The Probate Court (or other state court with jurisdiction over alleged incapacitated adults) generally has the power to order numerous actions and remedies for elder financial abuse, each of which typically has its own procedural and evidentiary requirements.
The appointment of a limited or full conservator for the elder, with court-supervised responsibility for managing the elder’s assets, is typically ordered as a “defensive” protective measure. During the pendency of a conservatorship proceeding, which can be a time-consuming proposition, consideration should be given to obtaining one or more of the following temporary remedies.
(1) Temporary restraining order to prevent irreparable harm to the elder and her assets.
(2) Preliminary injunction to preserve the elder’s assets while the conservatorship action is pending, coupled with court-ordered disbursements for the elder’s benefit during the pendency of the action.
(3) Recordation of a lis pendens (Latin for “litigation pending”) in the deed records of any county in which the elder owns real property, putting third parties on notice of possible claims against, or title issues with respect to, the elder’s real estate assets.
Practitioners have reported a disturbing recent trend of filing “offensive” or “attack” conservatorship proceedings. See Vivian L. Thoreen and Dana G. Fitzsimons, Jr., Elder Financial Abuse: Protecting the Aging Client from the Den of Thieves, 46th Annual Heckerling Institute on Estate Planning, Jan. 2012. Cited examples include “[a] child, alienated from an elderly affluent parent and likely to be disinherited, seeks control of the parent’s assets to frustrate the parent’s estate plan by draining its assets. Another example is the child, angry about being excluded from the parent’s lifetime giving, seeking to block generosity to other family members or charities, or to compel “gifts” to himself against the will of the parent. In even more distasteful circumstances, the child may seek to restrict the parent’s lavish lifestyle or to limit expensive care so as to preserve a future inheritance.” Id.
Another disturbing offensive tactic that has emerged in recent years is that of “granny snatching” (i.e. removing an elder from her home state to another jurisdiction for the sole purpose of filing a guardianship or conservatorship proceeding there based on the elder’s physical presence in that jurisdiction). This tactic has been curtailed in recent years as the vast majority of states have enacted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (“UAGPPJA”) in some form, promulgated in 2007.
Notably absent from the list of 38 states and the District of Columbia that have enacted, or recently introduced legislation to enact (Massachusetts, Mississippi and New York), the UAGPPJA are several southern states, including Georgia, Florida, Louisiana, North Carolina and Texas. (The other non-adopters are California, Kansas, Michigan, New Hampshire, and Wisconsin.)
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Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.