The Wiewel Law Firm

Financial Elder Abuse Is Growing

“A suspicious email, a strange phone call from an unknown number, an overzealous financial adviser, a close family member: what’s the connection between all these people and things? It's financial elder abuse.”

Financial elder abuse is defined as the “fraudulent or otherwise illegal, unauthorized or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit or gain, that results in depriving an older individual of rightful access to, or use of, benefits, resources, belongings or assets.” That’s from The Older Americans Act of 2006.

Consumers Digest estimates that there are at least five million cases of financial elder abuse in America every year. An article titled “Population ages, financial abuse rises” from the Reading Eagle wisely notes that seniors are not just being targeted, they are the bull’s eye.

One of the reasons is because many older Americans live in isolation. A person who spends most of their time alone will welcome any simple human interaction, including talking to anyone who calls on the phone, unknown neighbors introducing themselves, marketing mail or interactions on the internet. This desire for company makes seniors more likely to ignore warning signs and to hand over money and control of their assets.

Do you wonder what kind of person would hand over their power of attorney to a stranger? The plain truth is that most financial elder abuse is committed by people who are closest to the senior. Family members are far more likely to prey on seniors than a stranger.

One financial advisor notes an instance where a scammer forged a check for $25,000 in a senior’s name, then kept doing it until she had stolen up to $75,000. She did it repeatedly, because she knew that she could get away with it.

The key to prevention is planning. First, seniors should simplify their financial and legal matters. Surrounding yourself with trusted advisors and family members who serve as checks and balances for each other is a good idea. It’s sometimes hard to know who to trust sometimes, especially family members. An estate planning attorney should be part of your team, and everyone should work together.

If you become suspicious that financial fraud is happening to you or a loved one, you may want to reach out to the Adult Protective Services office in your community. They will be able to advocate on behalf of the senior.

Treat everything and everyone with a degree of suspicion. If someone knocks on the front door and says they can offer you a discount on tree removal or roof repair because they are in the neighborhood, don’t believe them. You should also have an estate plan in place that protects your assets, so they are less vulnerable to a scammer.

Reference: Reading Eagle (Feb. 9, 2020) “Population ages, financial abuse rises”

Retirement Accounts Targeted by Cybercriminals

“Unlike with stolen credit cards, a saver's losses to fraud in retirement investment accounts aren't limited by federal law, although mutual fund companies typically say they'll reimburse funds lost to fraudulent activity.”

She thought she had nearly $80,000 saved in her employer-sponsored retirement plan, but when Beth Bennett checked on her account, there was only about $8,000 in the account. She didn’t check the account very often, so she didn’t even know the theft had occurred.

Her experience, detailed in the article “Cybercrooks Targeting Retirement Accounts” from Insurance News.net, was the result of someone stealing her identity, changing her mailing address, redeeming money from her mutual funds and having checks mailed to new locations. A bank cashed the first two checks. When the theft was discovered, Bennet was able to stop payment on a third check. But that wasn’t the worst discovery.

Contacting the mutual fund company revealed that there was no sure guarantee that she would be reimbursed for the loss.

As cyberattacks on retirement funds rise, investors need to be on guard.

Hackers are going where the money is, and retirement accounts are rich targets. Fraud in retirement accounts is on the rise, according to a report from the National Association of Plan Advisors. Criminals are looking for any possible route, and they have found that email compromises, spear phishing and social profiling are profitable. Spear phishing is when criminals send emails that look like they are from a known and trusted sender, trying to get confidential information.

Some experts say that criminals are gaining entry by getting people’s passwords and account numbers, which can be purchased on the “dark web.” When getting access to one email account, they can figure out how to get into the bank account. All they have to do is go through the “Forgot Password” process and reset your password through an email and they have access.

Bennet was lucky. Her retirement fund company returned the money that was lost. But not everyone is so lucky. The biggest companies are more likely to do so, but there are no guarantees.

What can account holders do?

• Make sure any device used to connect to accounts is protected by a firewall and has current antivirus and antispyware software.
• Be very cautious about opening attachments or clicking on links in emails that ask for financial information.
• Use a longer password than a short one, and don’t use the same password on multiple accounts.
• Open and read any letters and statements that come from your retirement accounts on a timely basis to be sure that everything looks accurate. If you see any unauthorized activity, call the companies immediately.

Reference: Insurance News.net (Jan. 8, 2020) “Cybercrooks Targeting Retirement Accounts”

What Does the Movie “Knives Out” Teach Us About Estate Planning?

“One of the most dramatic scenes in the movie, is the gathering of the Thrombey Family at their father’s estate to hear the reading of the will.”

One of the recent surprise hit movies has been the murder mystery Knives Out, with a star-studded cast that includes Jamie Lee Curtis, Daniel Craig and Chris Evans.

Forbes’s recent article “What The Movie ‘Knives Out’ Gets Right (And Wrong) About Estate Planning,” says that the crux of the story is a topic most Americans wouldn’t find exciting–the world of estate planning, unless the estate planning involves the wealthy. Spoiler Alert: there are spoilers below!

In the movie, the patriarch of a wealthy family, Harlan Thrombey (Christopher Plummer) is found dead. Just before his death, he changed his estate plan. The movie takes viewers through some twists and turns to see who might be responsible for his death. However, there are also some key scenes that address estate planning concepts, such as contesting a will, undue influence and the slayer statute. These are issues moviegoers might want to know about for their own estate plans.

One of the most dramatic scenes in the movie is the gathering of the family at their father’s home for the reading of the will. In a library, the attorney sits behind the patriarch’s desk and reads the document. The importance of this scene is highlighted, when Daniel Craig’s character explains that the will reading is really a performance of “a tax return by a community theater.”

However, the filmmakers have taken some liberties because the “reading of the will” doesn’t actually happen in real life. It’s a dramatic and pivotal scene in the movie, but don’t expect it when someone dies. Although the reading of the will is also more fiction than fact, there are some things are very real in the estate planning world.

When things don’t go well for the Thrombey children in their father’s estate plan, the family immediately thinks about contesting the will. This has become increasingly common because of an increased willingness by people to challenge estate plans. This is due in part to us living longer.  Frequently estate plans aren’t updated to address changes in the family. In cases where the testator has dementia or is otherwise incapacitated, there is also a chance of undue influence. The usual result of a contested will is some type of settlement.

Again, a common claim in a will challenge is for undue influence. In the movie, when Marta the caretaker becomes the sole beneficiary, this concept is bandied about by the Thrombeys when talking about a will contest. Undue influence is a legal concept that can be used to invalidate a will, trust, or legal instrument. It occurs when a vulnerable individual is persuaded to change his or her estate plan, and the persuasion and influence rise to the level where the victim is unable to freely exercise his or her independent will.

In the film when undue influence fails, the Thrombey family turns to the concept of the “slayer statute.” This law stipulates that a person can’t inherit, if they intentionally killed the deceased. While this concept makes for good filmmaking, it’s an actual premise in estate law.

The movie Knives Out gets a lot right about estate planning correct, such as will contests, undue influence and slayer statutes. So, enjoy the picture!

Reference: Forbes (December 18, 2019) “What The Movie ‘Knives Out’ Gets Right (And Wrong) About Estate Planning”

Fighting Elder Abuse in Iowa

“Judy Morrison said trouble began days after her mom died in 2016. That’s when her father found more than $600,000 missing from her mother’s bank account.”

The missing money came from years of work on the family’s farm. It was supposed to be passed to her father. ,However the money had gone to her half-sister’s bank account. As reported by Iowa Public Radio’s article “Elder Abuse Remains A Legal Challenge in Iowa,” it took months to figure it all out.

Morrison accuses her sister of forging documents and lying to their mother—who spoke little English—to get the money. However, it took nearly three years before the sister was charged with first degree theft for taking the money without authorization. It was a long, complex paper trail with a detective who kept putting her off, telling her that he had homicides and human trafficking to deal with.

Morrison had to fight tooth and nail the whole way. That doesn’t surprise Chantelle Smith, an assistant attorney general in Des Moines, who has worked on elder abuse cases for almost twenty years. She sees cases like this all the time, she said. They are challenging and time intensive for law enforcement, especially in rural areas. If there are only two officers and two detectives, they may not have the time to investigate an elder abuse case.

The National Council on Aging reports that one in ten adults over age 60 has experienced some form of abuse, whether it is financial, physical, or emotional. However, less than 5 percent of these cases actually reaches litigation after a complaint is made, according to a University of Iowa report. Numbers from the Department of Human Services have risen to nearly 5,300 for adults over 60, compared to 860 just five years ago.

The state attorney general’s office just completed a three-year program funded by a grant from the U.S. Department of Justice to combat elder abuse. 600 law enforcement agents, doctors, victim services providers and other professionals were trained on how to identify and investigate elder abuse.

The grant was also used to create a community response team, which puts people from different professions together for regular meetings on how to address these issues. The grant was also used to pilot a “Later in Life” program in Dallas County that trains specialists to find and provide services to victims over age 50.

Polk County, the most highly populated in Iowa, is the only county with a unit dedicated to elder and dependent adult abuse.

The executive director of the Crisis Intervention and Advocacy Center in Adel, Iowa, said that in the past 17 months, nearly 400 people have been helped in 12 mostly rural counties. The center has three elder abuse specialists, who help victims in moving out of abuser’s homes, get them to appointments and help them file police reports, if they wish to do so. Few victims are willing to file a police report, but in nearly all cases, the abuser is a family member. They are fearful of retaliation, and of getting family members in trouble with the law.

The program is in limbo, since the federal grant ended in September and the agency is waiting for news about an extension.

Reference: Iowa Public Radio (November 19, 2019) “Elder Abuse Remains A Legal Challenge in Iowa”

Check Cashing Company Part of Elder Abuse Case

“At one point, Alvarado was withdrawing so much money from Silnitzer’s accounts, she needed a rolling suitcase to take it home, according to the lawsuit.”

Two women and two check-cashing companies have been accused of profiting from a scheme that had a 74-year-old man suffering with dementia as their target. The scam, reported in the article “Woman carried suitcases of cash out of check-cashing business, elder abuse lawsuit says” from the Fresno Bee, was attempting to drain millions of dollars from the man.

The lawsuit alleges that the check cashing companies should have known that the 74-year-old widower was a victim of financial elder abuse by the two women, who are accused of convincing David Silnitzer to write checks totaling hundreds of thousands of dollars.

Making matters worse, one of the women managed to get legal permission to oversee the elderly man’s assets, which were estimated at $6 million.

The Fresno County Public Guardian became the conservator of David Silnitzer’s estate this year, after receiving a report from the Fresno District Attorney’s Office about the possibility of elder financial abuse taking place. The county is going after the check-cashing companies for unfair business practices, financial elder abuse and negligence.

The DA’s Office is investigating the two women, Christina M. Alvarado and Brenda L. Denning, but no charges have been filed to date. However, a Fresno County Superior Court judge did issue a restraining order against Alvarado to try to protect Silnitzer from any further harm from her.

About a year after Silnitzer’s wife passed away, Silnitzer began to rely on Alvarado, who has an extensive criminal history. He trusted her as a caretaker, support person and even referred to her as a fiancé at one point. She moved in with him and started a spending spree, using money taken from his accounts, opening new accounts and cashing checks.

He may not have been aware of what was happening. He was given a “Mini-Mental State Exam” to test his mental skill and scored 5 out of 30, indicating severe dementia.

From Aug. 1 to Sep. 12, 2016, more than $83,000 was withdrawn from Silnitzer’s account at Bank of America. Many of the withdrawals were made at non-Bank of America ATMs, including many located in casinos. Bank of America officials raised red flags, and Alvarado moved to a different bank. She opened an account at Chase for more than $900,000. During the eleven days after the account was opened, she made a withdrawal of more than $800,000. Officials at Chase, Bank of America and a third bank closed the accounts, suspicious of the activity.

Alvarado, therefore, turned to the check cashing companies. More than $1.5 million was cashed at one company. The check cashing companies earned large fees and didn’t ask any questions.  Alvarado and Denning then had Silnitzer sign a durable power of attorney for financial management. The checks kept getting cashed.

Law enforcement officials who specialize in financial elder abuse say that seniors are very attractive targets to thieves and scammers. Those who live alone and are isolated from family are particularly vulnerable. Family members can be the first line of defense against thieves.

Reference: Fresno Bee (Oct. 9, 2019) “Woman carried suitcases of cash out of check-cashing business, elder abuse lawsuit says”

Melissa Donovan, JD of The Wiewel Law Firm is now a Certified Elder Law Attorney.

I am proud and honored to announce that Melissa Donovan, JD of The Wiewel Law Firm is now a Certified Elder Law Attorney.

Certification in elder law – one of the fastest growing fields in the legal profession – will provide a measure of assurance to the public that the attorney has an in-depth working knowledge of the legal issues that impact the elderly. At this time there are only 27 attorneys in the State of Texas who hold the distinction of being a Certified Elder Law Attorney, or CELA.

Please help me in congratulating Melissa on the well earned distinction! If you are looking for help with an Elder Law issue, Melissa is here to help!

Who Can You Really Trust for Your Financial Accounts?

“Particularly if you’re 65 or older, you may have recently been asked by your financial advisor, custodian or brokerage firm, if you would like to add a trusted contact person to your account.”

Dramatically increased instances of elder financial abuse are behind a new question asked of seniors by their advisors these days: do you want to name a trusted contact on your account?

The financial industry’s regulatory authority now requires that member firms make an effort to have clients name a trusted contact person. It is not required that they do so, says Hometown Life in the article “Use a trusted contact to protect seniors from financial abuse,” but the question must be asked.

The older you are, the more seriously you should consider taking this step.

Let’s start by defining what a trusted contact is, and equally important, what a trusted contact is not. A trusted contact is not someone who can access or make financial decisions on your behalf. That is a person who has been named a Power of Attorney or POA. A trusted contact is a person that your financial advisor, brokerage house, or the financial company that holds your accounts can contact, if they see signs that indicate that you are being financial exploited.

The trusted contact can also be a person who can confirm your mental or physical health status, a legal guardian, trustee, or your POA. Unlike the POA, the trusted contact person cannot see your account information or make trades for you.

Typically, people name a family member. However, research has sadly shown that family members are actually the ones most likely to be the abusers. Naming a trusted contact may call for you to think out of the box and consider someone who is not a family member. A trusted professional or a dear friend, preferably one who is younger than you, may be the best person for this task. You could also select two trusted contacts.

This is not a perfect solution to financial elder abuse. However, it is one more layer of protection. There is no 100% solution to a problem that affects seniors in every social and economic class. Nevertheless, naming a trusted contact is something that can be done to reduce the risk and is worthwhile doing.

Other safeguards include having an estate plan, including a will, power of attorney, health care power of attorney and trusts. Your estate planning attorney will be able to explain the many different types of trusts and how they can be used to ensure that you remain in control of your assets, while protecting you from financial abuse.

Reference: Hometown Life ( August 15, 2019) “Use a trusted contact to protect seniors from financial abuse”

Over-Medication of Nursing Home Residents

“In addition to the assault on the resident’s dignity and the administration of drugs without informed consent, the misuse of anti-psychotic drugs can kill a senior, particularly one who suffers from dementia.”

Nursing homes are supposed to administer prescribed medications to residents. Appropriate use of these substances can treat illness and improve the quality of life for the senior. The problem arises when nursing homes use drugs to control the behavior of residents and make them easier to “handle,” instead of providing good care. The over-medication of nursing home residents, also called “chemical restraints,” is an issue across the nation.

An Overview of the Misuse of Antipsychotic Drugs

Some nursing homes keep their residents in a “zombie” state, drugged up on powerful antipsychotic medications, even though the seniors do not suffer from psychotic illnesses. These drugs can make a person drowsy, compliant and less physically active. When in such a state, the resident requires and receives little personal care from the facility.

Long-term care centers started using these chemical restraints, when state and federal legislation outlawed the routine use of physical restraints on people who live in nursing homes. Before those laws, many long-term care facilities would tie residents to their beds at night, and into chairs during the day. Drugging nursing home residents for the purpose of staff convenience, as opposed to a legitimate medical reason, is illegal. Both Medicaid and Medicare prohibit this treatment, yet the behavior continues.

The Dangers of Chemical Restraints

In addition to the assault on the resident’s dignity and the administration of drugs without informed consent, the misuse of anti-psychotic drugs can kill a senior, particularly one who suffers from dementia. These medications interfere with the way a person thinks, reacts and feels.

Resources for Dealing with the Misuse of Drugs on Nursing Home Residents

The National Long-Term Care Ombudsman Resource Center (NORC) developed a toolkit for families and residents to use when dealing with the issue of chemical restraints. You can learn about the symptoms of misuse of antipsychotic drugs, what rights the residents have to be free from this improper drugging without consent and how to advocate for your loved one, if you suspect the nursing home is using chemical restraints.

Alternative to the Misuse of Psychotic Drugs

When a resident’s conduct presents issues for the staff or other residents, some nursing homes prescribe antipsychotic medications to chemically restrain the resident whose behavior is at issue. Things like wandering into other residents’ rooms, aggressiveness, anger and anxiety are some examples of the conduct that can lead to the use of chemical restraints.

The long-term care facility should try these alternatives instead of drugging the resident:

• Discover the cause of the behavior. Merely applying the label of “problem” does not address the situation adequately. Find out why the resident engages in the unwanted conduct.
• Develop a care plan tailored to the resident to deal with the behavior.
• Establish a protocol of good care for the patient that incorporates things like increased time outdoors, more physical exercise, monitoring and treating both acute and chronic pain, planning activities for the individual resident, having enough staff, and training the staff on how to provide good patient care without using physical or chemical restraints.

If you suspect your loved one’s nursing home is using chemical restraints, contact your state’s ombudsman about the steps you should take.

Your state might have different regulations than the general law of this article. You should talk to an elder law attorney near you.

References:

National Consumer Voice. “Antipsychotic Drugs.” (accessed August 15, 2019) https://ltcombuds man.org/issues/misuse-of-antipsychotic-drugs

Identity Thieves Continue to Aim at Seniors

Despite strong efforts by scammers, it is still possible to stay safe.

We are all vulnerable to identity thieves but much of the action seems to focus against seniors, according to My Prime Time News in “Senior Identity Theft: How to Stay Safe.”  More than a third of complaints to the Federal Trade Commission in 2017 were from seniors.

Why are seniors more vulnerable to theft? There are a number of reasons. One is that you are a far more interesting target for thieves now, than you might have been earlier in your life. You’ve got a lifetime of savings set aside for retirement. While you’ve got that nice nest egg, it’s possible that you may not be up to date on all of the latest ways that thieves use technology to scam people.

Not all seniors know that caller ID can be fooled into showing that a call is coming from Social Security, when it’s really coming from overseas. Email design is so sophisticated that it is easy for an email to be created using logos and typefaces that make it appear like it does come from a big bank—but it’s from a spammer.

Prevention is the best medicine when it comes to identity theft. There are several steps you can take to protect yourself:

• Be smart about your personal information. Never give your personal information out to anyone, don’t answer calls from phone numbers you don’t recognize and don’t reply to emails from unknown senders.
• Prevent checks or personal information from falling into the wrong hands, by ensuring that Social Security benefits, pension funds and any other retirement income checks are direct deposited into your accounts. All it takes is one paper check from the mailbox for someone to do serious financial damage to your life.
• If you are the caretaker of a family member, proactively protect their finances from fraud. If you have power of attorney, monitor their credit reports to ensure that no new accounts are opened in their name.
• If a loved one has accidentally given out personal information, have an initial fraud alert placed on their accounts for one year. If they’ve already been a victim of identify theft, have an extended fraud alert place on their accounts.

Identity theft is rampant in this brave new world, and can happen even when we are watching for it. 

Reference: My Prime Time News (June 2, 2019) “Senior Identity Theft: How to Stay Safe”

Scammers Change Identity to Social Security

Claiming to be from Social Security may give scammers a better chance of getting your assets.

Federal authorities say they have seen a number of scammers move away from claiming to be IRS agents to claiming to be from Social Security, according to The New York Times in “Latest Rash of Calls Come From ‘Social Security’,”

That doesn’t mean to say that the IRS scam isn’t still around. The IRS lists the “imposter calls” as one of its dirty dozen scams. Scam artists are flexible and quick to adapt to changing circumstances and trends.

More than 76,000 reports about fake Social Security calls were made in the twelve months ending in March, with reported losses of $19 million. That’s according to the Federal Trade Commission (FTC), which investigates consumer fraud.

By comparison, consumers reported $17 million in losses to the IRS scam during its peak time, the twelve months that ended in September 2019. This information comes from the FTC’s Consumer Sentinel Network database, a pool of millions of consumer complaints.

The typical loss to an individual consumer is about $1,500. However, those are only the people who have contacted the FTC to report their situation.

In most cases, the criminals are aggressive and try to scare their targets into action. The caller tells the person that their Social Security number has been suspended, because it has been involved in a crime or  due to suspicious activity. The caller often asks the victim to confirm their Social Security number. They tell their victims that they must act fast and that their bank accounts will be frozen if they don’t act quickly.

Some people, especially seniors, are scared into action. However, the calls are not real.

The Social Security Administration does not make phone calls to individuals out of the blue. Don’t reveal or confirm your Social Security number to anyone who calls.

Don’t trust the number that appears on your caller ID. Thieves use technology to make it appear that the calls are coming from a government agency, but they are not.

In April, the inspector general of Social Security warned consumers that fake calls had spoofed the agency’s own fraud hotline number. That number will never appear on a consumer’s phone, as it is never used to make outgoing calls. The best thing to do is hang up.

If you are concerned that the call might be real, call the agency directly yourself, using a phone number that you have found and not the number given to you by the scammer.

Older adults are more vulnerable to these calls, because they have access to their lifetime savings and they often exhibit behavior that puts them at risk. During a study of scam awareness, more than three fourths of seniors did not recognize the number but still took the call.

Reference: The New York Times (May 3, 2019) “Latest Rash of Calls Come From ‘Social Security’”