Law Tips: Preventing Financial Exploitation of Your Elderly and Disabled Clients

Welcome back. Thanks to the generous contributions of Jim Voelz, Voelz Law Firm, Columbus, Indiana, Law Tips is looking into the “hidden epidemic” of financial exploitation of the elderly and disabled. This week Jim’s counsel delves into advising clients on gifting of assets and limiting their financial power of attorney. He will also recommend protective steps clients can take to avoid being financially exploited.      

To Gift Or Not To Gift:

Elder law attorneys are frequently asked to give advice about whether the client’s home and other assets should be gifted. Many of our clients and their families know about the high costs of care in the home, an assisted living facility, and a nursing home. They have heard about other folks who have lost their homes, farms, and other assets to pay for the costs of their care, and they do not want that to happen to them. So how are we going to help these clients, and what are we going to advise them to do about their concerns?

I want to focus on the situation where you are asked to give your client advice about gifting when your client is elderly with no immediate health issues that would require care at home, in an assisted living facility, or in a nursing home at any time in the foreseeable future. The issue is whether the client should gift their home and/or other substantial assets now to protect them.

One  option is to advise the client to gift the home and/or other assets now in the hope of getting past the five year lookback from the date of a future Medicaid application that requires the reporting of uncompensated transfers that give rise to a period of ineligibility to receive Medicaid benefits (“transfer penalty”). An argument for this could be that gifts that are made more than five years prior to the filing of a Medicaid application are protected and have no effect on Medicaid eligibility.

What advice should you give?

Your advice should protect the best interests of your client. I suggest that you review in detail all of the potential risks and disadvantages of gifting with your client.

(Law Tips note: The Voelz Law Firm outlines issues for clients in a firm letter describing the potential problems that can arise as a result of gifting assets, such as estate planning problems, loss of control of property and tax consequences. The letter is shared during Jim’s CLE presentation.)

We keep copies of this letter in our conference rooms, because we use these letters often. We give a copy to our client and a copy to each of the family members or other persons who are attending the conference with the client, and we keep a dated copy in our client’s file as documentation of our advice.

After this review, in almost all of our cases, our client decides not to make any gifts. However, if a client still wants to make a gift of their home or other assets, then we usually ask our client to think about what we discussed and schedule a second appointment to have further discussions. If, at that second appointment, the client still wants to gift, then we meet with the client alone, if other family members or others attend this conference, to make sure this is really what our client wants to do without being influenced by other persons who are attending the conference.

We always advise our clients to have a Financial Power of Attorney in place, and we have discussions with our clients about whether they should include certain provisions in their Financial Power of Attorney that could lead toward protecting some of their property if it would make sense to qualify them for Medicaid or other governmental benefits, such as the VA Aid and Attendance Pension, in the future. (See Indiana Code 35-46-1-12.)

If an attorney prepares a Financial Power of Attorney that gives the attorney-in-fact unlimited and unrestricted authority to gift or loan in unlimited amounts, then these provisions can subject your client to the risk of being financially exploited by the attorney-in-fact.

I would suggest the following to reduce or eliminate this risk:

1. Prepare power of attorney provisions that require other persons to agree before gifting or loaning can be done and/or that require the prior approval of an attorney in conjunction with a plan to qualify the client for Medicaid or other governmental benefits.

2. Meet with the client and with the attorney-in-fact to explain the power of attorney and its provisions. This will serve to educate the attorney-in-fact and will also provide an opportunity for you to introduce yourself to the attorney-in-fact, as your client’s attorney, so that you will be consulted in the future.

3. Provide the attorney-in-fact with instructions on how to properly use the power of attorney.

Advice For Your Clients On How To Avoid Being Financially Exploited

An elder law attorney should also be able to advise a client about how to avoid being financially exploited. Here are some suggestions that could be made to a client:

– You should establish your safety net of trustworthy and reliable persons. Sign a Power of Attorney that appoints a person who is 100%trustworthy and who will always act in your best interests. Do this before you have a serious health issue or impairment. If you do not have such a person, then appoint a bank or credit union who has a trust department who will agree to be appointed to handle your financial affairs, if necessary.

– You should establish relationships with experienced professionals who have a good reputation such as an accountant, financial advisor, and attorney and consult with your appropriate advisors before you engage in any questionable transaction.

– Sign-up for the “do not call” list to help stop telephone solicitations at www.in.gov/attorneygeneral (Register For Do Not Call). This does not eliminate all telemarketing calls so do not talk to unknown persons who are trying to sell or give something to you.

– Do not keep a large balance of money in your checking account, arrange for direct deposit of your income, and set-up automatic bill pay for your utility bills and other regular expenses.

– Do not hire caregivers or others who would work in your home without a background check.

– Do not leave your mail in an unsecured mailbox and shred documents with personal identifying information.

– Do not give any stranger or new acquaintance your birth date, Social Security number, or any information regarding your accounts or financial information.

– If you lack mental capacity or become impaired, then allow someone who is 100% trustworthy and reliable and who will always act in your best interests to take over management of your financial affairs.

– Report any questionable request or solicitation to your trusted relative or person.

– Report any suspected or attempted financial exploitation to law enforcement and/or to the Adult Protective Services officer in your area.

 

Thanks again to Jim Voelz for sharing his expertise in the prevention of financial exploitation of elderly and disabled clients.  If you missed his first Law Tips column, you will find it below.  For a comprehensive update in elder law from an outstanding panel, check out the 2014 Elder Law Institute on October 9-10, 2014.

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About our Law Tips faculty participant:
James K. Voelz, Voelz Law, LLC, Columbus, Indiana. Mr. Voelz ‘s law practice primarily involves estate and disability planning, estate and trust settlement, elder law, and Medicaid qualification services. Jim is a member of Hoosier Hills Estate Planning Council, National Academy of Elder Law Attorneys and its Indiana Chapter, and the Indiana State Bar Association’s Elder Law and Probate, Trust and Real Property Sections. Mr. Voelz serves on the Committee on Character and Fitness of the Indiana Supreme Court.  And he is also the author of “Senior Moments” newsletter.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Ex-Husband Violated Protective Order By Requesting Daughter Send Unnerving Text to Ex-Wife

Case: Todd DeWayne Kelly v. State of Indiana 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Ex-Husband’s conviction for violation of a protective order was affirmed, based upon text messages that Ex-Husband sent to his daughter, requesting that she give an unnerving message to Ex-Wife — who had secured the subject protective order against Ex-Husband.

FACTS AND PROCEDURAL HISTORY:
Ex-Husband and Ex-Wife were married, during which they had Daughter. In 2011, the Johnson Circuit Court issued an ex parte order of protection that prohibited Ex-Husband from having direct or indirect contact with Ex-Wife. Leading up to March 2012, Ex-Husband was leaving voicemails and sending text messages to Daughter at all hours. Some of the messages were perceived by Daughter as threatening and scary. One of the messages from Ex-Husband to Daughter stated: “if you see your mom tell her I said rattle, rattle, rattle.”  Daughter was aware of the protective order, so she shared the messages with Ex-Wife. Ex-Wife construed the message as threatening, because Ex-Husband had used the phrase “rattle, rattle, rattle” during their marriage to intimidate her.

Ex-Wife involved law enforcement. Ex-Husband was subsequently arrested, and charged with violation of the protective order. Following a bench trial, Ex-Husband was convicted and sentenced to one year in jail, with 180 days suspended provided Ex-Husband had no further contact with Ex-Wife. Ex-Husband appealed.

On appeal, Ex-Husband argued that the State failed to prove that he directly or indirectly communicated with Ex-Wife. The Court of Appeals disagreed, concluding that the instruction from Ex-Husband to Daughter, that she relay a message to Ex-Wife, demonstrated a clear and deliberate indirect communication.

Ex-Husband’s conviction was affirmed.

To view the text of this opinion in its entirety, click here: Todd DeWayne Kelly v. State of Indiana

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review, News0 Comments

Amateur Life Coach Episode: Pro Bono & Your Practice

Amateur Life Coach Episode: Pro Bono & Your Practice

James J. Bell, ICLEF's Amateur Life Coach

Originally Posted May 2014

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Marion County Superior Court Judge Marc Rothenberg regarding the definition of Pro Bono

Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.

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James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

 

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Family Law Case Review: Grandparents Visitation Order Reversed

Case: In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor
by Mike Kohlhaas, Bingham Greenebaum Doll

[Full disclosure: I participated in the representation of the Appellant in this appeal.]

HELD: Trial court erred when it issued a visitation order in favor of Grandparents.

FACTS AND PROCEDURAL HISTORY:
Mother became pregnant in high school. Weeks before her delivery, Father committed suicide. In 2010, paternity was established by way of an agreed entry between Mother and the paternal Grandparents. Child was born on June 17, 2010.

Mother eventually returned to high school, and graduated with a 3.9/4.0 GPA. She later enrolled at the University of Southern Indiana to study accounting, while working part time in the accounting department of a large local company.

Following Father’s death and Child’s birth, Mother maintained a close relationship with Grandparents. Mother included Grandparents at Child’s birth, baptism, birthday parties, holidays, and other family events. Mother also took Child to Grandparents’ home nearly every Sunday. While Mother would sometimes leave Child with Grandparents for several hours, Mother did not allow any overnights.

In February 2013, Grandparents filed a petition for grandparent visitation, in part because they were seeking overnights and in part because of a stated concern that Mother might reduce or eliminate their access to Child. Initially, Mother continued her Sunday visits to Grandparents’ house after the petition was filed.

Within weeks, Mother began to notice behavior issues with Child after he spent time with Grandparents (e.g., potty training accidents, crying, etc.). After one visit, Mother noticed unexplained bruises on Child’s back. Mother elected to discontinue Child’s visits with Grandparents.

Following an evidentiary hearing, the trial court issued a grandparent visitation order. The order provided for a six-week phase-in that would reach a final visitation schedule of every other Sunday from 10 A.M. to 6 P.M.. No overnights were provided for in the order. Mother appealed.

The Court of Appeals reviewed Troxel and similar Indiana cases dealing with the constitutional aspect of grandparent visitation orders, as well as the resulting four “McCune factors” that must be considered by a trial court prior to ordering grandparent visitation. Applying the McCune factors to the record, the Court of Appeals concluded that Mother’s decision to restrict visitation was not unreasonable, and that the trial court’s finding to the contrary was unsupported. The Court of Appeals also concluded that the trial court gave no weight to the McCune factor that Mother had been providing for some visitation and, thus, the grandparent visitation order was not necessary for Grandparents to have any time with Child; there is an important difference between a parent who limits grandparents’ opportunities to visit with a child, and those who deny it entirely.

The trial court’s grandparent visitation order was reversed.

Chief Judge Vaidik dissented with a separate opinion. She believed that the circumstances surrounding Mother’s decision to stop the visits with Grandparents were such that it was within the trial court’s discretion to conclude that Mother had acted unreasonably because the evidence did not establish a clear nexus between Child’s behavioral issues and bruises with any wrongdoing by the Grandparents.

To view the text of this opinion in its entirety, click here: In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review, News0 Comments