Over the previous 20 years, elder abuse has not solely been acknowledged as an moral drawback in our society, however as a transparent hazard for a few of our seniors. In California, if an elder is experiencing bodily, emotional or monetary abuse, members of the family or others could go to court docket to guard the senior.
County probate courts set up conservatorships for people who can’t take care of themselves, appointing an individual to look at over and take care of them. Sadly, this method creates additional moral dilemmas and alternatives for abuse of seniors by means of the court docket system itself. Present legislation permits the senior’s funds to be tapped to pay for the authorized charges of anybody who questions or objects to the protections. With out sturdy oversight from the courts, attorneys can revenue from this by working up big charges representing opposite members of the family and even monetary abusers, depleting or exhausting the funds wanted for the senior’s care.
In 2010, a sibling and I needed to go to court docket, to acquire a conservatorship for my mother. There have been severe points together with her well being, medical care, hoarding, identification theft, tax funds and misappropriation of her funds. In 2013, the court docket appointed me as my mother’s Conservator. I serve with out compensation and never solely take care of her but additionally try and “preserve” her property by defending her from monetary abuse.
However defending her property has proved nearly not possible, beneath present court docket guidelines. Over the previous 10 years, 14 attorneys have exploited our have to go to court docket to guard my mother and adjust to tax and different legal guidelines, working up giant payments by means of specious authorized actions. This “elder monetary abuse by different means” is especially severe in counties that don’t require attorneys to justify, and courts to look at, how their charges shield an individual or their property.
When a senior has some property, and attorneys know their payments received’t be examined, two or three attorneys from the identical agency could bounce in, unethically inflating their authorized payments. They cost charges for speaking to at least one one other, and for having a number of attorneys overview the identical paperwork.
In our case, even a non-family vexatious litigant acquired into the act, scamming the court docket and our household by posing as a paralegal and requesting compensation by means of the court docket. As with all the opposite authorized payments, the court docket granted his request, as a result of no justification of the charges was required.
All these attorneys have additionally run up payments for the court-appointed legal professional representing my mother and for my legal professional, who should reply to the plentiful, spurious, and at all times unsuccessful litigation they file. My mother, a totally disabled 97-year-old with around-the-clock care wants, is chargeable for paying all these payments.
To counteract this, judges can dismiss attorneys, as has occurred twice in my mother’s case. However the very best safety is strict “native guidelines of court docket” that require attorneys to justify their charges as benefitting the protected individual’s property.
Santa Clara County acknowledged this drawback, after some notable circumstances a decade in the past. Since 2012, native guidelines of court docket in Santa Clara County require that “a petition for compensation of a guardian, conservator, trustee, and counsel, or for counsel for a conservatee or ward, have to be accompanied by an entire assertion of the providers rendered, an evidence of the worth or good thing about these providers to the property, and the full quantity requested for such providers, made beneath penalty of perjury and executed by the individual rendering the providers.”
Then the decide should study whether or not the charges truly profit the protected individual and their property.
No such stringent native guidelines of court docket exist in Alameda, Contra Costa, San Francisco or San Mateo counties, or most different counties statewide. This have to be corrected. To cease the form of abuse that’s occurring, County presiding judges, the statewide Judicial Council and the state Legislature should institute native guidelines of court docket that forestall monetary exploitation by means of the courts, ideally making a statewide normal.
From an moral standpoint, one factor is evident. When they’re known as upon to guard susceptible seniors, the courts shouldn’t be a car for elder monetary abuse.
Gloria Duffy is president and CEO of The Commonwealth Membership. This op-ed is predicated on a presentation to the Silicon Valley Ethics Roundtable, whose enter knowledgeable and improved it.