We read headline after headline about instances of Elder abuse across the country, but it always seems like it’s not something that we would ever be involved in. Unfortunately, even the best of intentions often backfire.
- NEWS: Special Prosecutors being sought for crimes against Seniors” To combat physical and financial abuse of seniors, which the state Attorney General’s office said is growing across Oregon…the legislature will most likely vote to fund a special prosecutor position and 2 full-time investigators.” Statesman Journal 3/31/15
- NEWS: Daughter sues to a former Medford police detective for $4 million. Daughter was in line to receive her father’s estate until father married the former detective after a brief courtship. Father then changed his will leaving all to his wife. The lawsuit alleges that the detective was familiar with the signs of dementia and married the father to get access to his estate. Statesman Journal 3/27/15.
- NEWS: You, in helping out your terminally-ill friend obtain Power of Attorney, assist him in disposing of his property in order to pay medical bills, which was his wish before passing. You receive none of the money yourself, except for reimbursables. Upon your friend's passing, the sole beneficiary sues you on an Elder Abuse claim when she learns that all of the estate that she would have received was used up to pay bills. The complaint alleges that you misappropriated the friend’s money, while he was incapacitated, and used it to pay for bills that most likely would have been covered by insurance or medicare or would have been later written off after the friend's death. Some of the checks you wrote, from the friend’s bank account, were to yourself to reimburse you for medicine and supplies that you purchased for your friend. Unfortunately, your friend didn’t keep any receipts and neither did you.
Consider just the Financial exploitation of section of the ELDERLY PERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT found at ORS 124.050(4)
Financial exploitation means:
- Wrongfully taking the assets, funds or property belonging to or intended for the use of an elderly person or a person with a disability.
- Alarming an elderly person or a person with a disability by conveying a threat to wrongfully take or appropriate money or property of the person if the person would reasonably believe that the threat conveyed would be carried out.
- Misappropriating, misusing or transferring without authorization any money from any account held jointly or singly by an elderly person or a person with a disability.
- Failing to use the income or assets of an elderly person or a person with a disability effectively for the support and maintenance of the person.
While this law seems pretty straightforward, what does “wrongfully taking,” mean? Unfortunately, the term is not further described in the Act. The Oregon Courts will have to decide the meaning of the term on the backs of unwitting civil defendants. Some will be guilty of only trying to help out!!
And the law goes on to provide Bystander Liability, (ORS 124.100(4)). That means that if someone permits another to engage in financial abuse or if they knew, or “reasonably should have known,” that the abuse was going on, that person can be required to share in paying some of the damages of a successful suit. Oh, and did I mention there can be treble damages awarded (3 times the amount)!? (ORS 124.100(1)(b)). So lawyers and accountants or maybe near family members who don’t speak out may be hit by an Abuse Action.
If you are called upon to assist a terminal or disabled friend in time of need, please make sure that you discuss the potential of being accused of Elder abuse before you get too involved. Please call us today at (503) 363-7334 to discuss this and we may be able to assist you in avoiding a false accusation that could damage you and your own estate.