A guardianship or conservatorship is a relationship created by a court which gives the guardian the ability to make decisions for the ward. While guardianships are meant to protect the interests of the incapacitated person, there is a possibility of exploitation or abuse by the guardian. Links to related online resources are listed below.
A legal guardian is a person who has the legal authority and the corresponding duty to care for the personal and property interests of another person, called a ward. In some cases, there may be a belief that the senior is being financially exploited or about to be exploited. In other cases, the person may be unable to care for him or herself and is not able to properly engage in the activities of daily living without assistance.
This article strives to identify a manageable bit of a broad topic: the presumption of fraud in typical civil cases arising from criminal prosecution for financial exploitation against the elderly. Suppose she, the claimed victim, is 79, but he, a smooth operator, is 90? Is the transaction exploitative because a son Sonny made a huge profit from Mom?
A guardian or conservator—or sometimes both—is appointed by the court when an individual has been determined to be mentally or physically incapacitated, or when a minor is in need of an adult to manage his property. Those in need of such care are referred to as wards of the court. The duties of guardians and conservators can overlap, and sometimes the same person is appointed to both roles, but they're actually different.
Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult. The rules may be amended and supplemented from time to time. The secretary shall direct the coordination of the investigation of complaints of abuse or neglect made pursuant to this article; and the various agencies of the department, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, county prosecutors and any other applicable state or federal agency shall cooperate among each other for the purposes of observing, reporting, investigating and acting upon complaints of abuse or neglect of any incapacitated adult or facility resident in this state.
Every adult should have three documents: a durable power of attorney; an advance medical directive; and a last will and testament. These documents need to be prepared while the adult is competent. A power of attorney authorizes someone to act on your behalf.
Abuse and neglect of incapacitated adults; penalty. It shall be unlawful for any responsible person to abuse or neglect anyincapacitated adult as defined in this section. Any responsible person whoabuses or neglects an incapacitated adult in violation of this section andthe abuse or neglect does not result in serious bodily injury or disease tothe incapacitated adult shall be guilty of a Class 1 misdemeanor.
The final account distributes all remaining assets of the estate. The estate account must show a zero balance on hand. The fiduciary must file an originally signed tax certificate with the final account.
Financial crimes and exploitation can involve the illegal or improper use of a senior citizen's funds, property or assets, as well as fraud or identity theft perpetrated against older adults. While exact statistics on how often financial crimes against the elderly occur are not available, it is widely believed to be underreported by the victims. Thirty-nine states and the District of Columbia states addressed financial exploitation of the elderly and vulnerable adults in the legislative session. It also created a new private right of action for a vulnerable adult who has been the victim of financial exploitation.