Elder is 87, adult child of elder is 51. This is not your typical elder financial abuse case. The adult child is question is a ‘tenant-at-will’ occupying a store front of a commercial building in which the elder owns. The elder has owned this building for many decades without any mortgage and never had issues until this adult child became an occupant/tenant 10 years ago, or I should say, basically a squatter.
Once the adult child moved in, they decided never to pay their rent, I suspect they figured the elder would not seek legal remedy; they were partly right until now.
For the last 10 years the elder (who counted on this rent as part of their income) has been making up the massive loss (now at $286k YES you read this correctly) by cashing in an IRA, depleting their savings, and is now finally cash broke… leaving no choice but to seek relief from the court by having the adult child evicted.
Since this falls under business contract law; after being served with a notice to quit, the adult child knowing the eviction would be swift, decided to hire an attorney and attempt to have the elder parent declared incompetent in probate court (simply efforts to stave off the eviction with an ex-parte on the elders properties (including their home) so the elder cannot evict any tenants or sell either property) this sham in probate has been going on for the last 6 months. It’s not going well for the adult child since the first informal hearing, the judge’s opinion was ‘the elder parent’ was competent and in a second hearing the judge was presented with an medical affidavit stating the elder was fully competent from their treating physician of 40 years, plus the elder took a competency test, passing with flying colors.
It's very obvious the judge had the adult child number as soon as they entered the court room but still has to allow the plaintiff to go forward, per rules of evidence? And give them every avenue to hang himself.
The adult child is still pushing for trial since this will allow them to remain in the premises as long as possible, as we can’t get a trial date until January 2012.
There’s allot more to this story, all of it; in favor of the elder. Apparently greed holds no bounds with the adult child.
MY QUESTION: surely this is some type of egregious elder financial abuse? If so, what does this fall under? I can’t seem to find any citations or similar type cases.
Thank you
Elder financial exploitation
Massachusetts General Laws Chapter 19A, Section 14A describes financial exploitation as:
an act or omission by another person, which causes a substantial monetary or property loss to an elderly person, or causes a substantial monetary or property gain to the other person, which gain would otherwise benefit the elderly person but for the act or omission of such other person; provided, however, that such an act or omission shall not be construed as financial exploitation if the elderly person has knowingly consented to such act or omission unless such consent is a consequence of misrepresentation, undue influence, coercion or threat of force by such other person . . .
Hard to say how this might apply to a situation that, even with your lengthy question, I know relatively little about. I wonder if anyone reported this situation as elder abuse to the state. It's also hard to say where the child is going with her claims of incompetence on the part of the elder. If the parent is incompetent, that seems to make the child's acts even more egregious. Thankfully, it sounds like the elder is represented by an attorney.
Thanks so much for the reply.
Thanks so much for the reply. I'm snooping around to help out the elder since the elder is competent. Yes, the elder is represented by an attorney which is needlessly costing the elder even more money for defense of untruths.
The child’s direction or goal is to remain in the premises non-paying of course, and take over (should I say take away) the property of the elder.
The elder knew once the child received notice, that the child would try something, so 3 months prior; the elder cleverly changed his properties to irrevocable, unrecorded trusts. Pretty lucid for someone who’s supposed to be incompetent?
So the time line follows:
Elder changes everything including will, insurance policy and trusts, then 3 months later
Elder has attorney draft notice to quit and sent, then 6 weeks later
Elder is served as child is trying to have elder deemed incompetent
Pretrial is next week, elder wants trail and wishes to kick some butt.
Elder abuse
Pretty sad situation, all around. Glad the elder is in good hands (and seems to be able to make good decisions). Good luck.
I thought I would post an
I thought I would post an update on this situation. Since I last posted; pretrial, and depositions have been completed. A Status Hearing is this coming week. The elder did great; of course that’s easy when you’re telling the TRUTH…
HOWEVER the adult child didn’t fare so well as a matter of fact it was the most incriminating deposition I’ve ever read, laced with at least one perjury per page (the elder has proof of every lie and perjury which the adult child told) 147 pages of lies (I wrote all the questions (50 pages) for the attorney to hurl at the adult child)
Also, while I was assisting the elder at his residence and going through all the elders’ records, and many the adult child left behind (big mistake) I knew by doing this I would find something incrimination; I uncovered many years forgery and income tax evasion committed by the adult child. (Records, checks and tax returns) Oh, was I ecstatic, as was the elder!
Then I discussed with the elder that possibly a neuropsychological exam by an expert might be a good idea since it’s the highest authority on testamentary capacity in a case such as this, the elder agreed.
The elder sailed through the testing wonderfully and the doctor’s affidavit targets the adult child as a criminal and clearly states the elder has FULL testamentary capacity. This new affidavit was just laid on the adult child and his attorney 2 days ago. I imagine they aren’t too happy!
During the pretrial the judge had recommended thinking of ‘the conciliation board’, this will not happen. The elder’s stance is; the adult child’s thefts are over, not one more dime and the elder will not conciliate or bargain with his competency, the elder is competent and that’s it. Trial is already scheduled to take place in 4 months.
Financial abuse
Thanks for the update. I hope things work out.