How Estate Planning Can Help Prevent Elder Abuse

by Jenny Ling, Esq.

Most people think of estate planning as protecting your assets and final wishes after your death.  However, just as important is protecting your family and assets if you were to become incapacitated.  As people age, they become targets of financials scams or victims of elder abuse.  When planned correctly with an experienced legal professional, an estate plan can help prevent elder abuse.

Elder abuse can take a wide variety of forms.  Maybe it’s the nice neighbor who was helping to check in on dad and sort his bills, and then convinced dad to add her as a joint account owner under the guise that she can help with the bills more efficiently.  In some instances, those seeking to take advantage of you can even be the ones you love the most. For instance, grandma has Alzheimer’s and her son who was appointed guardian has been siphoning hundreds of thousands of dollars out of her estate.  It’s hard to image such a thing could happen, but without the right planning in place, anyone can be at risk.

Without planning for incapacity, any adult could face court-ordered guardianship if they become incapacitated by illness or injury. It’s crucial that every person over age 18—not just seniors—make a plan to prepare for their potential incapacity.

Should you become incapacitated without a plan in place, your family would have to petition the court in order to be granted guardianship. And it’s this lack of planning that leaves you vulnerable. In most cases, the court would appoint a family member as guardian, but it may be a family member whom you would not have trusted to be guardian. If you have no living family members, or those you do have are unwilling or unable to serve or deemed unsuitable by the court, a professional guardian would be appointed.

There are currently 1.5 million American adults under guardianship, with an estimated 85% of them over age 65. All total, these guardians control nearly $273 billion in assets. And a 2010 report by the Government Accountability Office (GAO) found hundreds of cases where guardians were involved in the abuse, exploitation, and neglect of seniors placed under their supervision.

Unfortunately, situations like these are becoming more and more prevalent. A properly executed estate plan can not only prevent confusion and infighting after the death of a loved one, but it can also help to prevent elder abuse during an individual’s life. Estate planning offers a wide range of avenues that can ensure you and your assets are safe both before and after your death. In difficult times, parties looking to take advantage of elderly persons can prey on those that do not have a properly executed estate plan in place. Thus it is best to take care of planning before any question of incapacity arises.

Creating a trust is one way to avoid guardianship. A revocable trust is a document that provides for the management and distribution of your assets both during your lifetime and upon your death. Two of the advantages of a trust are avoiding probate and guardianship proceedings. You, as the Trustor, transfer your assets to the trust during your lifetime so that the trust is the owner of the assets. You will name a series of Successor Trustees who will serve if you are incapacitated or upon your death. You may also choose to name someone to serve as a Co-trustee with you to assist with management of the trust.

Aside from avoiding probate and guardianship, putting your assets in a trust can help prevent elder abuse during your lifetime. The ability for a third-party stranger to take advantage of an elderly grandparent or parent decreases once the assets are placed into a trust. The trust becomes the sole owner of the assets and the Trustee or Co-trustees are the only parties allowed to distribute, sell or transfer the assets in their capacity as Trustees. Scammers and people seeking to take advantage of the elderly are looking for easy ways to gain access to assets. If the trust is the owner of the assets, it creates multiple hurdles for the would-be abuser to overcome in order to gain access to your loved one’s funds.

If you don’t have a plan in place, or aren’t sure that the plan you have can protect you an your family when you need it most, Contact Us to schedule your complimentary 15 minute estate planning consultation today!

Jenny Ling is a partner at the Law Offices of Jenny Ling, PLLC.  She focuses her practices on estate planning, business succession planning, business and bankruptcy.