In this case study, excellent work by an estate planner and others stopped an elder abuser. The names below are changed.

The Facts
This case study is about Sarah, aged 85. Sarah had lived with her boyfriend, Ron, for 15 years when this case arose. Ron had no assets. Sarah owned her home free and clear in a posh part of Marin, and she had a seven-figure investment account at her bank. She had developed severe cognitive impairment, and an inability to manage on her own finances over those 15 years. Ron took ruthless advantage of her impairment. When he tried to manipulate her to withdraw $30,000 from her bank, he got caught and the bank reported him to APS and froze the account. APS did not do anything to stop the abuse, but Ron did not get the money. Sarah had one son, Jackson, and he was informed of the attempt Ron had made. Jackson was our client.

When a client has an impaired elder with financial issues, we often ask to see the family trust when the elder seems incapable of managing money. We focus on the incapacity clauses, and what options the drafting attorney built in. We see that many lawyers still use what we consider to be an outdated, dangerous drafting limitation: the “two doctor” rule. That is the only option in some trusts to determine incapacity. In theory, it is supposed to protect the elder from being unjustly removed as trustee. But in reality, many elders refuse to see a doctor for one evaluation, much less two.

Financial elder abuse can go on unchecked because named successor trustees can’t get the elder removed as trustee, even in the midst of clear financial exploitation. The elder won’t resign. The “two doctor” clause stops the successor trustee and aids the elder abuser. The predator has free rein. In this case, Ron was ripping off and neglecting Sarah as much as he wanted.

But Sarah’s lawyer was smart enough to understand the limitations of that two-doctor rule. She had added another protection, one novel and potentially life-saving. Her trust said that if Sarah was improperly held by anyone for a period of thirty days, the successor trustee declaring same, could assume the role of trustee.

Sarah needed to be evaluated for her cognitive impairment at Kaiser, her provider. If she did not get two doctors’ evaluations, she would remain the sole trustee indefinitely. Ron could stop her easily and for as long as he wanted. Jackson knew that. He was her healthcare agent, in touch with Kaiser. He learned that Ron repeatedly had Sarah cancel all her Kaiser appointments. We guided Jackson on how to get the appointment rescheduled and he did.

Estate Planning Excellence
The added legal protection about incapacity in Sarah’s trust came into play at this point. Sarah had indeed been unlawfully held in her home by Ron for more than 30 days. The estate planning attorney obtained the declaration from Jackson attesting to that fact. That triggered Jackson being able to assume the role of successor trustee. He then took his certification to the bank. With pressure from Sarah’s attorney and from us, the bank finally granted Jackson access to the account.

Meanwhile, Sarah still needed to see her doctor for evaluation and a diagnosis, to formalize her care planning. We had Jackson inform Ron in writing that he was coming to pick up his mom to take her to the doctor on the appointment day. All knew that Ron would likely try to stop it again. So, we planned ahead with law enforcement to have an officer accompany Jackson to Sarah’s home on the appointment day. Geriatric psychologist, Dr. Mikol Davis, from also was present, in case of volatile emotional issues.

The day arrived. The officer and Dr. Davis went to the front door while Jackson waited nearby. The officer knocked, announced who he was and asked Ron to open the door. Ron ignored the request. Dr. Davis offered coaching to the officer. They then went around to the back door where they could see Sarah, sitting in her pajamas. They knocked and asked her to open the door. Finally, she did, and the officer told her, with Ron present, that her son was there to take her to the doctor. Ron attempted to pressure Sarah that she didn’t have to go and urged her to refuse. The officer told Ron that he would put Sarah in an ambulance and take her if Ron kept interfering. Finally, Sarah got dressed and went along. She was happy seeing Jackson at the front door. They went to Sarah’s appointment, she was examined, a dementia diagnosis made, and follow up appointments were set.

The Elder Abuser
The next question was what to do with Ron. He had previously threatened Jackson with a gun if Jackson tried to visit his mother. Ron was clearly abusing and neglecting Sarah in many ways.
I worked with local counsel in obtaining witness declarations to support an Elder Abuse Restraining Order. The Motion was granted and Ron moved out, taking his guns with him. Ron never appeared in court and the restraining order was made permanent.
In the end, Jackson got the house cleaned up, and he moved in with Sarah to help take care of her. At last report, all were doing well.
1. If you do estate planning, learn from this case. The “two-doctor rule” as a sole means of determining incapacity is dangerous. Smart additions and alternatives exist.
2. If you have a will and trust, check it. Amend as needed, so that you and your family will not be trapped by that sole, inadequate clause.
3. Restraining orders against abusers can end their manipulation of a vulnerable elder. It may take a team effort.
4. The team of a wise, involved estate planning attorney, consulting counsel, elder psychologist, and litigation counsel solved this problem for a dependent adult being abused in our own county.