1. Title Insurance and Elder Abuse
John Martin
Stewart Title Guaranty
Alaska Land Title Association Winter Convention
February 4, 2017

2. Statistics on the Aging Population
Alaska has the fastest growing senior population in the nation

3. Transactions needing extra vigilance
A party is 65 years of age or older
Elements of the transaction do not appear to be commercially sound or fair

4. Nature of the relationship between parties
Is there a confidential or fiduciary relationship?

5. Circumstance to closely examine
Participation of the benefited party in securing the gift or transaction
Lack of disinterested or independent advice
Secrecy or haste in closing the transaction
Unjust or unnatural gift or transaction
Grantor susceptibility to influence
Change in grantor’s plans regarding the property

6. Does the signor know what is being signed?
Escrow and Notary
Signor’s Capacity
Does the signor know what is being signed?
Does the signor understand the effect of the action?

7. Different matters require different levels of capacity
Capacity continued
Different matters require different levels of capacity
Contract, conveyances and powers of attorney require the highest level of capacity
The person must be able to understand the nature and effect of what they are signing
Bad decisions do not equal lack of capacity

8. Strategies if concerned
Talk with the party
Best if no one else is around
In a relaxing environment, such as their home
Encourage questions
Best time of the day for the party
Ask indirect questions so as to not unsettle the person
Man, that was some crazy election, wasn’t it?
Sure got a lot of snow last week, didn’t we?
Does this shirt make me look fat?

9. Factors to look for when talking with the party
Can the person articulate reasons for the decision?
Has there been variability in the decision – has the party changed her mind about listing the property several times?
Does the party understand the consequences of the decision – he will no longer live in the home?
Does the party know what they will do next?
Does the party understand the irreversibility of the decision?
Is the action consistent with lifetime commitments?

10. What do you do if you have concerns?
Ask someone else to help evaluate competence
Find family member to discuss the transaction
Do all family members agree with the transaction?
Ask for a doctor’s certification that the party is competent

11. Transaction red flags
The party is accompanied by someone who appears coercive
The party does not seem to be allowed to speak for herself
The party appears fearful
The party appears confused or unable to give a good explanation for the transaction
Recent uninsured deed or reconveyance of the deed of trust without new financing
Rushed transaction
Sale with money going back to the buyer
Unexplained or unreasonable urgency of transaction
Money passing outside closing

12. Powers of attorney New Alaska Power of Attorney Act
Must be competent when signed
Always talk with the principal
Why using the POA?
Understand that someone is acting on his behalf?
Understand consequence of transaction?
Still in effect?

13. Powers of attorney continued
What is transaction?
Family member?
Third party?
Arms length?
Prepared by attorney?

14. File a report with Alaska Adult Protective Services
What to do
File a report with Alaska Adult Protective Services
Not mandatory reporters
Report is confidential
Immune from liability for good faith reporting
If the investigation clears the transaction, you’re free to close

15. Strategies to deal with parties involved in transaction
Persuade them that it is in client’s and their best interest to slow or cancel transaction

16. Real life examples Watson
POA forming L.L.C., naming manager, property conveyed to L.L.C. and manager sells out