PPS on Undue Influence: The Civil Side
Caregivers in California who receive last-minute bequests from those they care for are presumed to have exercised undue influence, even if they were close friends. That’s because of a controversial 1993 law that was recently upheld on appeal (Bernard v. Foley).
Probate Code Section 21350 was enacted following a scandal that involved an estate-planning attorney who named himself and his family as fiduciaries for, and beneficiaries of, clients’ estates. The law lists categories of people who can't inherit unless they can prove that transfers weren't the product of fraud, menace, duress, or undue influence. It includes those who draft wills and trusts and law firms, lawyers, and employees of law firms associated with them. And caregivers.
The suit involved 97-year-old Carmel Bosco, a widow who died childless in 2001, leaving an estate of around $448,000. Two months earlier, she’d moved into the home of an old friend, Ann Erman and Erman’s boyfriend, James Foley. Mrs. Bosco made the move at the urging of Erman, who had previously been married to Bosco’s nephew, Arthur Erman.
Erman and Foley took care of Bosco during the last months of her life, tending her bedsores, administering morphine, preparing meals, and helping to change her diapers. They went through her mail and handled her financial and investment affairs. During that time, Bosco amended her living trust several times, each time giving more to the couple– she'd originally left her estate to family members. A few days before she died, she changed it again, naming Foley and Erman each as 50% beneficiaries
Bosco's family, including nephew Arthur, sued, claiming that Foley and Erman had exerted undue influence over Mrs. Bosco, who was gravely ill and heavily sedated when she changed the trust the last time. The case got down to whether Foley and Erman were care custodians, and therefore, covered under the law. Foley claimed that he and Erman were simply “performing acts of kindness on a purely volunteer basis as good friends often do for others.” The trial court agreed.
But the family appealed, the court of appeal reversed, and the California Supreme Court agreed with the appeals court, writing that “a caregiver may be a personal friend, and in fact, personal friends are uniquely in a position to unduly influence the elderly for whom they care.” Chief Justice George agreed with the majority but suggested that the law be amended to differentiate between long–term caregivers and those who provide care for short periods of time.
In response, in September, the California Assembly passed AB 2034, sponsored by the State Bar Trusts & Estates Section, which directs the California law Revision Commission to study Section 21350. The Commission is expected to begin looking at the issue in March.
Monday, December 04, 2006
Postscript on Undue Influence is Not a Crime
Last week, Melissa McKowan, prosecutor in the undue influence case I described in my last post, told me that the California Supreme Court has denied a request to review the appellate court’s reversal, so the case can’t be retried.
Monday, November 20, 2006
Undue Influence is Not a Crime
So said a California appeals court last month in ruling on the case of a 78-year-old San Mateo man who wrote over $660,000 in checks to a friend and helper.
Wednesday, November 08, 2006
Meditations on Mediation
My old friend Fred Hertz is arguably the nation’s leading expert on “gay divorce.” A lawyer, he represents partners in break-ups and has written a book on the subject, been interviewed on NPR, appeared on Oprah, and is frequently quoted in the press.
Tuesday, October 24, 2006
Archstone Foundation Creates Community of Contractors
Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.
Wednesday, October 11, 2006
Perpetrators with Dementias
A couple years ago, a friend who runs a dementia care program asked me to talk to her staff following a tragedy involving a client, a man with Alzheimer’s disease, who'd killed his wife. The staff was understandably upset. But what made matters worse was that some felt they’d seen it coming.
Tuesday, September 26, 2006
Synchronicity, Plumbers and Elder Abuse
Yesterday, I was composing a laundry list of the various disciplines and professionals that have a role to play in stopping elder abuse for a book I’m writing. It included all varieties of health and mental health care providers, bankers, judges, clergy, entomologists (don’t ask), auditors, mail carriers, social scientists and many, many more.
Wednesday, September 20, 2006
Elder ID Theft: Should We be Concerned?
Traditionally, those of us in the field of elder abuse prevention haven’t dealt with “consumer” crimes like telemarketing scams or identity theft. There was no evidence to suggest that elders were targeted, and some studies even suggested that elders were less likely than younger people to be victimized. Besides, our focus was on abuse by family members and acquaintances.
Tuesday, August 22, 2006
Follow-up on Government-Subsidized Elder Abuse
Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:
Thursday, August 17, 2006
Consumer Choice or Government-Subsidized Elder Abuse?
Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”
Monday, July 24, 2006
Saying Goodbye to an Elder Champion
When Bruce Coleman retires from the Royal Canadian Mounted Police at the end of the month, it will be a tremendous loss for American elders and their advocates. As coordinator of “Project Emptor,” a position he’s held since 2004, Bruce has helped countless victims and “would be” victims of telemarketing fraud. Project Emptor, as in caveat emptor, Latin for "buyer beware," intercepts packages and mail that contain “bait letters” from telemarketers and checks or money orders from victims.
Monday, July 10, 2006
Offenders, Victims and Restorative Justice
Last month, I presented at the Offender Treatment, Victim Services, Restorative Justice conference in Miami, which was sponsored by the Institute of Evidence-Based and Best Practices. The conference was a bold one–it’s not that usual to bring victims’ and offenders’ advocates together, and when you throw in sessions on applying restorative justice (RJ) to domestic violence (DV), you know they were pushing the limits.
Monday, June 26, 2006
Remembering Rosalie Wolf
It’s hard to believe that today marks the fifth anniversary of Rosalie Wolf’s death. For many of us, her presence is still very much felt. Almost daily, we see citations to her work, references to JEAN, and news about the organizations she spearheaded and the awards she inspired.
Tuesday, June 20, 2006
Long Distance Undue Influence
Last week, San Diego prosecutor Paul Greenwood posted a message to NCEA’s list serve about an “articulate, coherent and charming” elderly woman who’d sent over $50,000 to telemarketers in Canada despite being warned repeatedly that they were crooks. She described feeling “hypnotized.” It reminded me of when Dennis Morris, a San Francisco prosecutor, came to a meeting of our multidisciplinary team more than a decade ago and asked if anyone knew of an expert in brainwashing.
Tuesday, June 13, 2006
Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees. But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy.
Tuesday, May 30, 2006
Raising the Bar for Elder Abuse Research: Medline accepts JEAN
Kudos to Terry Fulmer, editor of the Journal of Elder Abuse & Neglect (JEAN), and members of her editorial board who successfully got JEAN included among the publications Medline indexes. Medline is the National Library of Medicine's searchable database of publications and is used by researchers, health care practitioners, educators, administrators and students around the world.
Wednesday, May 24, 2006
Ageism, Elder Abuse and Social Justice
It’s not surprising that Paul Kleyman would take offense at a “Close to Home” cartoon that ran in a recent edition of the Washington Post. In it, an elderly bald man is reading a tabloid called Aging Today, which has a wrinkled, swimsuit-clad elderly woman on its cover under the banner "1st annual swimsuit edition.” The cartoon’s caption is “A dark day in publishing.”
Monday, May 15, 2006
Walmart Benefits from Restitution Reform
The other day, I was updating a handout I use for presentations on financial abuse and decided to check up on a project I list in the "Best Practices” section. It's a program created to revamp Vermont’s restitution recovery system, which got started after a 2001 state auditor's report revealed that only 13 cents of every dollar owed for restitution had been collected during the previous year.