I need help guiding my family, specifically my Grandma whose sister recently passed.
Current Situation: Grandma’s Sister passed away within the past 10 days. APS has started an investigation against her caregiver. Aunt was diagnosed with Dementia and other ailments 2 years ago. Caregiver of 2 years had new POA drafted removing my Grandma. A new Will drafted and we believe attempting to remove any family as beneficiaries and placing herself on the Will. Caregiver added herself to Aunt's banking accounts. Aunt is co-signer on a car for caregivers grandson. Credit cards opened in Aunts name that she would not have used. American Eagle, Express other retailers. The fraud goes on.
My Grandma, next of kin, is dealing with this who is 97. As well minded and able as my Grandma is for her age she is not dealing with this well.
The goals:
1. Caregiver held accountable for wrong doings and Fraud.
2. Estate properly distributed as my Aunt's original Will suggested.
3. My Grandma to not have to take on this burden for a length of time or at all.
1. Wrong doings and Fraud. APS is doing an investigation. What Authority do they have to prosecute the caregiver if claims are substantiated. Both Criminal and Financial? Can APS revert all Financial findings and reinstate an original Will or other financial changes? From my understanding they will only pursue criminal charges which will not affect Will or Financial statuses. We will still be responsible to pursue litigation to have the proper outcome. Is that correct?
2. We have no access to the new Will that was created. I see our second goal being blocked until the APS investigation has concluded. Are there any actions we can do that might accelerate this goal of returning all assets to family then following through with Aunt's wishes?
3. Can we take any actions to switch the responsibility to another family member or conservator to see out Aunt's wishes after investigation or findings?
We appreciate any advice or guidance here. I’m sure I’ve missed something or haven’t thought every option so if not listed please let me know.
Thank you,
JW
How did APS become involved? Did family suspect fraud or financial abuse?
Personally if this were my family I would retain an attorney.
The "problem" I see is there might not be much that the caregiver can repay in the way of restitution. I think unless it is a felony it probably will not result in the caregiver spending much time in jail.
Did the caregiver wok privately or work for an agency? Was a background check done. (and the problem with many background checks is if there has been NO conviction it will not show up on a check.)
GardenArtist, who often posts here, worked in legal work, and often suggest that a GROUP of attorneys in practice together can be best to consult in muddy cases like this that transcend one kind of law, tipping into another. So I would go to a group of attorneys in practice together, because this is going to transcend inheritance law into criminal law. You don't want a lowball attorney who has to spend hours in reseach, which is no savings to you.
The will will have to be filed in probate, so keep checking if it is published yet, or have your attorney so. Given what might already have been absconded with, there may be little left to even recover.
You really need an attorney's advice ASAP. And keep in good touch with APS. The money already taken is likely long gone, and you are unlikely to get "blood out of a turnip" as my Mom used to say. But there needs to be a freeze on the filing of probate by this new criminal "executor" and that is attorney work for certain that must be done at once.
This is a great place for help, but you don't come to a Forum for advice on a cancer treatment, and you don't for criminal law, either. We might do worse than to have NO advice; we could just give BAD advice, which is worse.
I am so dreadfully sorry that this has happened. I surely do hope that you will get some help. But this may be/is complicated. People have a right to leave their money to whomever they choose, and it is going to have to be proven that Aunt didn't WANT to leave her money to this caregiver. It will have to be proven she was in no way competent to make these decisions. So there will need to be proof that Aunt wasn't of sound mind when she made the changes. I do know of a person who left an entire home to a caregiver, a friend of my parents. In fact a duplex so she would be "safe for all her life with a place to live and a place to rent out for income". I know of another with polio as a child and the use basically of one arm all his life, who ALSO left everything he had to a caregiver, including the home he lived in and a home next door she lived in; this caregiver made it possible for him to live all his life without entering care. He had family but they didn't care for him, weren't there for him, so he left his money to his caregiver.
I sure wish you good luck and I hope you will update us. I think that your grandmother is going to need help with this. This much anxiety at 97? I myself might just walk away, because quite honestly, what will anything recovered benefit your grandmother at this point? I am glad you are on the case with her. You are really well spoken, and will be an enormous help.
1. Fraud charges.
a. Jurisdiction: APS: I don't know if APS has the authority to charge someone, but in my brief experience, I don't think their staff has the insight or legal knowledge. What I would anticipate is an "investigation" (such as it is with APS) then referral to law enforcement.
I think the issue also would be whether or not APS has "standing" (a legal term) to pursue a fraud case on behalf of someone, given that APS has no actual interest and would not have suffered or sustained any loss. It's the family and heirs who have sustained a loss.
IF APS wants to be appointed as a "Next Friend" & be involved with a suit, I would be hesitant but would raise the issue with your attorney.
Personally, I have limited experience with fraud in my legal career. Fortunately, the firms I worked for rarely handled white collar crime. I do recall from reading legal sources that actual fraud can be hard to prove, perhaps because of the "intent" factor. (I'll skip that for now though).
One firm did create what's known as a Chinese Wall, by which only the attorney and his/her paralegal and/or secretary have access to the file and documentation. This was to protect the client, but also I believe b/c of the heinous nature of the crime. And, of course, the more people who are aware of the situation, the less likely it is to remain secret and private, which in this situation was for the benefit of the accused.
You might inquire of that when you contact law firms; you certainly don't want the family's concerns to be shared with any others than those working on the case.
b. Law firms: you might be able to find an EP firm that also handles fraud, recognizing that it would be data gathering and support to (a) provide to law enforcement and (b) rectify the changes required to restore the compromised legal documentation by the fraudster. There may also be another charge addressing the financial and personal harm to the heirs. I've never been involved with this kind of charge though.
An option could be a white collar EP law firm which works with an EP firm which has criminal experience on an "of counsel" basis. The two coordinate their mutual specialties.
c. You could search online for both categories, trending toward white collar law firms. Criminal firms in my experience focus on defense, and may not have the EP experience. Look for large law firms; they're more likely to have staff to deal with criminal EP issues.
One search method is to search online for articles written by law firms on EP fraud. I haven't read bar journals in awhile, but guess that there may be fraud specific journals, or ones that include white collar criminal articles. The caregiver's activities extend beyond that, but the basic issues of fraud would apply.
d. Charges and proofs
My understanding from law firms and legal research is that an element of fraud is "intent." I.e., the caregiver would have to be shown to have intent to steal data and co-opt it for her own use. That removes any "accidental" misuse. I believe that proving intent is one of the challenging factors.
E.g., the caregiver could claim that she was acting on behalf of your Great Aunt, and at her bequest. How could this be proven or disproven? What were your GA's physical and mental status at the time?
Another factor is whether or not the police could prove intent from similar activities in the past. Has this been explored? There have been posts here about elder folks being the victims of serial "caregivers" who had behaved in this manner before.
Has any research been done on this woman's activities? You'd probably need a subpoena duces tecum to get access to this kind of documentation. That would be something an attorney should handle.
good point.
OP, i'm also a lawyer.
OP -- one thing that is very much in your favor is this:
you OP wrote:
"Aunt is co-signer on a car for caregivers grandson. Credit cards opened in Aunts name that she would not have used. American Eagle, Express other retailers."
this strongly indicates intent to commit fraud.
--parents don't normally even give their adult child the possibility to open credit cards in their names! one could run up any bill, any debt!...let alone giving that opportunity to a non-family member.
--yes, sometimes out of gratitude, exceptionally, an elderly person might give away their house to the caregiver, but NOT unlimited credit cards.
--also co-signing for a car. again, parents don't normally even do that for their adult child, let alone non-family member, let alone the caregiver's grandson!
How and by whom was the caregiver hired? An agency? If so, they should be notified ASAP if that hasn't already been done.
Through an online advertisement? Contact the host and report that their site was used by someone to eventually commit fraud.
As GM1954 wrote, a conviction may not result in jail time, but you can undercut her sources to reach out to other vulnerable adults.
Your questions, cont'd.
2. Knowledge of fraud. I'm curious. W/o access to the fraudulent will, how did you learn about this? I'm not challenging your statements, just trying to find situations that could lead to the results you want.
I wouldn't rely on the APS investigation to produce results of fraud. As written, I don't have that much confidence in their ability, especially to analyze and conclude that fraud was committed, assuming that's their conclusion.
Right now you could and should be locating an attorney. He/she could subpoena copies of the documents from the caregiver, who would be in default of a court order if she refused to provide those copies.
I think getting an attorney involved will accelerate all of your goals.
3. Pursuing litigation. I think this is a good possibility, unless the woman is convicted. But I do think a court order has to entered to rescind the fraudulent documents, as well as notify all interested parties. That would include creditors, card holders, etc.
There's another possibility to get documents back, and prevent the fraudster from engaging in further activity: An order issued by a judge, a Temporary Restraining Order, which could prevent the fraudster from a lot of activities, including leaving town. This should be prepared by an attorney; it's not a DIY job.
You might also consider requesting a PPO for all family members; this would restrain the fraudster from contacting or harassing you, by phone, e-mail, snail mail, and would also prevent her from entering your GA's property.
4. Switching responsibility to family. I think that until it's been established through a police investigation or court order that fraud has been committed, changing any of the EP documents should be held in abeyance. It might cause confusion on the part of the parties outside of the family, i.e., a funeral home, cemetery, real estate agent, etc. might be concerned about the apparent overlap of authority, and I would think wouldn't want to be involved until that authority is clarified.
I think I would contact all entities who might be involved though and let them know that your GA's final wishes may be delayed while the end of life documents are litigated, due to fraud.
I probably missed something, so please feel free to ask if you have questions.
Are you for hire 😂😉
the information you gave is amazing.
one question I have is what is "EP firm" I tried Google and all I get is Estate Planning.
Thank you.
you said the will hasn't entered probate yet. maybe because there isn't much left, so there's no point for the caregiver to do that?...she already took all she could take? such people act fast, steal fast.
regarding POA, it's sometimes called "a licence to steal". most POA documents give unlimited power - but of course, the POA agent is supposed to act in the interests of the principal. if your great-Aunt had mental capacity when she signed the new POA...then she took the risk of that decision...
it'll be hard to prove she was pressured to sign the new POA. after signing the new POA, your great-Aunt even went to the bank with the caregiver and added the caregiver's name to her accounts: this means the bank didn't find it fishy and went ahead.
i hope your lawyers can help!
We have found out our Aunt was diagnosed with Dementia prior to the new Will and POA. We are hoping that gives us some grounds to contest.
I don't know if this is still a practice, but at one time "not responsible for other's actions" notices were posted in legal newspapers. The individual affirmed that he/she was not responsible for any actions not taken by her/him.
Even though your great aunt can't do that, I think the PR or Testatrix of the Estate could do that, on behalf of the Estate.
So what to do?? imo your family needs probate attorney who does litigation. Not all probate attys do litigation either. Most do straightforward filings….. enter will, request hearing date for Letters Testamentary, work w/heirs to determine assets, do Notice to Creditors, distribution of assets, then file closure if required. All done via online portal by attorneys bar card. Your families situation not this.
what your atty will likely do is go to court to challenge caregiver from being named Executor & from getting Letters Testamentary & file for an order to have new “will” invalid, AND, that docket for Auntie estate as a dependent administration w/ outside court appointed executor. Not the grifters atty, not your atty but an independent one. All this will have costs…. But as Auntie ostensibly has assets, they can be sold & used to pay eventually. BUT You will need to pay the initial retainer…. I’d guesstimate at least a 10K retainer.
As there will be competing sides……. your atty will have to be on top of this w/solid details as to Great Aunts intent. APS report can be used to support this, so you do want the report. CC use & irregular banking all used against grifters claims. Atty monitoring docket is nice but to me not proactive enough, atty has to be ready to file challenges to any orders / asset transfer grifters present to the court. Like if grifter moves to pay off her kids car from Auntie's estate account. Fwiw You on your own can monitor probate docket, isn’t magical powers only attorney can do.
If they get named executor & on independent administration they have huge broad powers. To me you have to, HAVE TO, have will contested & estate moved to dependent administration asap so that every action is court supervised. Goal to me is to get old will declared the “valid will”. Judge can decide that’s not happening & require lineal heirship.
it sounds like Auntie had lots of different assets, you need to come up with list of assets. You can scour the online courthouse tax records to find property in Aunts name. Talk w/ relatives to find info. In theory your atty can do this, but you want to do as much of it as you can as things do get overlooked, especially if Auntie was married more than once & wed someone who was & had kids predecease them. Ask family if assets in another county, important as ea has its own probate court so atty will need to file challenges in those courthouses too. Be the family detective 🕵️♀️ .
Ask around as to what life insurance companies she likely had policies with (tend 2b faith or employer affiliated, like Lutherans get Thivent), so contact them on line & file a fraud alert for any policy claim (insurers are pretty good abt this). But you have to know who the insurer is or have a good guess to to which it could be to begin with.
Realize that if no “valid will” then becomes a lineal heirship. If she was on community based Medicaid that will be a factor for her assets. Clearly speak with your atty as to just what these may mean for your family. Again Good luck.
On not having the “new will”. When grifter opens probate or needs to do anything that involves probate laws, that “new will” has to be entered or filed in probate court. It has to be submitted in some way for any type of asset transfer (home, land) to be done. It will be in a docket somewhere. It gets entered, then a determination done if valid (maybe 10 days, maybe longer, it’s state law based) & this imo needs to be challenged by your atty. You can pay to get a copy of everything filed in a courthouse with the exception of things involving minors or medical records. Inexpensive too.
For most courts nowadays probate stuff is mainly done via online. That atty you spoke with likely has an atty portal via their bar card that’s registered or “recognized” with the court.
Before this goes on too far, I’d suggest that you do a initial likely asset list and then meet with the atty asap. Like in next week, or 10 days at most, to go over what litigation options there are. Having a rough asset list shows the atty that it would be worthwhile to persue litigation, that there are assets. If this attorney does not have real litigation expertise have them recommend another who does. Not experience with doing conflicting claims resolution but actual litigation experience.
If grifter has been bleeding Auntie's bank accounts when alive, so most of auntie’s $ is gone over the past 2 years, I don’t see that $ ever coming back.
But family can stop grifter from acquiring any real property (land, home, cars) that were in Aunts name at time of death as grifter needs that allowed by probate court & your atty will file challenges. You can get life insurance beneficiary payments and bank accounts frozen.
On the CC & car loan, Atty can send letters to all accounts that Auntie was placed on as co-signer / co-owner that fraud is suspected on the application and APS currently has an investigation ongoing…. APS could shut this down manana as Aunties dead, so ya need to get this off asap imo. This could get real in the weeds, cause if the CC & car loan folks consider Auntie somehow as the “owner” of the debt, they can file a claim against the estate for the $ owed. If the grifters grandson fails to make car payments and vanishes with the car, the lender can place a claim against Aunties estate; if a claim actually filed, it will be in the docket and will have to be dealt with in some way by the Executor. You do not want that happening if you can help it. Talk with the attorney about this.
Please PLEASE please have your 90+ grandmother review her own will and do an update (a codicil) to it so that it clearly shows who is to manage her estate as Executor and be beneficiaries. If the dead auntie has your grandmother as her beneficiary as per the missing old will and grandma dies before all this gets resolved in a year or two, it will become a real hot mess unless grandma new codicil clearly indicating how any after death assets of grandmas gets dealt with. The atty you spoke with can do this; you probably don’t need to get an estate atty to do the codicil.
let us know what happens, best of luck.