Medieval knights of St. John (Hospitallers), riding on a bay horses
The basic right of a person to dispose of his or her possessions at death (testamentary transfer) originated in ancient times. The ability for the deceased to then protect the transfer of those possessions against claims by the State or government, or against other creditors, also originated in legal traditions which began hundreds, or thousands, of years ago. North Carolinians benefit from both legal traditions. Our ability to direct our assets and cherished possessions that we collected while on earth to those we wish, may represent our last basic freedom exercised when we leave this world.
The ancient Greek biographer and essayist Plutarch (born approximately 46 AD), attributed the legal reform allowing a person to freely transfer his belongings at death to whomever he pleased, to the Athenian legalist Salon, born about 630 BC.[i] The ancient Romans later developed “fidei commissum” (meaning to commit something to one’s trust), a sophisticated system developed to leave property to one’s heirs after death (testamentary trusts.)[ii]
The English legal scholar William Blackstone explains that the law that developed in many societies gives a real property owner, who occupies a property, the right to peaceably transfer that real property at death, according to his wishes, to another chosen owner and occupier. Blackstone notes that this ordered transition of real property from one owner and occupier to another was necessary “for the peace of society,”[iii] and prevents “an infinite variety of strife and confusion.”[iv]
ORIGINS OF NORTH CAROLINA REAL PROPERTY ASSET PROTECTION LAW
The real property laws transferred to, and now used in North Carolina, were most recently developed several hundred years ago from the English feudal system. At that time, the king was the only absolute owner of land, with his lords subsequently holding land from the king. The practice of “wardship” provided that a lord would provide land to a male tenant (where the tenant could grow crops and raise livestock, marry, and raise a family.) In exchange, the tenant provided services such as military service, or “knight service”, to protect the lord and king.[v]
Originally, at the ward’s death, all land reverted to the lord, and the widowed wife and children could then become impoverished. The lords, and kings, eventually learned though that the wards would fight harder for them if the wards and their families were better treated, and thus began to allow the wards to keep the land within their families.[vi] Extended families or clans now developed on inherited lands, that would fight hard for the lord and king.
Because families could now keep their livestock and crops on land that they had a continued right to occupy, widows and children no longer became so impoverished upon the father’s death. More prosperous families meant that the lords and kings now had access to more wealth within their kingdoms which they could tax, in order to fund their extended wars and military campaigns.
Two types of concurrent real property possession developed in feudal England 600 years ago that provided additional financial protection to families. Both joint tenancy (land held by more than one person) and tenancy by the entirety (land held as one unit by husband and wife) landholders enjoyed the right of survivorship (the decedent’s land was automatically passed to survivors), and freedom from the estate creditors of the decedent.[vii]
Joint tenancy, and tenancy by the entirety real property ownership remains alive and well in modern North Carolina. North Carolina law adopts the English common law definitions of both joint tenancy and tenancy by the entirety real property ownership. Here, surviving joint landowners automatically inherit the real property ownership interest of a deceased joint landowner by operation of law, with the surviving joint landowners not legally responsible for any individual estate debts of the deceased joint landowner.
The 1960 North Carolina legal case Wilson County v. Wooten[viii], which held that the welfare departments of Durham and Wilson counties could not attach bank account assets transferred to a beneficiary via right of survivorship, likely protects all right of survivorship transfers (including joint with right of survivorship, or JTWROS, real estate transfers) not otherwise specifically available to estate creditors under NC statutes, from the decedent’s estate creditors.
Wilson County v. Wooten implies that the Executor or Personal Representative of the decedent’s estate (and the creditors of that estate) would have no claim to such transferred JTWROS real property. A more recent 1994 legal case, Miller v. Miller[ix], reconfirms that in North Carolina, JTWROS property is not part of a decedent property owner’s estate, and that the surviving JTWROS property owners take the entire property, free and clear of the claims of heirs or creditors of the deceased JTWROS property owner.
ORIGINS OF NORTH CAROLINA ASSET PROTECTION TRUST LAW
In medieval England, creditor protection additionally became available during the evolution of English trust law. English legal scholars borrowed from the much older Roman fidei commissum trust law, and developed ways to leave property in trust to heirs free from creditors.[x] That refined English trust law, brought to the United States’s original 13 colonies (including North Carolina) from England, was used by founding father Thomas Jefferson to establish an asset-protected testamentary trust for his daughter Martha Randolph. With this trust, Thomas Jefferson left assets to daughter Martha protected from the creditors of Thomas Jefferson’s indebted son-in-law Thomas M. Randolph.[xi]
All 50 states, including North Carolina, have now adopted and enforce English trust law providing various types of asset protection trusts which convey creditor protection to beneficiaries.
ORIGINS OF NORTH CAROLINA CORPORATE LAW PROVIDING ASSET PROTECTION TO BUSINESS INVESTORS
The idea of a “corporation” also developed in medieval Europe. The word “corporation” originates from the Latin corpus, which refers to a group or body of people. The original idea of a corporation, which evolved in medieval European business entities, provided that the corporation would allow a body of people to survive “in perpetuity,” and not be limited by the lives of any single stockholder.[xii]
The Catholic Church was one of the first European organizations that took advantage of a “perpetual existence.” As corporate law later developed in England, the concept of personal asset protection for investors, or stockholders, in risky businesses was first used in the 1600s by the Dutch East India Company. The Dutch East India Company, which issued what were likely the first stock certificates, played a major role in the Western exploration of the entire world.[xiii]
The ability of investors to invest in bold new corporate enterprises while keeping their personal assets safe, which spread from England, through Europe, to the United States (and North Carolina), was significantly responsible for the entire industrial revolution, and for much of the wealth and prosperity that many North Carolinians still enjoy today.
EXPANDED ASSET PROTECTION IN NORTH CAROLINA: BANKRUPTCY LAW, PROTECTED RETIREMENT ACCOUNTS, AND PROTECTED LIFE INSURANCE TRANSFERS
Asset protection ideas originating long ago have spread to other later creditor protection constructs protected by federal and/or North Carolina law. Our current President of the United States has personally benefitted from federal business bankruptcy laws (also available to North Carolina residents) many times, which provided his businesses with a fresh start. Federal ERISA law provides asset protection to funds held within North Carolina residents’ qualified retirement plans, such as IRA and 401K plans.[xiv]
The cash value of life insurance policies which name the insured person’s spouse or children as beneficiaries has long been protected against creditors in North Carolina, with this protection enshrined within the North Carolina Constitution. Life insurance payouts to these beneficiaries, following the insured person’s death, are protected against the insured person’s estate creditors also.[xv]
Most asset protection techniques now available to North Carolina citizens, and protected under federal and state law, have been many, many years in the making. By allowing more families to keep more of their assets, our economy continues to provide jobs and income, our people enjoy a healthier and more successful existence, and our government earns more tax dollars from its more prosperous citizenry, which it can better distribute to our less fortunate.
[i] Plutarch, Plutarchs Lives: Translated from the Original Greek, with Notes, Critical and Historical, and a life of Plutarach. New York: Derby & Jackson, 1859.
[ii] George Long, Fidei Commissum: A Dictionary of Greek and Roman Antiquities. John Murray, London, 1875.
[iii] William Blackstone, Commentaries on the Laws of England, Book 2, Chapter 2. Boston: Beacon Press, 1962.
[v] Peter M. Carrozzo, Tenancies in Antiquity: A Transformation of Concurrent Ownership for Modern Relationships, Marquette Law Review 85, Issue 2, Winter 2001.
[viii] Wilson County v. Wooten 251 N.C. 667, 111 S.E.2d 875 (1960).
[ix] Miller v. Miller 117 N.C. App. 71 (N.C. St. App. 1994).
[x] Jay Adkisson, A Short History of Asset Protection Trust Law, Forbes, January 26, 2015.
[xii] Wayne Patton, Very Old (And Good) Legal Tools, May 4, 2013, https://mwpatton.com/asset-protection-articles/very-old-asset-protection-mechanisms/.
[xiv] 29 U.S.C. § 18.
[xv] N.C. Gen. Stat. § 1C-1601(6); N.C. Const. art. X, § 5.
In the Jan 24, 2019 article “Scamming Grandma: Financial Abuse of Seniors Hits Record,” the Wall Street Journal states that U.S. banks reported a record 24,454 suspected cases of elder financial abuse to the Treasury Department last year, more than double the amount five years earlier. Although it is hard to obtain an exact figure because so much elder financial abuse goes unreported, the AARP frames elder financial abuse as a $40 billion to $50 billion problem within the U.S. Trusts can help.
The United States reports higher rates of elder financial abuse than other industrialized nations. In Europe, seniors’ retirement funds are mostly doled out to them gradually, in monthly payments from government or other pension funds, where they are used to pay monthly expenses. In the United States, because of insufficient monthly Social Security and pension payments, workers are encouraged to save a great deal of their retirement funds themselves, held in potentially large IRAs or other accounts which they control. In fact, according to the Wall Street Journal article and the American Bankers Association, people over 50 represent only one third of the population, but account for 61% of bank accounts, and 70% of bank deposits.
In the U.S., these large pots of money in the hands of seniors (who also exhibit higher rates of illness and cognitive decline) are irresistible to thieves–who can be local door to door scammers, local or long distance romance scam artists, household workers or care providers, nefarious family members, or international financial scam and con artists who reach seniors through telephones, computers, and cell phones. Recent scientific studies reported by the National Institutes of Health tell us that as brains age, they undergo physiological changes that diminish older people’s ability to identify threats and assess the trustworthiness of potential predators. Thieves, of course, discovered these weaknesses long ago.
An elder law or estate planning attorney can create a trust for a senior who is still competent, which figuratively creates a “vault” holding the seniors’ assets, and gives the vault key to a responsible family member or institution. Only this “trustee” can make financial transactions on the senior’s behalf. When predators, such as telephone scam artists, figure out that the senior does not have the key to the vault holding his or her assets, they often quickly lose interest in continuing the scam.
Trusts may also be set up much earlier in life, so that as long as the owner of the assets is mentally competent and not susceptible to predators, the asset owner can act as his or her own trustee and account manager. As the asset owner ages, a co-trustee may be added to help watch the accounts and help the account owner when needed. If the asset owner later becomes susceptible to financial abusers or is no longer mentally competent to manage assets, another responsible family member or an institutional corporate trustee may become sole trustee and manager of the senior’s accounts.
Because trusts may contain detailed, legally enforceable instructions for how a senior’s money is to be used, but financial or durable power of attorney documents typically do not, a trust may be a safer vehicle for managing a senior’s money than a power of attorney. In addition, trusts are more complex, and frequently put together in a lawyer’s office where the trustee can potentially be screened by the drafting attorney. A power of attorney document is often easily downloaded from the Internet, and used by a thief or dishonest family member very quickly, without an attorney’s involvement, to scam a senior.
As banks and financial institutions see higher rates of fraud with powers of attorney, and because trusts are often associated with more affluent clientele, a trustee managing a senior’s assets may be treated with more deference by financial institutions, and experience fewer hassles, than an agent on a power of attorney document.
An elder law or estate planning attorney can help a family determine if a trust is right for their needs.
CATEGORIES: Special Needs Law, Elder Law, Guardianship, Winston Salem, North Carolina, NC.
Researchers have found a surprising connection between intelligence and autism. On May 23, scientists announced the discovery of 40 new genes linked to human intelligence, and found that many people with the genes were also on the autism spectrum. The findings could one day help shed light on the condition’s origins.
Autism, more properly known as autism spectrum disorders (ASD) – includes Asperger’s syndrome. It has long been known that some sufferers have superior abilities in areas such as mathematics and science. The neurological condition affects four to five times as many males as females, believed to be around 1.5 percent of all children. Its exact cause remains unknown, and diagnosis requires many doctors specializing in a number of different disciplines.
The 40 new genes were discovered by researchers from the Centre for Neurogenomics and Cognitive Research in Amsterdam, based on a study of 78,000 people of European descent. Most of the newly discovered gene variants linked to elevated IQ play a role in regulating cell development in the brain. Computers have made it possible to scan and compare hundreds of thousands of genomes, matching tiny variations in DNA with diseases, body types, or in this case, native smarts.
Many of the genetic variations linked with high IQ also correlated with other attributes: more years spent in school, bigger head size in infancy, tallness, and even success in kicking the tobacco habit.
People with autism may require special care, and may need some type of government assistance during their lives, including Medicaid assistance. Medicaid and similar government programs may have strict asset or income limits. Thus any will or trust bequest left to an autistic person should be directed to a special needs trust (SNT), which will leave such needed government benefits intact.
National Academy of Elder Law Attorneys, (May 24, 2017).
Shiviali Best, Autism is Linked to Intelligence: People With “Smart Genes” are More Likely to Have the Disorder, London Daily Mail (May 23, 2017),
CATEGORIES: Elder Law, Elder Care Attorney, Senior Safety
The Spanish moss swayed almost unperceptively one warm morning above a coastal Carolina cemetery, where a recently widowed grandmother kneeled weeping by her husband’s headstone. Unexpectedly, a younger man approached and started comforting the woman, eventually gaining enough trust to type his telephone number into the grandmother’s cell phone, and assuring her that he would help her if she ever needed anything. Lonely and upset, the widow placed a call to the stranger before she arrived home.
Disgustingly, the above scenario was actually reported not long ago by a distraught daughter to the NC Attorney General’s office. As the reader may have guessed by now, the lurker in the graveyard was not a good Samaritan–instead, he was a “sweetheart” scammer faking love and compassion for the lonely widow in order to steal her assets. Such scams may take months to develop, as the scammer slowly gains the victim’s trust, and gains greater and greater access to her financial assets.
The NC Department of Justice, Attorney General’s Office reports that they heard from 20 NC sweetheart scam victims in 2015, reporting $3.4M in total losses. Recently, one North Carolina woman sent more than $40,000 to a sweetheart scammer she met through Facebook who claimed to be working out of state when his bank account was supposedly frozen. Another victim lost nearly $100,000 to two sweetheart scammers she met through Match.com, both whom claimed to be Americans working on construction projects in the Middle East.
In addition to the particularly odious graveyard incident reported above, attorney Caroline Farmer, Deputy Director of the Victims and Citizens Section of the NC Attorney General’s office, reports that sweetheart scammers frequently troll newspaper obituary sections, looking for suitable prospective widow or widower victims. Such victims are frequently not contacted until about six months after the death of their spouse, because, as Ms. Farmer reports, most of the family who initially comforts the widow or widower has left, and loneliness starts to peak at the six month point.
Such scammers are good at their craft, and convince the victim that they really care about and love them. In-person scammers may even develop a sexual relationship with the victim, in order to become more deeply emotionally intertwined with them. When a senior is targeted, usually by a younger con artist, it may be much easier for other family members to see the problem than the victim, who may argue with those trying to help.
Even though a person of almost any age can fall victim to a sweetheart scam, seniors are viewed by these criminals as more vulnerable. Because many seniors now use computers, most sweetheart scams are now either wholly or partially conducted online. Since seniors now frequent online dating sites, the NC Attorney General’s office reports that scammers create fake identities on sites like SeniorPeopleMeet, OurTime, ChristianMingle, Match.com, eHarmony, and Facebook to target lonely people.
Because of the threat of encountering sweetheart scammers online or in person, seniors seeking romance should remember the following guidelines:
- Watch for foreign visitors. Beware of any person who claims to be working abroad, or claims to be a wealthy citizen working abroad, or a person who wants to visit the United States–such “foreigners” are frequently scammers.
- Leaving the dating site. Watch for anyone who asks to leave a dating site and communicate personally by email.
- Meeting in person. Be careful when meeting someone you met online in person. Meet only in a public place, and better yet, bring a friend or meet with a group of friends.
- Don’t share your personal information. Don’t share any personal or financial information, including your address, phone numbers, account numbers or passwords, with anyone you meet online (or any new individual you meet in person), even if their story sounds convincing. Be suspicious if you’re asked to make online purchases or forward packages to an address outside of the country.
- Get some help. Let your friends and trusted family members help you assess any new person who wants to become a part of your life.
- Watch out for superlatives. Watch out for anyone who is consistently positive or upbeat about a new romance with you, or who quickly speaks in glowing terms about his unconditional love for you.
If either you, or someone you know, may have been targeted by a sweetheart scam, please report the matter to local law enforcement, or to the NC Attorney General’s office scam report line at 1-877-5-NO-SCAM, or online at ncdoj.gov. Because many victims are so emotionally upset and embarrassed after falling for a sweetheart scam, these crimes are greatly underreported. By reporting such crimes, you can help keep others from becoming victims of these predators.
THE SHEPHERD’S CENTER – ADVENTURES IN LEARNING SERIES
TOPIC: AVOIDING SENIOR SCAMS, FRAUD, AND FINANCIAL ABUSE
MODERATOR: VANCE PARKER, JD, MBA
October 25–Preventing Scams: The Role of Law Enforcement
Sergeant Charles Sayers, Forsyth County Sheriff’s Department
October 27–Finding Help: Low or No Cost Services for Older Adults
Becky Phelps, MSW, Senior Social Worker, NC Department of Health and Human Services, Adult Protective Services
Vera Guthrie, Certified Credit Counselor, Senior Financial Care, Financial Pathways of the Piedmont
November 1–Winning Against Elder Abuse: Successful Prosecution of Elder Crimes
Jessica Spencer, JD, Assistant District Attorney, Forsyth County District Attorney’s Office
November 3–Statewide Efforts Targeting Elder Financial Abuse
Caroline Farmer, JD, Deputy Director, North Carolina Attorney General’s Office, Victims and Citizen’s Services
Time and Location:
Programs start at 10:30 am and end at 11:45 am each day
Ardmore Baptist Church, Fellowship Hall
501 Miller Street
Winston-Salem, NC 27103
Registration for first time attendees is free. To register, contact the Shepherd’s Center at (336) 748-0217.
This article originally published in the Winston-Salem Journal
CATEGORIES: Elder Law, Elder Care Attorney, Senior Safety
Identity theft is scary. Charlie, a 72-year-old retiree, hears the first ring while heating up the spaghetti sauce for dinner. He thought about letting the phone go, but something about the ring telegraphed urgency.
The caller sounded excited, as he spoke in a Hispanic accent: “Congratulations! You have won the lottery!” “What lottery?” Charlie asks. The caller explained further: In order to improve its economy, Portugal, in 2011, established an international lottery, and you are one of the 2016 winners. “Congratulations Charlie, you have won $383,000.00!”
Charlie has not won much in his life, and has grown a bit tired of living on a fixed income. He is just the type of target that the swindler was hoping for–the type of mark willing to believe that big money might drop into his lap one day, just like that, money for nothing!
The Forsyth County Sheriff’s Department reports that the swindlers who conduct such telephone scams understand human nature, mostly targeting seniors who may have more difficulty recognizing predators, and who may be receptive to receiving a promise of money. Calls are intentionally made at busy times of day, such as dinner time, because it is easier for crooks to swindle people when they are distracted.
Such come-ons as the one above are like money in the bank for crooks–they set up “boiler rooms” with lots of experienced callers in both foreign countries and the U.S. Connecting with every few calls, their schemes work reliably and predictably, day in and day out. And, just like portrayed in the movie “The Sting,” the swindlers close up shop and move elsewhere every few days, which makes them incredibly hard for the authorities to catch.
As reported by the Forsyth County Sheriff’s Department, telephone scams such as the one above frequently lead to identity theft. The swindler’s call may continue like this:
The caller explains to Charlie that nothing will be required of him to receive his $383,000.00, except filling out a few forms. The caller asks for Charlie’s address, which Charlie gives him, so that Charlie can fill out a 7-page Acceptance Document which will be Federal Expressed to him. The caller promises Charlie that once he fills out the form and sends it back, his $383,000.00 will be on its way!
The next day, Charlie receives the 7-page document as promised. The document contains blanks for Charlie to fill in the following type of information:
- Charlie’s full name;
- Charlie’s wife’s full name, and her maiden name (if Charlie is married);
- The last 3 addresses where Charlie has lived;
- Information about Charlie’s current and previous automobiles, and where they were financed;
- Detailed name and contact information about Charlie and his wife’s physicians.
The cover letter accompanying the 7-page document that Charlie received explains that he will be receiving his $383,000.00 prize money via wire transfer, thus the Lottery Prize board will need Charlie to fill in the following information so that they can wire him the money:
- Charlie’s Social Security number;
- Charlie’s bank account numbers and accompanying passwords.
Of course, once Charlie returns the form, his and his wife’s identities have been stolen.
As an estate planning attorney, one of my jobs is to assist seniors and others with keeping their money, so they will have enough during life, and pass it down to their beneficiaries as they wish. It’s important for seniors and their caregivers to understand the risk of such telephone scams, because such telephone identity theft schemes are prevalent in the Piedmont Triad, and they keep working. A public educator for the Forsyth County Sheriff’s Department reports that when he warns seniors in his talks about the above identity theft telephone scam, he frequently meets Forsyth County seniors who have already become victims.
The Forsyth County Sheriff’s Department shares the following advice with seniors regarding telephone calls from strangers:
- Remember what Mama told you: Nobody ever gives you something for nothing;
- Never promise or agree to give money to anybody over the telephone;
- Never give out any personal information over the telephone;
- If a caller’s story seems too good to be true, it is not true;
- The best defense to a telephone scam is to hang up the telephone, quickly!
Click here to download a PDF of this article.
CATEGORIES: Elder Law, Elder Care Attorney, Senior Safety
It’s a fact that crooks and swindlers have known for years: Seniors are often easier targets for financial predators. Modern science and Neuroscience now tells us why.
A new neurological study from the Georgia Institute of Technology indicates that older people have weaker “clutter control” in their brains. Brain EEG studies indicate that the brain space where seniors go to recall memories becomes very cluttered over time, containing both relevant and irrelevant information. Seniors have more trouble than younger people with brain “clutter control,” or sorting out what is important in their brains from what is not important. This clutter leads to a loss of confidence about memories.
Cluttering of the brain, and the resulting loss of confidence about selecting the correct memories, is a significant reason why older people are more susceptible to manipulation by predators.
Other scientific studies reported by the National Institutes of Health tell us that as brains age, they undergo physiological changes that diminish older people’s ability to assess the trustworthiness of potential predators.
Older people are also more susceptible to dementias, such as Alzheimer’s disease, which impair judgment, making them more vulnerable to the predators who may either be strangers to them, or who can lurk within their own close network of family and caregivers.
This new scientific information should help inform professionals, policymakers, and families that senior vulnerability represents an inevitable scientific fact. Many of our seniors need aggressive, consistent, and effective help protecting them from the in-person, telephone, and computer crooks, swindlers, and predators who target them daily. Sadly, the crime of Elder Financial Abuse has grown to a multibillion dollar industry in our country, and will only grow worse without everyone’s focused action.
Neuroscience Explains Why Seniors are More Vulnerable to Predators
James T, Strunk J. Arndt J, Duarte A. Age-related deficits in selective attention during encoding increase demands on episodic reconstruction during context retrieval: An ERP study. Neuropsychologia. 2016 Jun: 86:66-79. doi: 10.1016/j.neuropsychologia.2016.04.009. Epub 2016 Apr. 16.
CATEGORIES: Elder Law, Elder Care Attorney, Senior Safety
As an attorney who frequently works with seniors in preparing wills and estate plans, I too often hear of cases in which my clients have been swindled in some way.
While spring brings out the welcome return of robins and daffodils, it also, unfortunately, brings out unwelcome human spring visitors. As the weather gets warmer, con artists targeting homeowners — particularly seniors — become more active, according to local law enforcement.The Forsyth County Sheriff’s Office warns that seniors and others should watch out for these top 5 con artists:
1. The fake tree trimmer: Law enforcement officials report that most legitimate tree services have enough work to make selling door-to-door unnecessary. Be particularly aware of someone purporting to be from a tree service who knocks at the door without any vehicle parked in front of your house. Or, if there is a pickup truck parked outside, beware if it does not have any tree service signage on it, or if it is not carrying any chain saws or tree equipment. Fake tree trimmers will frequently try to get part of the money for a tree job up front, then will run off with your money, never to be seen again. Or they will use the conversation with you to case both you and your house for later robbery.
2. The rancid meat seller: Believe it or not, one of the most successful cons is to sell meat from an ice chest door-to-door. After the purchase, the buyer will find out that the meat he purchased is rancid, and the seller is long gone.
3. The fake roof-repair guy: The fake roof repair con artist will knock at your door, then explain that there is something wrong with your roof that he will be happy to fix. He usually asks for some money up front, will crawl up on the roof, lie around for awhile, then get off and leave with your money. Or he will use the opportunity to case your house, which he will burglarize later.
4. The vacuum-cleaner salesman: This con is pretty old, but remains popular among con artists. Most of us over 50 can remember Lucille Ball selling vacuum cleaners on “I Love Lucy.” A vacuum cleaner salesman will come to your home, demonstrate a good working vacuum cleaner to you, then offer to sell you a model just like he is using if you will pay in advance. The con artist then leaves with your money, and you never receive that vacuum cleaner that you ordered.
5. Young children selling magazines: Have you ever seen those young children with ID cards around their necks knocking at your door selling magazines? They always have a compelling story about why they are selling the magazines, and the fact that they are kids makes seniors more likely to buy from them.
But the ID cards are usually fake (almost anyone with a computer can fake ID cards) and the stories are normally false as well. Law enforcement officials report that most of these children do not even live in our area — many are driven in from the Midwest in vans by crooked adults. Seniors and others who buy magazines from them find out later that their money is gone and that they will never receive those magazines.
Tips for protecting yourself from con artists:
Don’t open your door to strangers.
If you do open the door, do not leave it open or allow the stranger to look inside. A crook who knocks at your door is often using the occasion to evaluate your valuables inside so he can steal them later.
Do not tell a stranger at your door any personal information whatsoever. Crooks target older people because they are more vulnerable, so if you are a widow and tell a crooked stranger that you have lost your husband, that may lead the crook to see you as an easy target for a robbery.
Watch out for visitors between 5 p.m. and 7 p.m. This is a popular time for con artists, because they know that you are likely to be home and likely to be preparing dinner. If a crook can reach you when you are more distracted, it makes his job easier.
And finally, if you see con artists in your neighborhood, make sure that you call local law enforcement. It may take everyone working together to put a stop to these crooks.
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One Family’s Tragic Story
CATEGORIES: Elder Law, Elder Care Attorney, Senior Safety, Elder Financial Abuse, Estate Planning, Winston Salem, North Carolina, NC.
Katsu and Charles Bradley of Tacoma, Washington, owned their own home and enjoyed ample savings for their retirement. Later, when they could no longer live on their own because of advanced dementia, the family hired Norma Cheesman to be a live-in caregiver.
The Bradleys’ daughter, Caroline Moye of Seattle, reported that Cheesman “took everything” her parents had worked and saved for their entire lives. “In a matter of 10 months, she made my parents homeless and penniless.”
The prosecutor in King County, Washington, reported that Cheesman convinced 86-year-old Charles Bradley to give her power of attorney, name her as the beneficiary of his estate, disinherit his wife, and purchase the house Cheesman was living in for her. Cheesman also orchestrated a reverse mortgage on the Bradleys’ home and used that to fill the Bradleys’ bank accounts with several hundred thousand dollars in cash, which she stole. (Source: NBC News 2014)
The Crime of the 21st Century
Atlanta attorney Kristen M. Lewis names it “The Crime of the 21st Century.” And it has already earned its own acronym: Elder Financial Abuse (EFA). The money involved is enough to run a small country: estimated annual losses to U.S. older citizens run $2.9 billion annually.
As Ms. Lewis reports, one out of every six adults over age 65 has been a victim of EFA, with women twice as likely as men to be victims. Financial exploitation accounts for up to 50 percent of all forms of elder abuse, and is the third most frequent type of elder abuse following neglect and emotional or psychological abuse.
The elderly are vulnerable to this crime for many reasons. Alzheimer’s disease and other dementias that impair judgment increase significantly with age. The National Institutes of Health has determined that increasing age causes physiological changes to the brain that diminish older people’s ability to assess the trustworthiness of potential predators. Because localized multi-generational families are no longer common in our mobile American society, elders are becoming socially isolated, with almost one-third of non-institutionalized elders living alone. Unfortunately, this means that there are fewer people in an elder’s life who can reliably detect EFA.
According to Ms. Lewis, perpetrators of EFA include:
- Both strangers and people that the elder knows;
- family, friends, and neighbors;
- in-home caregivers;
- people acting as agents under powers of attorney or as guardians or conservators;
- business, professional, and financial service providers.
Ms. Lewis notes that in their estate planning work with elders, attorneys must guard against one of the most insidious forms of EFA—financial abuse from people that the elder knows personally, or from people within the elder’s own family. Elders report financial abuse from strangers much more often than financial abuse by people they know, because of the shame that an elder commonly feels when he or she is victimized by someone familiar. In addition, the elder may not report EFA from a family member because she does not want her family member to go to jail or face public embarrassment. She may believe that admitting she is vulnerable will result in being placed in a nursing home.
Estate Planning Approaches to Combat EFA
According to Ms. Lewis, preventative “legal” approaches that address the problem of EFA within estates include 1) using more than one agent, or co-agents, in the durable power of attorney for property document designed to take care of an incapacitated elder client’s business and legal affairs; 2) requiring annual accountings of estate financial records; 3) placing most of the elder’s assets in a Revocable Living Trust (RLT) and having the trustee that takes care of the medical and personal needs of the client also control the funds within the living trust; 4) utilizing a detached, non-family, third party trustee, such as a trustee from a bank, to serve as the RLT trustee. This trustee may also serve with another professional co-trustee, such as an attorney with duties to act in the best interests of the client.
Although any of the legal approaches that Ms. Lewis outlines may be important, attorneys must not overlook a more fundamental approach to preventing EFA, related to requiring annual estate accountings but more expansive.
Borrowing From the Corporate Sector: Incorporating Financial Transparency Into the Elder’s Private Estate
Abusers of all types, including financial abusers, are like vampires— they cannot survive the light of day. Our free market corporate financial system has understood this for a long time. The business term “financial transparency,” according to the Securities and Exchange Commission (SEC) definition, “means timely, meaningful and reliable disclosures about a company’s financial performance.” It is a crucial requirement for informed investment in companies. It is also necessary for exposing, and therefore preventing, fraud and other forms of corruption.
The alert estate planning attorney does not always have to reinvent the wheel when developing effective techniques to guard against EFA. Borrowing from tested concepts fundamental to our financial system, estate planning attorneys should strive to develop greater financial transparency in their elder clients’ private estates to help guard against EFA. In the case of private estates, greater financial transparency will not result from disclosure of financial records to the public, but will instead result from periodic disclosure to, and monitoring of the records by, a CPA firm, disclosure to the elder’s estate planning attorney, and disclosure to appropriate stakeholders within the family who may be pre-selected by the elder client.
Estate planning attorneys understand that the most effective tools needed to assist their clients are not always legal tools. In helping elder clients, the estate planning attorney should strongly consider working with the client’s CPA firm (or helping the client to find an appropriate CPA firm) to ensure that a fundamental, appropriate filing and bookkeeping system is installed or maintained in the client’s home, or where the elder’s financial records are kept. This is an essential first step to bringing financial transparency, and its ability to prevent theft of assets, to the elder client’s private estate. But fortunately, installing a more professional recordkeeping, filing, and bookkeeping system in an elder’s home need not be difficult.
As communication and computer technologies have progressed, more professionals are working flexibly out of home offices and are willing to visit clients where they live. As a result, professionals such as secretaries, bookkeepers, and even CPAs who are willing to help reliably manage and maintain home finances on site are available for reasonable fees.
A typical arrangement would include a lower-cost secretary or bookkeeper (with a solid résumé and good references) helping the elder get his financial records and files in order, then setting up the accounting on a computer accounting program such as QuickBooks ®. The information keyed into the accounting program can be shared with a CPA firm at a pre-set interval, such as monthly or quarterly, where an off-site accountant or CPA looks over the figures and makes any accounting adjustments necessary.
Professionals and families should not avoid this approach, thinking that it is too expensive. The secretary or clerical worker needed to manage files and input data often costs less monthly than the expense of a housekeeper. Accounting firms can typically deal efficiently with QuickBooks data from home accounts, and keeping the records and accounting accurate on an ongoing basis may make year-end accounting and tax preparation much simpler and less expensive.
In this way, getting unbiased outside third parties into the elder’s home to keep the books, monitored by a CPA who must follow a strict code of ethics and who is trained to spot financial irregularities, can provide a strong deterrent to the type of financial crimes plaguing elders. Having this type of oversight is like installing an alarm system in a home—most criminals, when confronted with the signage and warnings of an alarm system, will look for easier pickings. Likewise, it is only a more hardened—and rarer—criminal that would risk taking funds from an elder’s estate that is being tracked by a bookkeeper and monitored by a CPA.
An attorney who desires even greater financial oversight of his client’s estate may utilize other existing financial tools. For mid-size or larger estates, the attorney may require in the estate documents that a CPA perform a reasonably priced annual “compilation,” where the CPA prepares financial statements from the client’s financial records to help ensure financial transparency. For larger estates, an attorney could draft into the estate documents a requirement that a CPA firm prepare annual “reviewed” financial statements which require greater CPA inquiry into the client’s accounts and records, but which also may cost significantly more. Annual audits may not be needed except in very large or complex estates, as they may come with a significant price tag.
Any annual financial reports required by the estate planning documents should be evaluated by other professionals in addition to those at the CPA firm, such as the estate planning attorney, any involved outside trust officers, and key stakeholders within the family pre-selected by the client. With all of these trained or interested eyes watching the elder’s estate, opportunities for EFA may be significantly limited.
Ongoing professional maintenance of the estate may even convey additional benefits. Sarah Chisholm, a Texas CPA and corporate chief financial officer with both public company audit experience and private estate experience, states, “Ongoing maintenance of a private estate’s accounts by an unbiased licensed professional such as a CPA or estate attorney allows for an accurate valuation and location of all of the estate’s assets during the estate’s existence, and at the time of estate settlement.”
Attorneys who work with elders should recognize that a holistic approach may meet their clients’ needs best. In addition to drafting appropriate estate planning documents, estate planning attorneys should recognize that theirs is a “peace of mind” profession which may require additional client support after the documents are drafted. Estate planning attorneys are in an excellent position to work with other professional colleagues such as CPAs to ensure that their elder clients will not become victims of EFA. Elders should select an estate planning attorney who will employ a broad level of understanding to meet their needs.
Please contact us with any questions and to learn how we can help with your estate planning in Winston-Salem, North Carolina.
Kristen Lewis, The Crime of the 21st Century: Elder Financial Abuse, American Bar Association Probate & Property Magazine. Vol 28, No. 04. July-August 2014
Financial Abuse Costs Elderly Billions, NBC News (2014), http://www.nbcnews.com/id/41992299/ns/business-consumer_news/t/financialabuse-costs-elderly-billions/#.VBhufEhjDAY
Telephone Interview With Sarah Chisholm, Chief Financial Officer, Kolkhorst Petroleum Company (September 15, 2014)