal matters affecting an older or disabled person, including issues related to health care, long term care planning, guardianship, retirement, Social Security, Medicare/Medicaid, and other important matters.

What Questions Should I Ask an Elder Law Attorney?

Also, before selecting an elder law attorney, you should feel comfortable that he or she will represent you or your loved one in a sensitive and understanding manner.

What is the importance of wills and estate planning?

Discuss the importance of wills and estate planning, including planning for a minor or adult with special needs, probate proceedings, and other matters. Create a durable power of attorney. Provide help with health care and planning, including long term care options, patient rights, Medicare, and health care power of attorney.

How does a testamentary trust protect assets?

A testamentary trust can protect an elderly person’s assets when a spouse or other family member dies leaving a will that creates a testamentary trust. The assets left are transferred into the testamentary trust for the care of the elderly survivor. The testamentary trust protects the elderly person’s assets by authorizing a trustee to make all financial decisions, including those that take advantage of tax benefits and generate additional income through the sale or investment of assets. Since the older person has no control, the assets are in less danger from mistakes or fraud and, with expert financial management, more likely to remain intact throughout the life of the elderly person.

Why are elderly people prime targets for financial abuse?

Because of this, they often need increasing levels of assistance to handle financial matters and protect their assets. Some elderly people find it difficult to properly manage their assets, ...

What is an appointed trustee?

An appointed trustee affords a higher level or asset protection as the grantor ages. The trust makes it more difficult for family to take control of or misappropriate the older person’s assets, since only a court of law can revoke a trust over the grantor’s objections or find the elderly person incompetent to manage his assets. 00:00.

What is a revocable trust?

The revocable living trust, which the grantor can revise or revoke at any time without permission of the beneficiary, lets the grantor retain control of her assets. The grantor may serve as trustee or appoint a trustee. The grantor who serves as trustee and beneficiary of the trust names and authorizes a successor trustee to dispose of the trust’s assets if she dies or is incapacitated. The revocable living trust provides another layer of asset protection since it becomes irrevocable when the grantor dies or becomes incapacitated. An appointed trustee affords a higher level or asset protection as the grantor ages. The trust makes it more difficult for family to take control of or misappropriate the older person’s assets, since only a court of law can revoke a trust over the grantor’s objections or find the elderly person incompetent to manage his assets.

What is a grantor trust?

A grantor creates a trust, places assets in the trust, appoints a trustee to manage the trust and names a beneficiary to receive the assets of the trust. A testamentary trust is created at the direction of a will after the asset owner’s death. A grantor creates a living trust while he is still alive.

Why do people create trusts?

Trusts. People often create trusts to avoid probate, which requires payment of taxes when assets are inherited through a will. People also create trusts to manage assets for people who cannot handle their finances because of age, illness or disability. A grantor creates a trust, places assets in the trust, appoints a trustee to manage ...

Can an irrevocable trust be left intact?

The trust may be left intact after the grantor’s death to care for a surviving spouse.

What are the different types of elder law trusts?

We’ll cover the Medicaid Asset Protection Trust, Medicaid Family Protection Trust, Veterans Asset Protection Trust, Parental Protection Trust, Grantor and Non-Grantor Trusts, and the Qualified Disability Trust. Having a better understanding of these different elder law trusts, will lead to a more successful and more lucrative practice and help you to retain elder law clients and attract plenty of new business.

What happens to a trust when the grantor dies?

When the grantor dies, the trust is divided into shares for named individuals or for the grantor's descendants. In the case of the latter, division of the distribution is based on the descendant distribution option that was selected when the trust was first established.

What is Medicaid Family Protection Trust?

The Medicaid Family Protection Trust. The Medicaid Family Protection Trust is another of the possible strategies that comes up in elder law Medicaid planning. It’s typically suited to clients interested in protecting their own assets and those of their children or beneficiaries from falling into unintended hands.

How long does a trust need to be in place to be eligible for medicaid?

This trust can impact your client’s Medicaid eligibility so it’s critical to be aware of the potential implications of Medicaid’s five-year lookback period. Because Medicaid can look back over a period of up to five years when determining whether or not a person qualifies for coverage, your client must create the trust, transfer the assets to it (fund the trust), and not have a need for Medicaid for at least five years. After the five-year mark of the funding of the trust, the client will be fully protected and will be eligible for Medicaid.

What are the drawbacks of an irrevocable trust?

The most significant is that your client will lose significant control over any assets because they are considered outright gifts. Therefore, your client — the grantor — can no longer make important decisions over their use as he or she would be able to if the assets were placed in an irrevocable trust, for example. The loss of this control is precisely what enables the asset to be shielded from Medicaid recovery. While the grantor may be the income beneficiary of the trust, he or she is relinquishing the right to remove any of the trust property and place it directly back into his or her name because of the stipulation that the property must remain in the trust.

Why do you need a trust for a lifetime beneficiary?

It also includes trusts for lifetime beneficiaries to ensure that asset protection extends beyond the client — or grantor’s — death.

Why is Medicaid Asset Protection Trust important?

First and foremost, the Medicaid Asset Protection Trust offers your clients an alternative to more expensive long-term care insurance because it allows them to qualify for Medicaid while still protecting their assets. This is beneficial for many reasons, including sheltering clients from the extremely high cost of long-term care, which can also be difficult to qualify for depending on age and health status at the time of application. It also doesn’t force your client into Medicaid.

What can an elder law attorney do?

An elder law attorney can help determine whether you are eligible for either program, discuss strategies for spending, advise whether it is in your best interest to apply, and help with the application process. Medicaid may be able to serve as a partial funding mechanism even if you have significant resources available.

What is elder law?

Elder law incorporates elements of financial and estate planning, but it also considers a broader perspective such as medical concerns and other issues facing older adults. Estate planning deals primarily with financial planning for persons of any age and protecting assets when an individual passes away.

What happens if you don't have a POA?

If you become incapacitated and you do not have a POA, a conservatorship for financial and guardianship for medical (in some states referred to as “conservatorship over the person”) may be required. These require a court proceeding to appoint a person over you. An elder law attorney helps determine whether guardianship or conservatorship are appropriate. Navigating the process of obtaining guardianship or conservatorship can be complicated, and elder law professionals will provide the expertise needed to identify the best person to assume these responsibilities.

Why is a power of attorney considered a legal issue?

Because a power of attorney provides less authority than guardianship or conservatorship, there can be some legal dispute over actions taken by an agent. POA abuse is also an issue since it could involve coercion, in which an older adult is made to give POA against his or her will.

When does a POA become effective?

The POA can be effective as soon as you sign it or be a “springing” POA in which the rights of a durable POA do not lock into effect until certain requirements are met, such as specific medical diagnoses.

What to consider when choosing a representative?

Some common aspects to consider in choosing representatives are where they live, their relationship to one another, their professions, and how busy they are. Sometimes these conversations seem invasive, but they are vital to determine who is acting in your best interest, who will be supportive in the future, and who you can trust to assist in executing your affairs.

What is long term care?

Long-term care facilities also provide care and assistance with the activities of daily living, but the staff is present during the night to respond to issues more quickly. To receive care in a nursing facility, you typically would have a medical need such as wound care or intravenous injections.

Why are senior citizens at risk of power of attorney abuse?

Seniors are especially at risk of power of attorney abuse because: They may have mental or physical impairments that prevent them from managing their own well-being. They may give their power of attorney to someone they can’t trust. There is generally poor regulation/accountability for power of attorney.

Who Can Commit Power of Attorney Elder Abuse?

Anyone with a senior’s power of attorney can abuse it, including lawyers, friends, family members, or even strangers. Find some examples below.

What is nursing home abuse justice?

Nursing Home Abuse Justice was founded to shine a light on nursing home and elder abuse. Every day, thousands of people in nursing homes and assisted living facilities are abused. Our team helps educate seniors and their loved ones on the common causes, signs and preventions of nursing home abuse. We report on real-world studies and current events from respected news outlets to expose this national problem.

How long was a Pennsylvania attorney in jail?

He stole the money over a period of three years before being caught. The lawyer was disbarred and sentenced to 33 months in federal prison in 2018.

What to do if a senior cannot revoke a power of attorney?

If power of attorney elder abuse is suspected, call the local authorities immediately .

Why do nursing homes neglect?

Nursing home neglect may have also taken place in this situation since staff members failed to keep the resident from being exploited.

What does it mean when an elder is isolated?

The elder is isolated friends/family by the person with power of attorney. If any of these signs are noticed, family members should take swift action to keep a senior safe and to protect their financial assets.

What happens if the trustee's brother and sister don't agree with the trust?

In other words, they’re saying the Trustee has not followed the Trust terms, the Trustee has damaged the Trust assets to some extent.

Does a trust attorney represent a trustee?

Probably , the Trustee already has an attorney that’s been hired to represent them in their capacity as Trustee. And that is good. Because that attorney will help the Trustee file all required tax returns, to marshal all the assets, to pay off the liabilities, to do a proper accounting, to get distribution ready, to get waivers if waivers are needed. Those are the types of things that a Trust Attorney will do for that Trustee.

Can a trust attorney defend against a trustee?

But that Trust Attorney should not be defending the Trustee against the attacks of the Trust Beneficiaries. Because of the conflict of interest that arises there. The Trustee must treat all the Beneficiaries equally, and more than likely, the Trustee is a Beneficiary themselves, and so, they’ll need to get an attorney that represents them in their ...

What happens if you don't have legal guardianship?

Most importantly, know that even if you don't have legal guardianship right now, you have options for stopping the family member or caregiver who is not acting in the best interest of the Loved One.

Who has the power to revoke a power of attorney?

A duly appointed Guardian, has the authority to revoke a power of attorney previously executed by the Loved One. In order to revoke a power of attorney that has been registered or recorded with the register of deeds in any county in North Carolina, the Loved One (if competent), or a Guardian, must take the following steps:

What to do if your loved one is incompetent?

If the Loved One is incompetent, consider pursuing a guardianship over the Loved One to protect the Loved One.

What happens if you don't find out the wrongdoing until after the deceased person dies?

What if you do not discover the wrongdoing until after the Loved One has died? In many cases, particularly if you are a beneficiary or an heir of the deceased Loved One, you may have standing to file a lawsuit against the Bad Actor for undue influence of the deceased Loved One while the Loved One was alive. Undue influence is generally proved by a number of facts, each one of which standing alone might be of little weight, but when taken together may indicate undue influence. North Carolina Courts typically consider the following factors when evaluating whether undue influence occurred:

Can a bad actor sue for breach of fiduciary duty?

Filing a Lawsuit and reporting the Crime. In addition to revoking the power of attorney, the Loved One ( if competent), or a Guardian, can file a lawsuit against the Bad Actor for breach of fiduciary duty for violating or exceeding the authority given under the power of attorney .