Sadly, there are many cases where older adults do not (or cannot) realize they are ensconced in a scam. If you believe your family member is in that situation, there are a few avenues you can explore.
First, contact the person’s financial planner or estate attorney (if they have one). Victims may be more likely to listen to advice from their planner, attorney, or financial advisor than from a family member, especially if they have worked together for many years. These professionals may also help in reporting the crime and helping with tax issues that result from the fraud.
As a last effort to combat continued victimization, a conservatorship over the estate may be necessary. A conservatorship over the estate reassigns control over a victim’s finances. A conservator is appointed by a judge for the benefit of someone who has become incapacitated. A judge is the only authority who can make the determination that an older or other vulnerable adult ,or “conservatee,” is no longer competent to handle his/her financial affairs. (Note that some states use the term “adult guardianship” in reference to conservatorships.)
Courts have broad discretion when determining who should be appointed as a conservator. Although they generally choose a spouse, adult child, or other close family member to serve in this important capacity, the choice still belongs to the court. A court-appointed conservator of the estate manages the client’s finances, locates and takes control of the assets, collects income due, pays bills, invests the client’s money, and protects the assets. An independent professional, such as an attorney or accountant, may instead be appointed, depending on the circumstances.
Advantages of conservatorship:
- Court supervision over the conservator is required to make vitally important decisions, which provides for greater protection for the conservatee.
- A legal conservatorship provides protection against breaches of fiduciary duty or mismanagement of funds. Some states require conservators to file an inventory listing all the conservatee’s property with the court. The conservator must then continue to provide the court with accounts that reflect all transactions involving the conservatee’s assets.
Disadvantages of conservatorship:
- The costs can be upward of $1500, depending on complexity and if a bond is needed.
- The time required for processing a conservatorship petition is typically between 2-3 months, though emergency or ‘temporary’ conservatorships may be considered in dire situations that require an expedited process.
- A conservatorship usually does not end until the conservatee dies. The conservator may be in charge of the conservatee’s financial affairs for a very long time (or at least until the court determines the conservatorship is no longer necessary).
- Conservatorship proceedings are a matter of public record, which means the assets of the conservatee may also be made public.
Note: A declaration of capacity may not be necessary in situations when circumstances show that the proposed conservatee cannot manage his or her finances or is a victim of undue influence.
We would like to acknowledge the Los Angeles Scam Working Group and Bet Tzedek, whose research informed this article.