Upholding Justice for Older Americans: Free National Webinar

June 15, 2020 is World Elder Abuse Awareness Day. You have the opportunity to learn from federal government leaders how they are seeking global solutions for elder abuse. The 90 minute free webinar starts at 10:00 AM on June 15.

Hope to “see” you there.

“Elder abuse is a global social issue which affects the health and human rights of millions of older persons around the world, and an issue which deserves the attention of the international community. The United Nations General Assembly, in its resolution 66/127, designated June 15 as World Elder Abuse Awareness Day. It represents the one day in the year when the whole world voices its opposition to the abuse and suffering inflicted to some of our older generations.” – The United Nations 

Victoria Blachly: SYK AttorneyVictoria Blachly is a partner at SYK, and an experienced fiduciary litigator that works with many elderly clients, cases and causes. She is also a proud Board Member for the Oregon Alzheimer’s Association Chapter.

Attorneys Blachly & Pasieczny Present on Combating Financial Elder Abuse

Recent Tools to Combat Financial Elder Abuse”: a closer look at mandatory and permissive conduct for Oregon securities professionals.

Today, over 46 million Americans are 65 years of age or older. This accounts for nearly 15{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the population. According to the Population Reference Bureau, that number is projected to more than double by the year 2060. It will reach an estimated 98 million and 24{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the U.S. population. Approximately 1 out of every 10 Americans, age 60 and older have experienced some form of elder abuse. Estimates of financial elder abuse and fraud costs range from $2.9 billion to $36.5 billion annually

On Thursday, February 21st, SYK attorneys Victoria Blachly and Darlene Pasieczny will speak to the Oregon State Bar Securities Regulation Section about financial elder abuse in the securities industry. Their program “Recent Tools to Combat Financial Elder Abuse: Mandatory and Permissive Conduct Under FINRA Rules and Oregon Law for Securities Professionals,” will take a closer look at Oregon statues and FINRA rules regarding mandatory and permissive conduct for brokers and investment advisers when there is reasonable suspicion of financial abuse.

Meet the experts – Victoria Blachly and Darlene Pasieczny

Victoria Blachly is a fiduciary litigator, licensed in Oregon and Washington. She represents individual trustees, corporate trustees, beneficiaries, and personal representatives in often difficult and challenging cases including:

  • Trust and estate litigation
  • Will contests
  • Trust disputes
  • Undue influence
  • Capacity cases
  • Claims of fiduciary breach
  • Financial elder abuse cases
  • Petitioning for court instructions
  • Contested guardianship and conservatorship cases.

Darlene Pasieczny is a fiduciary and securities litigator. She represents clients both in Oregon and Washington, with matters regarding trust and estate disputes, financial elder abuse cases, securities litigation, and represents investors nationwide in FINRA arbitration. Her article, New Tools Help Financial Professionals Prevent Elder Abuse, was featured in the January 2019, Oregon State Bar Elder Law Newsletter.

Report abuse

If you suspect someone is being abused, neglected, or financially exploited, please reach out to the Oregon Department of Human Services. Also, you may consider hiring a private attorney to help employ legal tools to prevent harm, or recover financial losses.

Oregon Decides that Attorneys, Dentists, Optometrists, Legislators, and Chiropractors Will Be Mandatory Elder Abuse Reporters as of January 1, 2015

In House Bill 2205 (HB 2205), the Oregon Legislature expanded the list of those professions whose members are required to report suspected elder abuse. Governor Kitzhaber signed HB 2205 into law on June 11, 2013. Under ORS 124.050, an elderly person is defined as anyone 65 years of age or older and abuse includes, but is not limited to, neglect, physical injury and financial exploitation.    

Attorneys will be required to take mandatory abuse reporting continuing legal education classes (CLEs), that will cover elder abuse. Presently, attorneys are mandatory child abuse reporters and are required to take CLEs covering that mandatory reporting obligation. An attorney is not, however, required to breach a client confidence in order to meet this reporting requirement, nor is an attorney required to report if disclosure of this information will be detrimental to his or her client.

The expanded mandatory reporting obligations take effect on January 1, 2015. The bill can be found at the following link: http://www.leg.state.or.us/13reg/measpdf/hb2200.dir/hb2205.en.pdf

Cruze: Elder Case

Oregon’s Court of Appeals recently made a step towards clarifying Oregon’s statute prohibiting financial abuse of “vulnerable persons” (which includes persons age 65 and older) under ORS 124.110. However, the broad contours of the elder abuse laws in ORS Chapter 124 remain far from certain.

In Cruze v. Hudler, 246 Or App 649 (November 23, 2011), the court addressed various fraud claims alleged against Markley in an investment scheme. While not discussed in depth by the court, one of these claims was for financial abuse of an elderly person under ORS 124.110(1)(a) where an action may be brought under for financial abuse in the following circumstances:

When a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person.

Cruze, 246 Or App at 649. The court referred to another Oregon case, Church v. Woods, 190 Or App 112 (2003), and paraphrased it to mean that “conduct is ‘wrongful’ under ORS 124.110 if it is carried out by improper means, including deceit and misrepresentation.” Id.

This phrase “wrongfully takes or appropriates” is a slippery one. In Cruze, the alleged abuse was wrongful taking through fraudulent misrepresentation – a tort claim that requires showing, among other things, that the party subjectively intended to deceive the victim.These cases suggest that, at least for the purposes of ORS 124.110(1)(a), a person who mistakenly but incorrectly takes money or property from an elderly person in an otherwise lawful context should not create elder abuse liability.  But as with many legal issues, guarantees are tough to come by.   

The effect mental capacity has on contractual rights

From time to time we publish summaries of interesting trust and estate cases. Today’s post examines a recent Oregon Appeals Court decision in the rapidly expanding field of elder law. The case involves an elderly woman with impaired mental capacity and asks whether she may be a considered a third-party beneficiary (under contract law) of a residency agreement signed on her behalf. The case also touches on the issue of arbitration clauses in residency agreements at senior housing facilities. Arbitration clauses like the one at issue in this case have been the subject of a number of recent 9th circuit cases.

Drury v. Assisted Living Concepts, 245 Or App 217 (2011)

Background: Dorothy Drury was suffering from dementia and her mental capacity was severely impaired at the time her son, Eddie, admitted her to the defendant’s assisted living facility. Eddie signed the facility’s admission paperwork and residency agreement. At that time he was not yet Dorothy’s guardian or conservator and did not then have a power of attorney for her.

The residency agreement included a clause requiring arbitration for all claims or disputes relating to the agreement or the services provided “to You by Us.” After about a year in the facility, Dorothy died as a result of injuries sustained in a fall. Her estate’s personal representative sued the facility for wrongful death resulting from negligent conduct. The defendants (unsuccessfully) moved to compel arbitration, arguing that the estate was bound to the arbitration clause in the residency agreement as a third-party beneficiary of the contract.

On appeal, the court held that Dorothy’s estate was not bound to the agreement and its arbitration clause. Under general contract law principles, a third-party beneficiary is presumed to assent to a contract when it accepts benefits or otherwise seeks to enforce rights under that contract. Dorothy was a “third-party donee beneficiary” of the residency agreement signed by her son. The critical issue for the court was Dorothy’s mental capacity – or lack thereof. Even though Dorothy accepted the contract’s benefits (the facility’s services and apartment), her lack of requisite mental capacity meant that her acceptance of benefits did not ratify the contract.

California Attorney Disbarred for Sham Marriage to 85 Year Old Client

A California attorney is facing disbarment for her allegedly sham marriage to her 85-year-old client (she’s 54), where she got $339,000 and he was cremated after his death – in direct contradiction to his intentions as set forth in his will.

The Judge reported the attorney "took advantage of a lonely, sick old man" and thwarted his intent to transfer his estate to his nieces.

Financial elder abuse comes in all shapes and sizes. 

Contact Info for Mandatory Elder Abuse Reporters in Oregon

Oregon law ORS 124.040 requires certain people report suspected elder abuse:

(a)  Physician, naturopathic physician, osteopathic physician, chiropractor, physician assistant or podiatric physician and surgeon, including any intern or resident.
(b) Licensed practical nurse, registered nurse, nurse practitioner, nurse’s aide, home health aide or employee of an in-home health service.
(c) Employee of the Department of Human Services or community developmental disabilities program.
(d) Employee of the Oregon Health Authority, county health department or community mental health program.
(e) Peace officer.
(f) Member of the clergy.
(g) Regulated social worker.
(h) Physical, speech or occupational therapist.
(i) Senior center employee.
(j) Information and referral or outreach worker.
(k) Licensed professional counselor or licensed marriage and family therapist.
(l) Any public official who comes in contact with elderly persons in the performance of the official’s official duties.
(m) Firefighter or emergency medical technician.
(n) Psychologist.
(o) Provider of adult foster care or an employee of the provider.
(p) Audiologist.
(q) Speech-language pathologist 

Contact information to report suspected abuse in Oregon:

  • Multnomah County Adult Protective Service:  503.988.4450
  • Multnomah County APS after hours:  503.988.3646
  • APS:  1.800.232.3020
  • Senior Helpline and Elder Abuse Reporting Hotline:  503.988.3646
  • Benton County:  1.800.638.0510
  • Clackamas County:  503.655.8640
  • Clatsop County:  1.800.442.8614
  • Columbia County:  503.397.3511
  • Coos County:  1.800.858.5777
  • Deschutes County, Bend:  1.800.452.5684
  • Dechutes County, La Pine:  541.536.8919
  • Deschutes County, Redmond:  541.548.2206
  • Douglas County, Reedsport:  541.271.4835
  • Douglas County, Roseburg:  1.800.234.0985
  • Jackson County:  541.664.6674
  • Josephine County:  1.800.633.6409
  • Lane County, Cottage Grove:  541.682.7800
  • Lane County, Eugene:  1.800.441.4038
  • Lincoln County:  1.800.638.0510
  • Linn County:  1.800.638.0510
  • Marion County, North:  1.800.469.8772
  • Marion County, South:  503.373.7380
  • Marion County, Woodburn:  503.981.5138
  • Multnomah County:  503.988.5480
  • Polk County:  1.800.469.8772
  • Tillamook County:  1.800.584.9712
  • Washington County:  503.693.0999
  • Yamhill County:  866.333.7218

 

Financial Abuser = Slayer: Good Law or Litigation Minefield?

Washington State Substitute House Bill 1103 – 2009-10, effective July 26, 2009, prevents an abuser from inheriting property or receiving any benefit from the estate of a vulnerable adult who was the victim of financial exploitation by the abuser.

This may be a trend other states are keen to follow.

Generally speaking, “no slayer or abuser shall in any way acquire any property or receive any benefit as the result of the death of the decedent.” That is, an abuser is treated the same as a slayer with respect to the distribution of the decedent’s estate, although the court has equitable discretion and may consider, among other things:

  • Elements of decedent’s dispositive scheme;
  • Decedent’s likely intent given the “totality of the circumstances”; and
  • The degree of harm.

A criminal conviction conclusively determines an abuser, but civil conviction must be by clear, cogent, and convincing evidence.

In many sad cases, financial exploitation is obvious, and the punitive impact of this new law certainly should apply. However, how will this impact other cases where the facts are not so easy to resolve? If there is insufficient evidence for a criminal conviction, but the fact finder proceeds to a determination in civil court, could this new law unnecessarily punish those that failed to have the foresight to properly document every gift from the dearly departed? How many keep written documentation of a gift, particularly from a family member? And when that elderly person becomes more mentally and physically frail, at what point does the average person have the medical or other specialized training to determine whether there is exploitation? The often dysfunctional response to grief and inheritance can lead to unwarranted allegations of who loved the decedent more and who sucked the funds (and life) right out of dear ol’ mom or dad. It can turn ugly, quickly. Is it “financial exploitation” or is it “but Mom always paid for everything, because I’ve never stood on my own two feet in my life?”

The new Washington law provides an escape in that a defendant may avoid liability if the court finds by clear, cogent, and convincing evidence that the decedent knew of the financial exploitation and subsequently ratified it. Maybe that’s enough room for those unjustly charged to avoid liability. Maybe not.

“The Only Thing Is, I Didn’t Die In Time”

Two recent and sad stories involving financial abuse of the elderly have come to light locally. The first story is the tale of Evelyn Roth, an 83-year-old esophageal cancer patient who signed a power of attorney for her cousin and niece, who then liquidated her assets. The now-indicted relatives, Virginia Kuehn and Kathleen Jingling, told investigators the “doctors guaranteed us she would die by August.” (Another example of the problem with medical care in America? You can’t rely on the doctors’ guarantee? I think not.) As poor Roth stated, “The only thing is, I didn’t die in time.

 

What is it about people that when they are given a little bit of power (through a legal document like a power of attorney, through a joint bank account set up just to “help” with paying bills, or through a fiduciary position like a trustee), and a little bit of money, that their brains short-circuit and they start spending it as if it were their own? It’s not their money! There is no entitlement! There is no “well, nobody is going to know, so I’ll just take a bit from here or there!” As Roth’s cousins are learning, it’s not only unethical, it’s also illegal.

Gayla Ross just learned from a jury verdict in Washington County, Oregon, that she may have time in prison to contemplate her bad acts in taking $1 million from her 87-year-old mother, Clara Philpot, to finance Ross’ luxury home – and Philpot has been diagnosed with Alzheimer’s disease since 2002. As the court-appointed guardian stated, ‘It took Gayla less [than] two months to squander a lifetime of work.”  

Now the mortgage company is also in the cross-hairs, as the guardian proceeds with a lawsuit on behalf of Philpot. 

Be alert. With the aging population and an economy that may well bring out the worst in some people, financial elder abuse is a serious concern. 

Seek protection:

  • Get an attorney to prepare for estate planning, power of attorney, trust, or other legal needs well in advance of it ever becoming a problem;
  • Hire a criminal or civil attorney to recover losses;
  • Call the Oregon statewide hot line to report abuse: 1.800.232.3020;
  • Report abuse at  Aging and Seniors and People With Disabilities.