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This newsletter has, in the past, described various forms of financial exploitation of the elderly, a common and increasing problem in New Hampshire and throughout the country. Given this continuing problem, we thought a reminder of the issue and what every day people might do to assist the elderly to combat exploitation was in order.
Devine Millimet's Probate Litigation Practice Group routinely handles cases in which financial exploitation has already occurred. Often, these cases involve steps to recover funds stolen or efforts to set aside estate planning documents that have been improperly drafted through fraud or undue influence. Once these matters reach our office, the damage generally has already been done and the fight focuses on recovering as much as possible from the wrongdoer. However, as with many crimes, harm can be prevented or at least minimized through proactive efforts of family members, friends, and neighbors. Many of us have neighbors or extended family members who are elderly, perhaps live alone, and are easy targets for financial exploitation. Indeed, the definition of exploitation of the elderly under New Hampshire is quite broad. It is plainly defined as the illegal or improper use of an elder's funds, property, or assets. It often occurs where an individual gains the trust of the elderly person and assumes a fiduciary relationship, obtaining easy access to check books, credit cards, bank accounts, wills, and other financial records. Some of the common signs of financial exploitation include: (a) sudden changes in account balances or banking practices, (b) addition of names to bank accounts, (c) withdrawal and isolation — cutting off family and long-time friends, (d) significant changes in behavior and appearance and health, and (e) the giving of unusual or significant gifts to new acquaintances.
So, what should you do if you witness some or all of these signs? Should you do anything at all? Do you have a duty under the law to act? I suspect that most people would reluctantly admit that they would not want to "get involved." However, under New Hampshire law, any person who suspects or believes in good faith that an incapacitated adult — due to age or otherwise — is the victim of exploitation, has an affirmative duty to report that exploitation to the New Hampshire Department of Health and Human Services. If you have such a good faith belief, you should, at the very least, report the suspected conduct and let the Department conduct its own investigation.
You can also take additional steps to protect a friend, family member, or neighbor. For example, under New Hampshire law, any "interested person" may seek the appointment of a guardian over an incapacitated person. Such action is taken seriously by our courts, as the appointment of a guardian essentially takes away an individual's civil liberties. However, a guardian can provide excellent protection and court oversight for the proper management of an elderly's funds. Any guardianship requires a pleading filed with the probate division of the New Hampshire Circuit Court. The court will appoint an attorney for the proposed ward and is required to hold an evidentiary hearing at which time evidence must be presented to demonstrate that the individual is incapacitated and in need of a guardian. Included in the court's analysis is a determination that no lesser restrictive alternatives exist. If appointed, a guardian will be required to post a bond and will also be required to provide an accounting to the court on annual basis. The bond and annual accounts allow for extra protection and continued court oversight over the actions of the guardian.
If you are aware that an elderly individual has an agent under a power-of-attorney document, and you suspect the agent is misusing her powers for her own benefit, you can also file a petition with the probate division seeking to challenge the agent's actions, seeking a full accounting of the funds over which the agent has control. Any "interested party" may bring such an action. The applicable New Hampshire statute also provides for an award of attorneys' fees against an agent if warranted.
Guardianship and an accounting action are just two ways you — with the probate division's assistance — might help to protect against elderly abuse. With the increase in our elderly population, the increased average life span, and because many of our elderly have significant assets, the problem of financial exploitation will persist. All of us have an obligation to be vigilant and take steps to help those that are being harmed.
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The Devine, Millimet & Branch Probate Litigation Group offers this free periodic Newsletter to provide information regarding probate litigation news and other probate-related topics. If you have any questions about this e-mail, or if you know of others who may be interested in receiving these alerts, please contact us at probate@devinemillimet.com.
This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Devine, Millimet & Branch, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.
© Copyright 2013 Devine Millimet & Branch, Professional Association
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