1. Law Offices of Jonathan Canick, Ph.D. Daniel Murphy Neurology & Psychiatry, CPMC Asst Clinical Professor, UCSF Elder Financial Abuse: Legal Considerations & Cognitive Capacity

2. Testamentary Capacity California (1) Understand the nature of the testamentary act. (2) Understand and recollect the nature and situation of their property. (3) Understand who their family is and how they will be affected by the will.

3. Undue influence Undue influence consists: ◦1. the use by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; ◦2. In taking an unfair advantage of another's weakness of mind; or, ◦3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. ◦ California Civil Code §1575

4. Ida McQueen Disabled senior Unable to read or write Cerebral PalsyCompletely Dependent on Others Wheelchair bound

5. Statutory Abuse Abuse means either : (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Welfare & Institutions Code § 15610.07

6. financial abuse Welfare & Institutions Code § 15610.30 A. ◦Takes, ◦Secretes, ◦Appropriates, ◦Obtains, or ◦Retains real or personal property for a wrongful use or with intent to defraud, or both

7. “Assists” in Financial Abuse Welfare & Institutions Code § 15610.30 B. Taking, Secreting, Appropriating, Obtaining, or Retaining real or personal property for a wrongful use or with intent to defraud, or both

8. financial abuse Welfare & Institutions Code § 15610.30 C. ◦Takes, ◦secretes, ◦appropriates, ◦obtains, ◦or retains, ◦or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in ◦Section 1575 of the Civil Code.

9. California’s Common Law Rebuttable Presumption of Undue Influence And Fraud California’s Common Law Rebuttable Presumption of Undue Influence And Fraud A presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied, such as... the security of those who entrust themselves or their property to the administration of others. Evidence Code §605 What makes a presumption one that affects the burden of proof rather than one merely affecting the production of evidence is that “there is always some further reason of policy other than to facilitate the determination of the particular action in which the presumption is applied, such as...the security of those who entrust themselves or their property to the administration of others.” (Emphasis provided) Rebmann v Major (1970) 5 CA3d 684, 688, 85 CR 399

10. Statistics of Elder Abuse Elder abuse affects seniors across all socio-economic groups, cultures, and races. Women and “older” elders are more likely to be victimized. In 2003, two out of every three (65.7%) victims were women and (42.8%) were age 80 or older

11. Scope of Problem - 5.1 million elders over 65 have dementia - Nearly half of all elders over 85 have Alzheimers or other kind of dementia

12. Indicators of potential abuse Sudden change in finances and accounts Altered wills and trusts, Unusual bank withdrawals, Checks written as “loans” or “gifts,” Loss of property