William & Mary Elder Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: September 2015

The Signs, Symptoms and Preventative Measures of Financial Abuse of the Elderly

By Jessica Colton, Elder Law Clinic Student, Spring 2015

It is 3:00 a.m. and an elderly widow is woken by a ringing phone.  Answering,  a man on the other end poses as Canadian law enforcement and claims to have her grandson in police custody.  Telling the drowsy, confused woman that her grandson’s health is in danger, he instructs her to wire $5,000 to the police station for bail. The caller uses the grandson’s first-name and, with great urgency, explains that her grandson’s parents cannot be reached and the situation is dire.  Scared and confused, the elderly grandmother wires the money, while her grandson quietly sleeps in his college dorm room, safe and sound in the United States.  Contacting her son in the morning, the elderly woman learns she has been conned.  Local police cannot trace either the phone number or the account.  The money is gone.

The elderly are frequently the targets of financial scams perpetrated by strangers descending upon their diminished mental capacity and savings via fake charities, investments, home repairs, and even phone scams claiming a family member is in trouble.  Especially susceptible to financial abuse are elderly individuals recently widowed whose deceased spouse previously handled the couple’s finances.  Common are credit scams in which the elderly person, unaware of his or her debts, is persuaded into paying money to a sham company threatening to repossess a car, home, or other valuable asset.  Scammers specifically target elderly widows and widowers by perusing public obituaries that list the elderly individual as a surviving spouse.  Also very attractive to a would-be scammer is a widow or widower who does not have local family, or even any family at all, to care for his or her well-being.

Even more disturbing, financial abuse of the elderly is often committed much closer to home, by the older individual’s family, neighbors, or trusted professionals.  Financial abuse can also be tricky to spot, as it can take many forms.  Fortunately, prudent caregivers and relatives can short-stop financial harm to elderly loved ones by remaining alert for signs and symptoms of financial abuse. As an example, one might take notice that an elderly person’s living conditions are far below his or her financial means, such as going without utilities like cable or heat when funds should be ample to cover basic living expenses.  To a watchful relative or neighbor, this might raise a red flag that funds are being diverted elsewhere and not to the elderly individual’s benefit.  Other indicators of financial abuse include unusual bank activity, such as the taking out of large, unexplained loans, large or frequent gifts made by check or cash to a caregiver, relative, or financial professional, or missing personal belongings of some value.  Attentive relatives will also take notice if an elderly individual seems distant or has lost interest in family activities.  Caregivers or relatives seeking to financially manipulate an elderly individual will often try to isolate the older person from friends and family.  These abusers will manipulate the elderly into holding negative beliefs about family members based on lies or exaggerations, while simultaneously creating positive associations for themselves as saviors with pure intentions or as sympathetic victims in need of financial help.

 

A Fresh Take on Clinic Cases: How W&M’s Elder Law Clinic is Taking on New and Challenging Cases While Providing Students With a Meaningful Learning Experience

By Ann Cortez, Elder Law Clinic Student, Spring 2015

Established in 2012, the William & Mary Law School Elder Law Clinic has worked hard to address the many needs of the elderly community in Hampton Roads. The practice of elder law is multi-faceted and within its purview the clinic has covered many legal issues including Medicaid application, elder abuse, the drafting of wills, the establishment of guardianship, and more. This expansive scope allows the Clinic to serve the community in a manner that addresses their most pressing needs. Through this work, many Clinic students have had the opportunity to help clients overcome various often time complex legal issues.

This semester, the Clinic has had the opportunity to expand its scope slightly due to a few select cases that have sought out the Clinic’s assistance.  Though all cases are in some vein related to the key legal issues that the Clinic focuses on, these cases have given the Clinic the opportunity to explore new legal issues in a manner that may open the door for similar cases in the future.

First, the Clinic has had the opportunity to work on a restoration case. Typically, the Clinic has focused on cases that focus on the appointing of guardianship and conservatorship over individuals, which effectively transfers the rights of that individual to an alternative party. This is often time used when the Court finds that the individual is unable to make decisions for and provide for him or herself in a healthy manner. Restoration, on the other hand, undoes the process of guardianship and restores the rights of the individual should the Court find them competent.

Second, the Clinic is currently exploring the opportunity of working on a probate case in which the Clinic would challenge the execution of a will. While this is of the same vein of drafting client wills and estate planning, this would be an expansion from the Clinic’s typical services as this may involve a more litigation based approach.

These creative cases speak to the accessibility and experience that the clinic has manifested over the last few years. As always, the Clinic continues to provide trustworthy and important legal services to their clients, and these cases are an exciting development in the Clinic’s achievement of its mission to serve the greater community

Are You Your Father’s (or Mother’s) Keeper in Virginia?

By Caleb Stone, Elder Law Clinic Student, Spring 2015

Most people know that every state imposes a legal obligation upon parents to provide for their children; however, many Americans would be surprised to find out that their states also have statutes mandating that adult children take care of their indigent parents. The laws are often called “filial duties,” are on the books in at least 25 states.[1] The majority of these filial laws are civil obligations, but 12 states impose criminal penalties for the failure to comply.[2] These laws, though not commonly-known, have a long history that can be traced back to 16th Century England, where they were part of an effort to combat widespread poverty.[3]

Today’s America, while very different from 16th Century England, has a major problem: a booming aging population with not enough financial resources to completely support themselves. The current average lifespan in the United States is nearly 79 years old,[4] up from approximately 49 years old in 1902.[5] Some commentators point out that these demographics could lead more government officials to enforce the filial laws already on the books.[6] Indeed, looking internationally, China recently passed laws imposing this legal burden upon its citizens, citing in part the long-term strain the elderly would place on their social welfare system.[7] Filial laws have garnered more academic discussion in recent years,[8] especially after a Pennsylvania court in 2012 used filial laws to hold a man responsible for his parents’ $92,000 medical bill.[9]

Virginia does have such a filial law, but it seems to be more lenient than Pennsylvania’s. The pertinent statute does state that “[it is] the duty of all persons . . . of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father . . . .”[10] Research, however, indicates that this statute has not been used to hold an adult child financially liable since 1978.[11] Unusually, the statute does not apply if there is “substantial evidence of desertion, neglect, abuse, or willful failure to support any such child” or “if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program.”[12] So, while it does not seem that Virginia is going to start enforcing this statute anytime soon, Virginia residents with elderly parents should understand the possibility that their moral obligations could, in theory, be enforced by the coercive power of the courts.

[1] Donna Harkness, What Are Families for? Re-Evaluating Return to Filial Responsibility Laws, 21 Elder L.J. 305, 321 (2014).

[2] Id.

[3] Keli Goff, Are You Legally Responsible for Your Elderly Parents?, The Daily Beast (Apr. 26, 2014), http://www.thedailybeast.com/articles/2014/04/26/are-you-legally-responsible-for-your-elderly-parents.html.

[4] Life Expectancy FastStats, CDC, http://www.cdc.gov/nchs/fastats/life-expectancy.htm (last visited Mar. 20, 2015).

[5] Laura B. Shrestha, Cong Research Serv., RL32792, Life Expectancy in the United States 3 (2005), available at http://www.cnie.org/nle/crsreports/05mar/RL32792.pdf.

[6] Goff, supra note 3. But see Matthew Pakula, The Legal Responsibility of Adult Children to Care for Indigent Parents, Nat’l Ctr. for Policy Analysis (July 12, 2005), http://www.ncpa.org/pdfs/ba521.pdf (stating that filial laws will continue to be rarely enforced because federal law prevents states from considering the financial responsibility of non-spouses when determining eligibility for Medicaid or other poverty programs).

[7] See Edward Wong, A Chinese Virtue Is Now the Law, N.Y. Times, July 3, 2013, at A4, available at http://www.nytimes.com/2013/07/03/world/asia/filial-piety-once-a-virtue-in-china-is-now-the-law.html.

[8] Harkness, supra note 1, at 321.

[9] Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719 (2012).

[10] Va. Code Ann. § 20-88 (2014).

[11] See Peyton v. Peyton, 8 Va. Cir. 531 (1978)

[12] Va. Code Ann. § 20-88 (2014); see also Patrick C. Murphrey, Picking up the Tab for Mom & Dad: A Look at Filial Responsibility Laws in 2011, Fam. L. News (Va. Bar Ass’n), Summer 2011, at 3, available at http://www.vsb.org/docs/sections/family/summernews2011.pdf.