With an aging population and growing awareness, reports of elder abuse or neglect and resulting legal responses are increasingly common. Already, the U.S. Department of Justice’s National Center on Elder Abuse estimates that 2.15 million cases of elder abuse occur annually, about one in eight of them involving “financial exploitation.”
When a litigator is brought in to respond to cases of financial exploitation, they often face a complicated minefield of competing interests and uncertainties. The lawyer must deal with issues far beyond the usual probate case, represent a client with potentially diminished physical or mental capacity, and navigate the possibly conflicting agendas of the client’s friends and family. Litigators must quickly determine whether their client is even legally competent to hire them, who in the client’s circle may have ulterior motives and how best to protect the client and their own practice from legal challenges.
Billionaires Sumner Redstone, Donald Sterling and J. Howard Marshall (Playboy Playmate Anna Nicole Smith’s one-time paramour), all have been part of high-profile cases involving their problematic relationships with younger companions. But two in three cases of elder abuse involve female victims, typically involving far smaller estates than found in a billionaire’s bank account. But whatever the estate’s size, the stakes are high for a client and those whom they care about.
As a litigator, I’ve handled numerous cases involving elderly clients, and have developed tactics and approaches to manage these complicated situations. Here are some tips.
The Eyeball Test
No matter who brings you into the case, your first step is to understand the lay of the land, beginning with the client. I immediately arrange an in-person meeting to personally assess the client’s condition. Don’t settle for a phone call. Go see their living conditions and understand how they live.
During that first client meeting, I conduct a low-key, but wide-ranging conversation to understand the client’s mental acuity at a basic level. In this conversation, I’m looking for consistent answers and full engagement, working in questions that subtly test their long-term memory. Where did they grow up? Where did they go to school? When did they get married? Then I work in shortterm memory questions: Have they seen any good movies lately? What did they have for dinner yesterday? Have they had any interesting experiences lately?
I’m by no means a mental-health professional, but that initial conversation is my first “smell” test, to see if anything is obviously awry.
Engage A Professional
I may then take a second precautionary step, as in one recent case where the client and a friend alleged that a third party had exercised undue influence, to get the client to sign a document selling valuable property to the third party at far less than market value. But if the client previously had been unduly influenced to sign that document, how could I depend on her being competent now to decide to hire me?
So, I enlisted a psychiatrist who was noted for working with geriatric patients to assess my client. After his review (paid by the client) certified her mental competency, I could safely take her on, knowing that my client understood the nature of the attorney-client relationship and was capable of making important decisions, such as retaining an attorney.
Tread Lightly, And Know the Support Circle
I also take the time to meet other people in my client’s circle of friends and family. Understanding the other players, and their motivations, conflicts and interests, is essential.
In this client’s case, that process began with the client’s friend who initially had brought me into the case. I needed to know the friend’s motivations and interests, and in turn, those of others involved in the client’s life. I also learned who was handling her finances, why a previous attorney had been terminated, and what the people around her had to gain from her and her estate.
I learned that during the period when the problematic document was signed, her care had been substandard for her age and condition. Importantly, since that time, 24-hour support had been brought in that had stabilized and improved the client’s condition.
It can be too easy to fall into a conflict in these cases if you aren’t careful. For instance, the friend who brought me into this case asked that I represent him too (also to be paid by the client), as a result of becoming entangled in legal matters that arose over the fraudulent document and the friend’s support of the client.
While the friend’s interests seemed to align with the client’s in this case, they’re never guaranteed to stay that way. So, I referred the friend to another attorney with whom I knew I could work well professionally and intelligently to efficiently resolve case issues.
Particularly when navigating the complicated shoals of cases involving the elderly, we should bend over backwards to avoid any possibility of future conflicts.
Know What Your Client Wants
It’s vital to understand your client’s goals. What’s a win for them? In this case, the client wanted to sell her property for as much as possible, to generate sufficient funds to continue living independently, and to then leave as much money as possible to her heirs.
The third party who had duped my client into signing the contract had sued to enforce terms of the deal, and filed a lis pendens that would have prevented any sale. For a 96-year-old woman such as my client, however, this maneuver would have been terribly punitive. We were able to persuade the court to remove this legal obstacle, and paved the way to allowing the client’s property to be sold for several million dollars more than required by the third party’s tainted contract.
I expect most litigators will face more and more cases involving the elderly, possibly with issues involving abuse, fraud and neglect and certainly involving many complications seldom seen in more common cases.
Keep these tips in mind when you wade into these cases, so you can protect your client, and your own firm from potential problems. As I like to say, everyone wants to watch a movie with a twist in the end. You just don’t want to star in that movie. Gerald Sauer