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Seniors Offered More Protection From Possible Abuse of Their Money
by Eileen Doherty, Executive Director
Senior Answers and Service
and the Colorado Gerontological Society
Many older adults who grew up in the depression have saved all of their lives. As a result elders may have saved thousands of dollars. Elders are very proud of their accomplishment and often do not want to spend these funds, even for their own care. The elder’s goal is often to save the money and give it to their heirs.
However, many times children and/or other persons who express an interest in the welfare of the elder gain access to these funds, usually through a power of attorney. Most individuals who have a power of attorney have the best interest of the elder at heart and spend their funds judiciously and purchase legitimate services for the benefit of the elder.
But sometimes the child and/or trusted friend may be exploitative and dishonest causing problems to arise. Sometimes, even when the services are legitimate, a prudent person may believe the charges are excessive or the cash withdrawals are for the benefit of the person “providing the care”, rather than for the elder. Based on these conflicts, a number of changes have been made to Colorado statutes effecting elders and other at-risk adults.
Effective January 1, 2010, the power of attorney statute requires the elder to expressly give authority to an agent for access to checking and savings accounts, sale of property and securities, and other investments. The power of attorney was changed to give elders (and others) the option to grant certain powers and to withhold others depending on their personal needs.
Powers of attorney signed prior to January 1, 2010 may give the agent the same powers, but may not be explicitly described or exempted.
Another statute attempts to protect the elder’s resources from being spent without some oversight. Thus, a conservator, appointed by the court, may not serve in dual roles. This means the conservator cannot be the same person or entity as the guardian or the direct service provider and may not employ the same person as both a case manager and direct services provider. These same protections do not exist for financial powers of attorney and medical powers of attorney, where one individual can serve in multiple roles.
Thus sometimes elders are paying for a) case manager; b) direct service providers, c) a conservator, and d) a guardian. While each professional is allowed to charge a reasonable fee, sometimes seemingly expensive to the elder, the intent of the legislature is to ensure some oversight that reasonable fees are being paid to the parties, rather than one party collecting more than reasonable fees for all four responsibilities. However, the term “reasonable” is not defined in the law.
In the most recent legislative session, some advocates attempted to put caps on attorney compensation in the hopes of retaining as much of the estate as possible for the individual, rather than using it for attorney fees. However, this legislation failed.
This spring, the legislature passed a law to voluntarily allow elders (and others) to sign a consent form giving the bank or other financial institutions the power to contact law enforcement and/or county adult protection services workers and provide them with specific information about potential exploitation, fraud and abuse. Frequently elders are victims of children and/or others who withdraw thousands of dollars from bank accounts. The elder feels victimized, but is unwilling to press charges against their child or other trusted individual. The signing of this consent form will give law enforcement the power to press charges without the consent of the elder. This consent form will be available after September 1, 2010 from your financial institution.
Individuals who commit a crime against an at-risk adult abusing any of these powers and responsibilities, can be subject to felony charges resulting in jail time and/or fines.
For more information, contact your attorney or you can call The Society at 303-333-3482 for referrals to attorneys.
Eileen Doherty, MS is the Executive
Director of Senior Answers and Services and the Colorado Gerontological
Society, 3006 East Colfax, Denver CO 80206. She has more than 30 years of
experience in education and training, clinical practice, research, and public
policy in gerontology. You may reach her at 303-333-3482 or Doherty001@att.net
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