Published in the Union Leader (8/29/2016)
Q: I am concerned that my sister may be financially exploiting our elderly mother. What can I do?
A: Sadly, your situation is not unique. Much of my practice involves helping families step in to protect a parent from exploitation or to try to get the parent’s money and property back after it’s been taken by an exploiter.
So long as she is capacitated and is free from undue influence, your mom has the right to do what she wants with her property, including to favor one child over another. It’s only when a person loses the ability to manage her affairs that the law provides a remedy to a concerned family member.
The process of decline for an elderly person may be gradual and at times may be difficult to discern. An elderly person might seem fine in the morning and confused in the evening.
Some family members may see nothing wrong and others may see significant decline.
The signs of incapacity can include confusion, trouble managing financial and other affairs, neglect of hygiene, and emotional and psychological changes.
Often financial exploitation begins innocently enough as expense reimbursements or modest gifts. These modest beginnings in time can sometimes lead to extravagant exploitation.
If you think your mother may be incapacitated and might be at risk for exploitation, you should act now rather than wait and discover that there is nothing left years later when she passes or needs funds for her medical care. So, what can you do?
First, if you have reason to believe that your mother is incapacitated and has been subjected to abuse, neglect, exploitation or self-neglect, the law requires you to make a report immediately to the Bureau of Elderly & Adult Services (BEAS), which can be reached at (800) 949-0470.
Second, you can ask the Probate Court to find that your mother does not have the capacity to manage her affairs and to appoint a guardian to make decisions for her. To ensure that your mother’s rights are protected, there will be a trial in which her inability to manage her affairs and the need for a guardian will have to be proved beyond a reasonable doubt.
Finally, you should consider asking your sister whether she has been given a power of attorney by your mother and, if so, ask her to provide an accounting of her actions in that capacity.
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.