LEGAL REMEDIES TO PROTECT SENIORS

FROM UNDUE INFLUENCE AND

FINANCIAL EXPLOITATION

Presented by:

Kathryn C. Casey

Dutton & Casey, P.C.

DEFINITIONS

RISK FACTORS

CHARACTERISTICS OF PERPETRATORS

PSYCHOLOGICAL METHODS

Definition of Undue Influence

In the Elder Abuse Context:

Undue influence occurs when one person (an abuser)

uses his role and power to exploit the trust,

dependency, and fear of another. The abuser uses his

or her power and influence to deceptively gain

control over the decision making of the other person

effectively replacing the will and decisions of the

victim with the will of the abuser. Undue influence is a

characteristic of a relationship where the abuser

gains financial benefits by influencing the victim.

Definition of Undue Influence

In the Legal Context:

A transaction or gift benefitting a person acting in a

fiduciary relationship with the donor/party to the

transaction is presumed to be the result of undue

influence and is therefore presumptively fraudulent.

The presumption of undue influence can be overcome

only by clear and convincing evidence.

Requires: a fiduciary relationship AND a gift or

transaction OR fraud or coercion

Definition of Financial Exploitation

In a civil context:

Breach of Fiduciary Duty - A transaction or gift

benefitting a person acting in a fiduciary relationship

with the donor/ party to the transaction is presumed

to be a breach of fiduciary duty and the burden

shifts to the fiduciary to prove that the transaction

was fair and reasonable, that he exercised prudent

and reasonable care and judgment, and that he

exercised undivided loyalty.

Requires: a fiduciary relationship AND a breach of

duty AND damages

Definition of Financial Exploitation

In a criminal context:

A person commits the offense of financial exploitation

of an elderly person or a person with a disability

when he or she stands in a position of trust or

confidence with the elderly person or a person with a

disability and he or she knowingly and by deception

or intimidation obtains control over the property of an

elderly person or a person with a disability or

illegally uses the assets or resources of an elderly

person or a person with a disability.

Definition of Financial Exploitation

In a criminal context continued:

The illegal use of the assets or resources of an elderly

person or a person with a disability includes, but is

not limited to, the misappropriation of those assets or

resources by undue influence, breach of a fiduciary

relationship, fraud, deception, extortion, or use of the

assets or resources contrary to law.

Identifying Clients at Risk

Advanced age (over 75)

Female

Unmarried/widowed/divorced

Organic brain damage

Cognitive impairment

Physical, mental or emotional dysfunction

Recent loss of spouse or divorce

Living with abuser

Dependence on abuser

Living alone

Social isolation

Estranged from children

Financially independent with no designated financial caretakers

Middle or upper income bracket

Taking multiple meds

Frailty

Fear of change of living situation (e.g. transfer from home to institution)

Implied promise by perpetrator to care for elderly person if funds or material goods are transferred

Characteristics of Perpetrators

Sociopathic or antisocial character disorder

Caregiver role

Living with victim

Being economically dependent on victim

History of mental illness or substance abuse

Often related to victim

Male

Characteristics of Perpetrators

Note: Not infrequently there are business persons who

exploit the impaired elderly by selling inappropriate

products such as annuities with long periods of

withdrawal penalties, stocks, bonds, home improvements.

Characteristics of Perpetrators

Types of Fiduciary Relationships:

In Law (agent to principal or doctor to patient); or

In Fact – some factors to consider:

the degree of kinship of the parties;

the disparity in age, health, and mental condition;

the disparity in education and business experience between

the parties;

the extent to which the allegedly subservient party entrusted

the handling of her business affairs to the other; and

the extent to which the subservient party reposed faith and

confidence in the alleged fiduciary.

Psychological Methods

Margaret Singer Model of Undue Influence

Creating isolation

Fostering a seige mentality

Inducing dependence

Promoting a sense of powerlessness

Manipulating existing fears or instilling new ones to

create or enhance vulnerability

Keeping the victim unaware and uninformed of the

creation of this pseudoworld

Psychological Methods

Bennett Blum Model

Dependence on Perpetrator - this may be physical

or emotional dependence

Isolation

Emotional manipulation of the victim

Gaining control of the victim’s money or property

LEGAL REMEDIES TO PROTECT SENIORS

Access Orders

Freeze Orders

Elder Abuse and Neglect Act

Access Orders

Who is Entitled to Access?

Any public or nonprofit agency appointed by the Area

Agency on Aging (with prior DOA approval) to receive

and assess reports of alleged or suspected abuse,

neglect, self-neglect or financial exploitation under the

Elder Abuse and Neglect Act.

Access to Whom?

Eligible adults (person 60 years of age or older who

resides in a domestic living situation)

Reported or found to be victims of abuse, neglect,

self-neglect, or financial exploitation.

Access for What Purpose?

Conducting a face-to-face assessment with the alleged victim of abuse;

Assessing other needs of the alleged victim;

Providing services to the victim of such alleged abuse, neglect, and/or financial exploitation in accordance with the Illinois Elder Abuse and Neglect Act

When is an Access Order Necessary?

a caregiver or third party has interfered with the

assessment or service plan, OR

the agency has reason to believe that the eligible adult

is denying access because of coercion, extortion, or

justifiable fear of future abuse, neglect, or financial

exploitation.

Freeze Orders

Who may Petition for Freeze Order?

Office of the Attorney General

Department on Aging

Provider Agency

Freeze Order

Requires:

Substantiated financial exploitation

Documented reasonable belief that the victim will

be irreparably harmed

Freeze Order

The Order shall:

“prohibit the sale, gifting, transfer, or wasting of the

assets owned by or vested in the victim without the

express permission of the court.”

Order for Accounting

Court Intervention in POAS

Illinois Power of Attorney Act

Duty of Agent to Account

Agent shall provide record of all receipts,

disbursements and significant actions when asked by:

Principal, guardian or another fiduciary

Provider agency

Office of State Long Term Care Ombudsman

Office of Inspector General

A court

Duty of Agent to Account

POA Act was amended on July 1, 2011 and no

longer requires a physician’s report signed within 90

days finding the victim lacks decision making capacity

before an accounting can be requested from the

agent.

Failure to Account

If the agent fails to provide his or her record of all

receipts, disbursements, and significant actions within

21 days after a request under paragraph (b), the court

may be petitioned for an order requiring the agent to

produce his or her record.

Failure to Account

If the court finds that the agent's failure to provide his

or her record in a timely manner was without good

cause, the court may assess reasonable costs and

attorney's fees against the agent, and order such other

relief as is appropriate.

Order Revoking Agency

Upon petition by any interested person:

Finding that principal lacks control to direct or revoke

agency; and

Agent is not acting for benefit of principal; or

Action or inaction caused or threatens to cause

substantial harm to principal

The court may revoke the agency

Order of Protection

Domestic Violence Act

Order of Protection

A petition for an order of protection may be filed only:

(i) by a person who has been abused by a family or

household member or by any person on behalf of a

minor child or an adult who has been abused by a family

or household member and who, because of age, health,

disability, or inaccessibility, cannot file the petition, or

(ii) (ii) by any person on behalf of a high-risk adult with

disabilities who has been abused, neglected, or

exploited by a family or household member.

Guardianships

Citations to Recover Assets

Probate Act

Standards of Capacity

In Illinois, a presumption exists that persons of a

mature age are sane and have the mental capacity to

contract.

As long as the party in question can understand the

nature of the transaction and protect his or her

interests, the court will find him or her mentally

competent and validate the transaction

Capacity to contract is the mental ability to

appreciate the nature of one's actions

Powers of Attorney are contracts

Standard of Incapacity for Guardianship

A court will appoint a guardian when:

1. A person is disabled due to mental deterioration, physical incapacity or development disability; and,

2. That person is totally incapable of making and/or communicating decisions regarding his personal or financial affairs due to his disability; and,

3. Guardianship is necessary to promote the well-being of the disabled person and/or to protect him from neglect, exploitation, or abuse

Guardianship Procedures

1. Filing Petition for Appointment of Guardian

2. Service of Summons

3. Appointment of Guardian ad Litem

4. Obtaining necessary Physician’s Report (In Cook

County, CCP 211)

5. Notice to spouse, children, siblings and agents under

power of attorney

Remedies in Guardianship

Temporary Guardian of the Estate

All orders under the EANA, POAA, and DVA

Plenary Guardian of the Estate

Citation Actions to recover misappropriated funds

Incapacity

Undue Influence, Coercion or Duress

Breach of Fiduciary Duty

Fraud

Conversion

Undue Influence

Breach of Fiduciary Duty

Imposition of Constructive Trusts

Damages

Equitable Remedies

Punitive Damages

The Illinois Supreme Court held that punitive damages

are allowable where the wrong involves some

violation of a duty arising from the relationship of

trust and confidence.

The Appellate Court held that punitive damages are

appropriate to punish and deter conduct where the

defendant is guilty of an intentional breach of

fiduciary duty.

Treble Damages

A person who is charged by information or indictment with

the offense of financial exploitation of an elderly person or

person with a disability and who fails or refuses to return

the victim's property within 60 days following a written

demand from the victim or the victim's legal representative

shall be liable to the victim or to the estate of the victim in

damages of treble the amount of the value of the property

obtained, plus reasonable attorney fees and court costs.

The burden of proof that the defendant unlawfully

obtained the victim's property shall be by a preponderance

of the evidence. This subsection shall be operative whether

or not the defendant has been convicted of the offense.

THANK YOU

100 W. Monroe, Suite 810

(312)899-0950 www.duttonelderlaw.com

www.duttonelderlaw.com

Locations : Attorneys: 100 W Monroe Street, Suite 810 Janna Dutton

Chicago, IL 60603 Kathryn C. Casey

Phone: 312-899-0950 Melissa Howitt

Lara A. Duda

9933 N. Lawler Rd., Suite 440

Skokie, IL 60077

Phone: 847-261-4708

1665 N. Arlington Hts Road Client Care Coordinator:

Suite 306 West Erin C. Vogt, LCSW, ACSW, CCM

Arlington Heights, IL 60004

Phone: 847-906-3584