What do you do when you suspect that an elderly person is no longer able to manage his or her financial affairs, or worse, is the victim of financial abuse or exploitation?
In a recent case, I assisted the loving daughter of an elderly gentleman, who was a widowed Veteran, and who was suffering from debilitating and increasing dementia, which impacted his ability to make appropriate financial decisions.
In 2017, the father’s physician recognized that the 80-year old was no longer physically capable of safely operating a motor vehicle, as a result of which, the physician properly notified the Colorado Division of Motor Vehicles, which in turn, cancelled the father’s driving privileges. Such cancellation is a precaution allowed under Colorado law. As a result of the cancellation of his driving privileges, the father became dependent on others for his transportation, including a neighbor.
Unfortunately, the father then made several, unnecessary large cash withdrawals from his bank account, of $11,000, $10,000, $7,000 and more, which withdrawals were not applied to any known debt and which were discovered by his daughter, who, up to that point, had been helping her father under a Financial and Healthcare Power of Attorney, and was therefore receiving duplicate copies of the monthly bank statements.
The daughter then asked: “Dad, why are you taking out these large cash withdrawals from your bank account, when I set up most of your bills for automatic payment?”. The father finally admitted that he had hidden some of the cash in coffee cans in the basement and in other areas around his home and yard, some of which amounts were found by the daughter and re-deposited; however, other large cash amounts could not be located and the father had no recollection of the withdrawals or what he had done with the rest of the money.
With the assistance of his daughter, the elderly gentleman was able to live at his home, where the daughter arranged for caregivers during the day. One day, while a caregiver was assisting the father, the neighbor who previously helped with driving the father, came over to the house, crying and begging for money, asking the father for $8,000. At that time, the caregiver properly reported the incident, which was investigated by the police and Adult Protective Services in the County. After investigation, the Field Officer was of the opinion that the incident was exploitation of an elderly, at-risk adult, under applicable Colorado law.
The daughter was understandably concerned that her father would continue to be the subject of improper, unlawful pressure from the neighbor or others, for the payment of money, contrary to the father’s best interest. Therefore, given the father’s advanced age and the declining mental capacity to act in his own best interest, I was able to assist the daughter to become the Court-appointed Guardian and Conservator for her father, so that she was legally authorized to arrange for his appropriate care, to preserve his assets and make payments for his financial needs, in his best interest, with the protection of the Court.
In this case, although the daughter had been fully involved in her father’s care and financial affairs under Power of Attorney documents, those documents were ineffective in preventing the financial exploitation of the father, as he was still able to make withdrawals from his accounts, although this was contrary to his own best interest. Under these circumstances, the better option was for the appointment of a Conservator by the Court, which, in this case, was the daughter who had previously been acting under the father’s Financial and Healthcare Power of Attorney.
Under Colorado law, once a Court appoints a Conservator, all financial powers of attorney, whether signed prior to or following the entry of the Order, are terminated. The Conservator is then authorized to close the Protected Person’s bank accounts and merge the funds into an appropriate Conservatorship account. Then, under the Court’s supervision, the Conservator is the sole signer on the Conservatorship account, to protect and preserve the Protected Person’s assets and to make payments under a Court-approved Financial Plan, in the Protected Person’s best interest, to avoid financial exploitation.
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