Many people think elder law is a stand-alone set of laws that pertain only to probate. Not true. Elder financial abuse cases often cross over into other areas of the law in interesting ways.
Below are some examples of matters successfully handled by Elder Law Center attorneys.[1]?These cases illustrate the various and subtle ways that financial elder abuse manifests itself and why it is so important that attorneys from all practice areas be aware of the many forms it takes.[2]
The Bait and Switch
Jill Smith is a 70-year-old single woman. One of her most prized possessions is her older model Mercedes. Ms. Smith took her Mercedes into ABC Mechanic (?ABC?) for an oil change. She advised the owner that she would be back the next day to get the car. The next day, the owner seemed rather chatty, but Ms. Smith concluded it must be a part of ABC?s warm and friendly customer service. Upon leaving, Ms. Smith realized the bill seemed a bit expensive, but she decided it was the price she had to pay for owning a luxury car. She also thought that maybe she requested ABC to perform additional work that she forgot about.
Approximately one month later, and in an effort to try something new, Ms. Smith took her car to a different mechanic. When she arrived at XYZ Mechanic (?XYZ?), a young gentleman walked up with a big smile and stated, ?I remember your car.? Assuming he was mistaken, Ms. Smith responded that he must be confusing her car with someone else?s. The young man was adamant that he knew he worked on her car in the past. They walked into the office and he showed her a work order for service on her car. It appeared that when Ms. Smith took her car to ABC for an oil change, they brought it to XYZ to have the work done. XYZ charged ABC $84.00 for the service.
Afterward, Ms. Smith went home to check her records. She had paid ABC approximately $500 for the oil change and it did not appear that any additional work was done. ABC?s owner refused to refund Ms. Smith any money and denied any wrongdoing.
Ms. Smith retained the services of the Elder Law Center. The Elder Law Center attorney determined the owner of ABC had recently lost his license and was not authorized to perform mechanic services. The attorney contacted the California Bureau of Automotive Repair, which conducted its own investigation. ABC was in violation of various legal business practices. It is not uncommon for people who engage in financial elder abuse to utilize flattery and create the impression of a positive relationship to put the victim at ease and then create just enough confusion about the bill that they do not feel comfortable questioning these ?nice people.? The Elder Law Center helped Ms. Smith with a legal action, where she prevailed. Afterward, the owner of ABC immediately paid Ms. Smith.
The Gym Membership
Barbara Jones is a 70-year-old married woman battling cancer. A few months before her diagnosis, Ms. Jones believed that she was not feeling well because she was not getting enough exercise. One day, she decided to visit the local gym. The sales representative, John, advised her that she would greatly benefit from the gym?s new membership promotion program. He further stated that exercise would be the best medicine for what ailed her. Enticed by all of the benefits and convinced that John was right about her need for exercise, Ms. Jones signed up for a 12-month membership for an annual fee of $1,500, which was to be deducted monthly. This membership fee also included meeting with a personal trainer three times a month.
When Ms. Jones went to her first personal training session, the trainer terminated the session half an hour early. During the second and third sessions, the trainer never even showed up.
After her health began to further deteriorate, Ms. Jones went back to the doctor who noticed a substantial weight loss and advised that she should?immediately?stop going to the gym. Upon contacting the gym about her medical issues, the representative advised her to have the doctor write a letter to the corporate office and assured her that ?everything would be okay.?
Ms. Jones? doctor submitted a letter to the gym stating that Ms. Jones could no longer exercise due to her medical condition. Ms. Jones followed up with the gym and requested that they immediately stop taking money from her account and to cancel the contract.
The next month, not only was the gym?s monthly payment taken from her account, but she received an invoice from the gym in the amount of $750 for prematurely terminating her membership. Upon calling the gym, they advised Ms. Jones that she was in breach of the contract if she?didn?t?pay the termination fee. They further advised her that the gym may sue her for the money if she failed to pay.
While this kind of unsavory business practice is certainly not confined to the elderly, they are particularly vulnerable to it, particularly when they are in ill health, because they frequently do not have the resources to fight against it properly. Luckily, Ms. Jones retained the services of the Elder Law Center. Upon learning she was represented, the gym immediately refunded Ms. Jones money and mailed her a zero-balance invoice.
Telemarketers
A married couple Jim and Karen Brown, who are both in their 80s, rent an apartment in Contra Costa County. Upon answering the phone one day, Mr. Brown was offered the ?best deal retirement could offer.? The telemarketer advised Mr. Brown that he and his wife were invited to move into a beautiful retirement community in a neighboring county. After the telemarketer described all of the luxuries the community provided, the Browns traveled approximately one hour to visit.
The staff greeted the Browns warmly and took them on a two-hour tour of the community. Afterward, everyone sat down to review the cost of living in the community. The representative of the community repeatedly urged the Browns to move into one of their furnished units for at least one month. It was represented to be a free trial offer. The representative said that all the Browns had to do was pick up some personal belongings and come back. Mr. Brown was resistant at first, but as the conversation prolonged, he agreed it was worth the free trial. However, he advised the representative that they could not move into the unit for another couple of months as he had some business to finish in Contra Costa County. The representative advised Mr. Brown that they would hold the furnished unit for him. To do so, all he had to do was initial and sign some agreements.
Nearing the sixth hour of the appointment, Mr. Brown relied on the verbal promises of the agent and began signing and initialing where and when he was told. He was repeatedly assured he was signing up for the free trial offer.
For the next few weeks the Browns received calls from the retirement community asking when they were coming to move in. Approximately two months later, Mr. and Mrs. Brown moved into the furnished unit with a few of their clothes and needed belongings. Believing it to be their free trial period, the Browns quickly determined that although the community was beautiful, it did not meet their needs. Ten days into their trial period, they returned the keys to the management office, gathered their minimal belongings and moved back to Contra Costa County.
The following month, they received a bill from the retirement community in the amount of $8,000. The retirement community had billed for the two months it took the Browns to move in and for terminating the lease. The free trial was for 30 days, but only if the tenants remained in the unit for the entire duration of the one-year lease.
The Browns eventually retained the Elder Law Center. The Elder Law Center attorney identified the legal issues with the formation of the contract and was able to obtain a zero-balance invoice for the Browns. It is important to note that not only did the Browns receive the hard sell and were given complex documents that they were pressured into signing without reading and without legal advice (and which were fraudulently represented to boot), but also to identify why this worked. One of the reasons they were susceptible to this type of practice is that the perpetrators obviously understood that many times, elderly people do not have the ability to concentrate on complex documents for hours at a time. The representative dragged the appointment out for six hours, after walking them all around the community and having them sit through their promotional presentation. When it should have been clear that the victims were not able to properly consider the materials and contracts in front of them, the representative should have backed off and allowed them some time to consider the contracts properly.
As you can see, financial elder abuse takes many forms and sometimes looks exactly like shady business practices that would occur against anyone, of any age. From the viewpoint of an attorney, it is important to keep in mind that when they occur against elders, which California defines as aged 65 years or older, there are enhanced remedies that are available, including attorney?s fees and punitive damages (see Welfare and Institutions Code Section 15657.5). To learn more about California?s elder abuse statutes, or for leisurely reading, see Welfare and Institutions Code? Section 15600 et. seq.
Although the amount in controversy for these disputes is nominal to some people, the end results are invaluable to the clients. Elder Law Center clients are extremely grateful for their ability to access justice within our community. Seeing the proud expressions on their faces when they tell people they have an attorney or when they are advised that the matter has settled in their favor is a reward in and of itself.
For more information or to donate either your time or funds to help keep its programs running for the benefit of our community please visit our website: www.thelawcenter.cc/the-elder-law-center.
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Samantha Sepehr, Former Director of the Elder Law Center,?is Of Counsel to Steele, George, Schofield, and Ramos LLP and also solo practitioner in Walnut Creek.
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[1]?The Elder Law Center provides pro bono representation to low-income seniors, age 65 and older, who reside in Contra Costa County and who have been the victim of a financial abuse or fraud.
[2]?All names have been changed to protect the identity of the parties.
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Source: http://cclawyer.cccba.org/2013/02/the-many-faces-of-financial-elder-abuse/
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