The story is far too common. A parent is near the end of his or her life, ill and vulnerable, and a person, often a child, takes advantage of the parent financially.
A Son Takes Advantage of His Ailing Father
In the case of Bayes v. Cornon, in the Second District Court, Senior was diagnosed with lymphoma in 2011. Shortly thereafter, Senior consulted his attorney and had a number of estate planning documents drawn up, including a Living Trust and Financial Power of attorney. The trust was drafted so that four of the five children would share in the Trust proceeds after his death. Senior appointed his son, Junior, as Successor Trustee and Financial Power of Attorney.
Junior, going through significant financial problems, obtained $20,000 from his father. Then, once Senior was in hospice and being cared for in Junior’s home, Senior changed beneficiary designations on his bank accounts to name Junior as beneficiary and had checks issued to Junior in the amount of approximately $180,000. During the time that these transactions were made, Senior’s health was in major decline and his competence was questionable.
After Senior’s death, Junior’s siblings observed him buying expensive things beyond his means, prompting them to file a concealment action in probate court. The Court found that there was evidence of lack of capacity and undue influence. Junior was found guilty of concealing, embezzling, conveying away and being in possession of money belonging to Senior’s estate and ordered to return the money to the estate with interest.
In the appellate court, Junior attempted to challenge the jurisdiction of the Probate Court, asserting that a concealment action is not appropriate where money is taken during life and before an estate is established. However, the Court denied Junior’s challenge and found that jurisdiction is appropriate where an inter vivos gift (a gift made during life) was improper and the property of the estate (by virtue of the fact that the donor is now dead). In other words, if A took money from B during B’s lifetime, then the probate court has jurisdiction under a concealment action to have the money returned to the estate of B after B’s death.
Concealment Actions Available in Guardianship as Well
A concealment action would have application in guardianship actions as well. If A takes money improperly from B and then a guardianship is established for B due to B’s incapacity, the guardian could seek to have the money returned to B per a concealment action in probate court. Often the elderly victim does not want to pursue an action against a family member or loved one even when it means that the theft has left the victim without money or benefits he needs to survive. In such situations, a guardianship and concealment action may be the only means of securing the elderly victim’s well being.
Know Your Options
As the elderly and disabled are often victims of theft and undue influence, it is important for concerned friends and family to know the legal remedies available. For more information, contact a Cleveland elder law lawyer.