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Senior woman and caregiverAs our population ages, more of our seniors are moving into assisted living facilities.  The number of such facilities has nearly tripled over the past two decades, with construction of memory care units the fastest-growing segment of senior care.  Half of assisted living residents are age 85 and older, and over 40 percent have some form of dementia.

In “How Not to Grow Old in America,” an article by Geeta Anand in the New York Times last year, the author discusses caring for her parents, notes the above trends, and argues that if assisted living “is to be a long-term solution for seniors who need substantial care, then it needs serious reform, including requirements for higher staffing levels and substantial training.”  She cites examples of deaths and injuries that have befallen seniors at assisted living facilities in California and elsewhere.

While Ms. Anand’s focus is on the physical care of seniors in assisted living, the transition from a home environment to an assisted living environment also can lead to serious financial elder abuse.

Seniors moving into assisted living often relocate many miles to be closer to a particular family member.  Such relocation may uproot seniors from existing relationships with local family, friends, neighbors, professional advisors and social groups, leaving seniors more vulnerable to financial exploitation.

For example, Mom’s longtime estate planning attorney and/or accountant may become too distant to work with her.  An abuser may connect Mom with a new professional who will find it harder to detect undue influence.  If Mom told her estate planner in confidence five years ago that she wanted to treat all her kids equally and did not want Susie to be her successor trustee, a new attorney may not be wary when Susie brings Mom in to sign documents so that Susie can take over as trustee.

Staff members at assisted living facilities develop close relationships with residents that are generally very positive.  However, such relationships can result in exploitation as when a staff member may share a financial tale of woe with a resident or connect a scam artist with a resident.  Such staff/resident interactions are difficult to monitor and even more so with staff turnover when supervision is thin.

Staff also may have broad access to the units of residents such that theft of cash and other valuables can be a risk.  Consider that seniors may have a lifetime habit of paying in cash and may have difficulty tracking how much cash they have on hand and when it has gone missing.  Seniors also may leave the doors to their units unlocked.

Of course, the risks of financial exploitation associated with in-home caregivers may be higher than those with caregivers at assisted living facilities.  In-home caregivers typically have sweeping access to seniors and may have no significant oversight.  Such caregivers may have criminal backgrounds that are not detected as they are hired without a background check.  And, as we have noted previously, families who directly hire in-home caregivers risk tax and employment claims, such that an accusation of financial abuse by a caregiver may be met with an expensive wage and hour claim.

While assisted living facilities no doubt can do more to protect their residents from financial elder abuse, family members should not be lulled into a false sense of security.  Spa-like facilities, myriad activities and extensive menus, as Ms. Anand notes, are wonderful attributes that attract seniors and help family members feel that Mom or Dad are better off in the facility than they would be remaining at home.

The move into a facility also has an upside of economic simplification.  Seniors who struggle to pay bills on time (and may feel uncomfortable with autopay arrangements) generally will receive one all-inclusive bill from the facility that family members can help review.

Instead of tuning out of the financial details of a parent who has moved into a facility, children should remain tuned in to help protect their parent’s financial security.  The same vigilance that Ms. Anand encourages with respect to the physical care of assisted living residents should be applied to their economic well-being so that they retain the resources they will need to support themselves as their needs and expenses increase.

See our prior post for general suggestions on what to do when an elder has been the victim of financial elder abuse.

Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.

Photo of Jeffrey S. Galvin Jeffrey S. Galvin

Jeff Galvin is a partner at Downey Brand LLP. He represents clients in trust and estate litigation, and related civil disputes, in the Greater Sacramento area and across Northern California. He is also licensed to practice in Nevada. Many of Jeff’s clients have…

Jeff Galvin is a partner at Downey Brand LLP. He represents clients in trust and estate litigation, and related civil disputes, in the Greater Sacramento area and across Northern California. He is also licensed to practice in Nevada. Many of Jeff’s clients have no prior experience with litigation and he works to identify and pursue the results that matter most to them.

Jeff advises trustees, administrators and executors who find themselves in conflict with beneficiaries. He helps beneficiaries assert their rights in trust and probate estates. He often litigates cases involving claims of breach of fiduciary duty in which a beneficiary seeks to remove and/or surcharge a trustee, administrator or executor. He prosecutes and defends trust contests and will contests, which typically raise issues of mental capacity, undue influence and elder financial abuse. For example, he successfully defended a trust contest in a 25-day trial in Calaveras County and then defended the judgment on appeal. Jeff also has filed conservatorship actions to stop financial elder abuse.

Jeff is a graduate of UCLA School of Law. He is a member of the Executive Committee of the Trusts and Estates Section of the California Lawyers Association and serves as a host on the Section’s “Trust Me!” podcast.

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