California Probate - Law Offices of Janet Brewer Blog

What to Do If You Suspect that Your Aging Parent Is Starting to Lose Mental Capacity

It’s a scary feeling to realize that your aging parent could be starting to lose mental capacity. From an estate planning and preservation perspective, you may need to take some specific steps to help your parent.

Signs of Losing Mental Capacity

While not everyone shows the same signs if they are losing capacity, it might be time for you to step in if you notice the following:

• Trouble paying the bills or filling out forms
• Difficulty communicating clearly
• Foggy memory
• Not understanding conversations about health or finances

In California, you need certain levels of mental capacity to sign a contract, make a will, or make medical decisions for yourself. If your parent declines to the point that he or she cannot make decisions on his or her own behalf, then any wills signed or contracts made after that point might be invalidated by a court later. More importantly, your parent might need help taking care of himself or herself.

Options for Parents and Children

Children can encourage their aging parents to make estate plans before their health declines. An estate plan for an older parent should include an advance directive, living will, and/or medical power of attorney. These documents enable an agent of the parent’s choice to make certain medical and end-of-life decisions for the parent when he or she is unable to do so. The parent also could sign a financial power of attorney allowing an agent to handle finances, pay bills, and even manage investments if needed.

Further, parents should complete any desired estate planning as early as possible if they are starting to show signs of declining capacity. Children can encourage their parents to visit an estate planning attorney as soon as possible (just after retirement from a job is often a good time).

If your aging parent is having a lot of trouble making decisions, managing personal care, or handling finances, it could be time for a conservatorship. In California, a conservatorship involves a judge appointing a conservator to handle day-to-day needs, financial needs, or both for an adult. Obtaining a conservatorship is a complicated legal process that may require the help of an attorney, but it may be the best option for your parent.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

What Can You Do If You Have Been Unintentionally Left Out of a Will?

If you feel that you have been unintentionally left out of a will, you are probably wondering about your rights. Some people omitted from wills have rights to inherit by law, while others must challenge the omission in court.

Omitted Children and Spouses

Sometimes, a person creating a will does not provide any inheritance for a child or a spouse. This frequently happens when the person makes the will before marriage or before birth of a child but neglects to change it afterwards.

California law automatically provides inheritances to omitted children who were born after the will was signed. They receive the portion of the estate that they would have received had the deceased person died without a will. Spouses who married after the will was signed also are entitled to inheritances by law. They receive half of the deceased person’s community property, half of the deceased person’s quasi-community property, and the portion of the separate property that they would have received had the deceased person died without a will.

Intentionally Disinherited

Sometimes it is intentional that a spouse, child, or other relative is not provided for in the will. Spouses and children cannot inherit if the deceased person’s will explicitly says that he or she does not leave any assets to them. The same is true for other relatives. If the will does not include an explicit statement about disinheritance, then it is less clear whether the deceased person intended to disinherit someone. This can lead to a probate court dispute.

What to Do If You Have Been Disinherited

If you have been disinherited explicitly or just left out of a relative’s will, you may have grounds to challenge the will in probate court. Common grounds for challenging a will include:

• Someone unduly influenced the deceased person into disinheriting people
• The deceased person was not of sound mind when he or she made the will
• Something is wrong with the will (such as being improperly witnessed or unsigned) and an earlier will should be used instead

You cannot challenge a will just because you have been disinherited – you must have good legal grounds to go to court. Anyone who feels that he or she has been wrongfully disinherited should talk to a probate lawyer about available options and legal theories.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Holographic Wills and Why to Avoid Them

In California, you could create a holographic will, but it is best to avoid them for several important reasons. These handwritten wills must meet many legal requirements to be valid – leaving plenty of room for mistakes – and they may be easier to challenge in court.

Many Legal Requirements for Holographic Wills

California law mandates that holographic wills meet certain standards to be considered valid. Typical, typed or printed wills have to be properly witnessed and must be made when the testator has capacity. Sometimes, people decide to handwrite wills and not have them witnessed in accordance with the laws for typical wills. But the law allows assets to be distributed according to a holographic will if the signature and the material provisions are in the will maker’s handwriting. If the holographic will does not contain information about its execution date, then:

• The holographic will is invalid to the extent of any inconsistency with another will unless the court can establish that the holographic will’s execution date is after the other will’s execution date; and
• If the will’s creator lacked testamentary capacity at any time during the period when the holographic will might have been signed, then the holographic will is invalid unless the court can establish that it was executed at a time when the testator did have testamentary capacity.

Although a will is holographic if the signature and material provisions are handwritten by the will’s creator, it can also contain printing (as with a commercially printed form will). Sometimes people use form wills and write in full sentences or cross out and add in information in the margins, so that law takes that into account.

Challenges to Holographic Wills

Holographic wills may be more subject to challenge in probate court because they are handwritten. They may contain words that are difficult to read or unclear contradictions. They also may be challenged due to their inconsistency with another will that is not handwritten.

Further, handwritten wills that were not witnessed face challenges of fraud, deception, or lack of capacity. The person making the will may have been deceived into copying a document or adding a signature without reading the will. Or the will maker might not have had the ability to understand what he or she was writing or signing. All of these issues can lead to lengthy probate court battles, so having a will prepared by a professional and properly witnessed is a better option.

Want to make your will? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

COVID-19 Bringing Out Scammers Who Target the Elderly

While some of you are home, practicing social distancing and frequent hand washing to avoid the Coronavirus, remember that scammers are still busy trying to take advantage of people.

The Federal Trade Commission (FTC) tells us that the pandemic is bringing out the worst of scammers, peddling COVID-19 cures and treatments, and finding new ways to get your money or personal information.

Here are their top tips to avoid being scammed:

• Remember: right now, there is nothing that has been proven to prevent COVID-19. If anyone tries to sell you a cure or a preventative – especially over the phone – just hang up.
• Anyone who tells you to pay them by gift card, money transfer, cash, or Bitcoin is a scammer. Period. And, if they say they’re from the government, they’re not.
• Never give your Social Security, bank account, or credit card number to anyone who contacts you. Again, not even if they say they’re from the government.
• Don’t be rushed. Whatever the call, email, text, or social media post is about, remember that scammers try to rush you. Legit people don’t.
• Check it out. Before you act on something or share it – stop. Do some research. Do the facts back up the story?

The FTC also reports a rash of scammers pretending to be from the Social Security Administration (SSA), trying to get your Social Security number or your money.

Here's what to know:

• Do not trust caller ID. Scam calls may show up on caller ID as the Social Security Administration and look like the agency’s real number, but it’s not the SSA calling.
• Your Social Security number is not about to be suspended. And your bank accounts are not about to be seized.
• Don’t verify your Social Security number or any other personal information to anyone who calls out of the blue. If you already did, visit IdentityTheft.gov/SSA to find out what steps you can take to protect your credit and your identity.
• SSA will never call to threaten your benefits or tell you to wire money, send cash, or put money on gift cards. Anyone who tells you to do those things is a scammer. Every time.

Here’s a great video on avoiding Social Security scams

Read more about recent scams and how to recognize the warning signs

Resources: Federal Trade Commission, 60 and Over in the Time of Covid? Read This, March 30, 2020 and Avoiding SSA scams during COVID-19, April 7, 2020.

What If the Children are Not Independent – Yet?

At what point does asking for loans, become elder financial abuse?

It is often a challenge for a child to grow up and become an adult. Perhaps more importantly, for the child to become independent from the parents, according to Newsday in “Good to Know: Are your grown-up children taking advantage of you?”

Plenty of parents don’t know what to do when they are asked too many times for too many financial favors. They may feel pressured to agree, worried that they may see their grandchildren or their children less, if they say no. That’s a bad reason for generosity. If the parent is asked to co-sign for a large purchase, like a home or a car, they need to put the brakes on and discuss this thoroughly with their child. It may also be a good idea to speak with an estate planning attorney, for an objective viewpoint.

There needs to be recognition of the child’s creditworthiness. Have they borrowed money from their parents or other family members and failed to pay it back completely, or made only partial payments, and only after being reminded repeatedly? Don’t expect behavior to change. Parents facing this example also need to discuss this between themselves. They should only “lend” money that they can afford to lose.

If the child has been turned down for credit through regular financial channels and the bank of Mom and Dad is the only option, find out why. Ask them for a credit report and be transparent about your concerns. Can you afford to pick up the mortgage payments, if the child fails to make them? What about car loan payments?

Taking advantage of parents can extend past money. Some families welcome their grandchildren with open arms for unlimited times. However, if you find yourself babysitting on weekends and several week nights during the week, it’s time for a discussion. For one family, whose son was interested in spending time with a new fiancé more than with his two toddlers, the situation went on for nearly a year, until the parents gathered the courage to speak up.

They added up all the time they were spending each week taking care of the children. It has turned out that they were watching the children for fifteen hours or more each week. This was discussed calmly. They then made it clear that they were happy to continue caring for the chldren, but for a far more reasonable period of time.

If you feel that your children are taking advantage of you, you’ll need to have a discussion in a calm and reasonable manner. If there are financial matters that are spinning out of control, speak with your estate planning attorney about how to create a plan to stop the flow of money. 

Reference: Newsday (April 14, 2019) “Good to Know: Are your grown-up children taking advantage of you?”

Retirement of Boomers Means More Potential Scam Victims

There are many scammers out there who focus on the elderly. One of them called a retiree with the story they had won big money and a Mercedes. However, they quickly hung up in the wake of too many astute questions, according to the New Haven Independent in “Senior Study Scam Avoidance 101.” Unfortunately, not every senior is as savvy as this one.

According to the Federal Trade Commission, Americans lost more than $900 million in 2017 – that’s $63 million dollars more than in 2016 — to fraud, and many of the victims are seniors, who are routinely targeted.

Some of the cases are debt collection fraud, where a phone caller says they are calling from the IRS or the U.S. Marshall Service, stating vehemently that the person they are calling owes money to the government. The threat of jail time is frightening to enough people, that they fall for it.

Seniors are advised over and over again: the IRS does not call to make threats, and it’s definitely not calling to demand payment in gift cards from a major retailer. However, the scammers speak with authority and are extremely convincing. As a result, many people fall into the traps.

What makes scammers more frightening, is when they use a small piece of the senior’s identity. They may read the home address and insist that they will come to their home to collect the debt. They could also mention a family member, one who has passed away lately, and claim that they know everything about the person.

Another scam is to call and say that a beloved grandchild is in prison or has been kidnapped and needs money fast to pay ransom or bail to get out of jail. If this occurs, immediately hang up and contact the person or someone who can verify their safety, to make sure they are okay.

If someone has been arrested, they have the right to make one phone call. Authorities are not likely to be calling a person’s grandparents for bail money.

Another major source of fraud comes from those who know the senior or befriends them, solely to get their money or even their home. There are tales of caregivers, who become more and more involved in a senior’s life, often pushing their family members away and isolating the individual, so they can’t ask for help. Be wary of new people who are pushy about being helpful, especially if they ask to use your credit card or debit card to run errands for you.

Sadly, there are also many instances of family members who are charged and convicted for financial elder abuse, using their relationship with aging parents or other relatives to gain access to their finances.

Reference: New Haven Independent (Feb. 5, 2019) “Senior Study Scam Avoidance 101”

Decision on POA Should Not Be Made Lightly

It is important to recognize the power of the position.

It is wise to carefully consider naming a Power of Attorney and Durable Power of Attorney for a Health Care document. It is important to choose wisely, according to the Sandusky Register in “Consumer beware: Understanding the powers of a Power of Attorney”

Abuse is a serious problem for elderly people, because they are vulnerable to people who they trust more than they should. This is also a concern to family members.

This illustrates the importance of a Power of Attorney document: the person, also known as the “principal” is giving the authority to act on their behalf in all financial and personal affairs to another person, known as their “agent.” That means the agent is empowered to do anything and everything the person themselves would do, from making withdrawals from a bank account, to selling a home or a car or more mundane acts, such as paying bills and filing taxes.

The problem is that there is nothing to stop someone, once they have Power of Attorney, from taking advantage of the situation. No one is watching out for the person’s best interests, to make sure bank accounts aren’t drained or assets sold. The agent can abuse that financial power to the detriment of the senior and to benefit the agent themselves. It is a crime when it happens. However, this is what often occurs: seniors are so embarrassed that they gave this power to someone they thought they could trust, that they are reluctant to report the crime.

Similarly, an unchecked Health Care Power of Attorney can lead to abuse, if the wrong person is named.

The following is a real example of how this can go wrong. An adult child arranged for their trusting parent to be diagnosed as suffering from dementia by an unscrupulous psychiatrist, when the parent did not have dementia.

The adult child then had the parent admitted into a nursing home, misrepresenting the admission as a temporary stay for rehabilitation. They then kept the parent in the nursing home, using the dementia diagnosis as a reason for her to remain in the nursing home.

The parent had to hire an attorney and prove to the court that she was competent and able to live independently, to be able to return to her home.

We can help you to create or update your estate plan to fit your unique circumstances, including power of attorney decisions. Contact our office today to schedule your consultation.

Reference: Sandusky Register (Feb. 5, 2019) “Consumer beware: Understanding the powers of a Power of Attorney”

All Families Need to Be Wary of Elder Abuse

There are some safeguards you can put in place to protect your loved ones.

Two recent stories of financial abuse of the elderly involving wealthy people are highlighted in the news. However, if the truth be told, all families need to be prepared to protect vulnerable family members from elder abuse, according to AARP in the article “7 Ways to Prevent Financial Elder Abuse.”

Stan Lee is a legend, and not just among comic book fans. The 95-year old creator of Spider-Man and many other superheroes has been enmeshed in a legal tangle that includes charges that a memorabilia collector is attempting to isolate Lee in order to gain control of his fortune, which is estimated at $50 million. A Los Angeles court has issued a temporary restraining order against the collector, who says the charges are false.

An American hero, Buzz Aldrin, is battling with his two younger children, accusing them of trying to get control of his estate by saying he has dementia. He sued his own children in court. They deny doing anything wrong and say his memory loss and increasing confusion is to blame.

Experts believe these kinds of cases will grow as America ages and will continue to remain largely unreported, because most families don’t want to report or prosecute these crimes. Ninety percent of the perpetrators are family members or other people the victim knows well, including caretakers and neighbors. As we get older, we’re not as savvy about finances and sharp operators take advantage of this.

Here’s how you can protect yourself and your aging family members:

• Before anything happens, make a plan that includes power of attorney and heath care directives.
• Stay connected with loved ones through regular visits or phone calls. Video chatting is also good.
• Develop a relationship with your parent’s caregiver. Make sure that she knows you are involved.
• Become a “trusted contact” and monitor banking and investment activities.
• Sign up for a service that tracks financial activity and notifies you of any unusual withdrawals or changes in spending habits.
• Set up direct deposit for checks that arrive regularly, so they won’t have to cash them or ask someone else to cash them.
• Don’t sign any document that you don’t understand and don’t be rushed into signing anything.

Having to keep your guard up to protect yourself or a family member, is not how we like to think of our golden years. However, unfortunately it is necessary.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and can also advise you on protecting family members from financial abuse.

Reference: AARP Bulletin (Sep. 2018) “7 Ways to Prevent Financial Elder Abuse”

Estate Plan Can Guard against Elder Abuse

There are many types of elder abuse. A good estate plan can help prevent such actions.

Three cases of elder abuse have been handled by the Queens County Criminal Court of New York recently and are just a sampling of a far larger problem in the U.S., according to the Queens Daily Eagle in “Nuanced Directives, Power of Attorney Can Stem Elder Abuse.”

As the borough of New York ages, the instances of predatory behavior and outright scams are getting worse. Predators often start out as well-intentioned caregivers.  However, they then start to take advantage of the senior under their care. They may start as someone who comes every day to check on the senior, helping with bills and then they see the senior’s assets. Sometimes they begin thinking they are entitled to some or all the senior’s assets.

Other types of abuse include stealing deeds to homes, when younger people establish seemingly caring relationships with elderly people, marrying them and then stealing their money while isolating the victims from their families. This is sometimes called “granny-napping,” where the caregiver manipulates the senior and turns them against other loved ones or former caregivers.

Cases like this turn to heartbreak for genuine, caring family members. The abuser poisons their loving relationship with a parent or grandparents.

One way to stem this abuse is to ensure that older adults have advanced directives before something occurs. The estate planning or elder law attorney can tailor the document, so the person does not forfeit their rights or property while putting legal protection in place.

What needs to be understood is this: the person who signs the document and becomes a senior’s representative has a fiduciary duty to act in the best interest of the person. If they breach that duty, there are legal consequences.

Bar associations work with attorneys across the country to help them in identifying and stopping elder abuse. The attorneys work with people in the healthcare field and in real estate, two areas where elder abuse occurs.

When an attorney suspects that elder abuse is taking place, the attorney has an option not to represent the agent and refer a case for guardianship on the grounds that the adult is being abused.

In markets where real estate values have skyrocketed, another real estate scam is for property hunters to go to Surrogate’s Court and find out who has died and who has inherited their estate. They approach heirs they deem to be financially or emotionally vulnerable and coax them into selling their property, usually for far below market value.

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances and can also protect your loved ones, regardless of age. If you've spoken with us before and want to make sure everything is current or if you're a new client, we would be honored to look at your plan with you and help you in your unique situation. Contact us today to set up a meeting.

Reference: Queens Daily Eagle (Aug. 8, 2018) “Nuanced Directives, Power of Attorney Can Stem Elder Abuse”

You Want to Help Your Parents but How Much?

Your children are there to help but the help can become “undue influence.”

Children who want to help their parents as the parents age, are advised to consider that there is such a thing as too much influence, referred to as “undue influence,” according to Caring.com, in “How to Stay Respectful (and Legal) In Parents’ Estate Planning.” Every state has some kind of undue influence law that addresses this problem.

To prove that someone has exerted undue influence, a checklist is used and all the items on the checklist must be proven by the party asserting this has occurred. Undue influence is considered to have happened when:

• The deceased person was susceptible to the undue influence
• The accused had the opportunity to influence the decedent
• The accused was influencing the decedent to gain favor
• The accused was in a position of trust and/or authority over the decedent

Notice that undue influence is far more than having more than one conversation with Uncle Ben about his wishes. Its focus is on manipulation—large amounts of it. It happens mostly in nursing homes and long-term care facilities, where someone will build trust with a senior person who is in a vulnerable state. An adult child would normally have this trust, especially if they are the key caretaker. Over time, the elderly parent becomes dependent on one child or one caretaker for daily care and then they become vulnerable to being manipulated.

Undue influence generally involves changes to the estate plan—sometimes many changes or sweeping changes in a short period of time. Other family members are often suddenly disinherited or a large cash transfer to the person takes place, with no prior discussion with other family members.

Speak with an estate planning attorney if you are concerned that you (or a loved one) are being pressured to change your estate plan (or you see evidence of large amounts of money being transferred out of your loved one’s accounts). 

Reference: Caring.com (May 24, 2018) “How to Stay Respectful (and Legal) In Parents’ Estate Planning”