Elder abuse, injury and neglect in nursing homes and interference with inheritance. For better or for worse, our family relations are becoming more complex. Divorces split families. Remarriages sometimes compound separation. Kids become alienated. New priorities prevail. People live longer, whether or not mental capacity keeps pace with physical endurance. In this environment, people plan estates. And plan their retirement residency. With careful planning, wills, trusts, lifetime transfers or 401(k) or life insurance beneficiary designations control what happens to our property when we pass on. With careful financial planning and nursing home selection and family oversight, seniors can live long happy lives.
The law reflects society’s goal to assure that people’s choices are honored. To do that the law recognizes that influences come to bear on peoples’ decisions. Persons with dementia, without the ability to recognize their loved ones or the extent of their holdings cannot by law make binding dispositions of their estates. But many people are clearly competent, but nevertheless, make estate planning decisions which are not necessarily the product of their own free will. Or cannot advocate for themselves while confined to a nursing home leading to injuries and neglect.
Experts who understand the thoughts and needs of seniors recognize people can act subject to the influence of those around them. Many seniors are dependent on care givers whose power to cause changes to an estate plan to favor them can be significant. Those caregivers could be hired help, a neighbor or friend, or even a new spouse after the death of a person’s longtime mate. The law considers that power to influence a person’s estate planning choices by prescribing some legal rules in an attempt to uphold peoples’ estate plans which are a product of free will and set aside estate plans which are not. The law also gives seniors rights to pursue damages for elder abuse or neglect causing physical or emotional harms.
As boomers age, the frequency of will contests or trust contests may increase. A common scenario is the disinheritance of children of a first marriage when dad or mom remarries after a spouse’s death. Dad may have set out to share his estate with his own children but plans can go awry, sometimes because of the undue influence of the new spouse whose goal may be to benefit her children from a prior marriage, not her step children who were perceived as resenting her from the beginning. Sometimes the new spouse should be the beneficiary. Society will honor dad’s choice to leave his estate to whomever he wishes, so long as the choice was a product of his own free will, unfettered by dementia rendering him incompetent or by the undue influence of a third party taking advantage of him.
Challenges to an estate plan typically occur in what’s called a declaratory judgment proceeding before a judge who decides whether a particular trust or will is truly the product of the person’s free will or is the result of dementia. Or the undue influence from the new spouse, or caregiver, or close business associate or advisor. Because direct evidence of undue influence over a person’s estate planning decision may be impossible to identify because the influencer will not want her behavior uncovered, the court will look at a number of factors which suggest influence and sometimes shift the burden of proof to the alleged influencer.
Persons intentionally interfering with an inheritance can also be held liable for money damages by those disinherited. Nursing homes or care providers can be held liable for damages for harms caused to elders. Those cases can be determined by a jury under specific instructions as to what they must find in order to award damages. Persons injured in a nursing home by neglect or failing to supervise staff need strong advocacy.