5 minutes reading time (930 words)

Beware of Parents Bearing Gifts - The Danger of Elder Abuse Charges

I try to write something once or twice a year that directly arises out of my law practice. The blog article also becomes part of my Facebook page, and my website www.keusink.com. I only write about things that are going on, right now, in plain English. They cover topics of interest to people living in my county. This one is directed to all you baby boomers, and caregivers of the elderly.

 What is more natural than a parent wanting to give a gift to their child? If your parent is over 65 years old, and you receive a gift from them, did you know that you can find yourself facing civil elder abuse charges or felony criminal charges? We have had a flurry of cases on this subject, and the problem is becoming common.

The situation most commonly arises when a parent over 65 gives one child an asset, and the remaining children receive less from that parent. In a recent case of ours, an elderly man gave his assets to his second wife in his will. The next day, the children of his first marriage found out about it. They then persuaded Dad to give them all of his assets. The will had nothing left to give to the second wife. The kids ended up paying our client $150,000.00.

Wrongfully taking or accepting parent assets can result in civil damages of triple the size of the gift, and an award of attorney fees.

Wrongfully accepting or taking assets from your elderly parent can also result in felony charges.

So what’s this all about? Parents can’t give gifts to their kids?

The question revolves around what is “wrongful”. Wrongfully taking assets from a parent is not well defined in law. And when an asset is wrongfully “taken”, the act of “taking” is also not well defined. Instead, a jury decides, after the fact, whether a gift from a parent was “wrongful”. That’s a bad situation to find yourself in.

The law does not focus on the intent of the parent; it focuses on what the child did. In a civil case, the law looks at the “gift” and how it came to be. Some factors civil law looks at are:

1. Did the child participate in obtaining the transfer?

2. Did the parent have independent and disinterested advice?

3. Was the transfer done in secrecy and haste?

4. Was there an unexplained parental change in attitude towards the other children or beneficiaries?

5. Is there a change from a long term estate plan?

6. Is it an unnatural or unjust gift, such as to a caregiver instead of to the children of the parent?

7. The parent’s susceptibility to influence, such as whether they are ailing or not mentally acute.

If some of these factors are present, the burden shifts to the child to prove that the gift was not “wrongful”. That is an uphill battle.

A parent does not have to be mentally incapable to make a transfer wrongful. The focus is on the conduct of the child.

In a criminal case, elder abuse can occur where a child is in a position of “trust and confidence”, or, where a child has “assumed the responsibility” for “care or supervision” of their parent. In those circumstances, a child may not take (accept) anything from the parent without being in jeopardy of criminal prosecution. This also applies to people like caregivers, even professional caregivers.

It does not seem natural that Oregon law would prevent a parent from giving their hard-earned assets to their own children. On the other hand, Oregon law is designed to prevent people in a position of trust from abusing that trust to get the assets of the elderly.

So, what can you do if your loving parent says that they want to give you something substantial (but don’t tell your brothers and sisters!) ?

My advice will vary from situation to situation. The first thing that should always be done is to have an appointment with an attorney, so that the parent can get independent and disinterested advice. No situation gives ironclad protection from accusations of elder abuse. But getting a parent independent legal advice is crucial to protect against accusations of undue influence.

It might also be a good idea, in cases of large-ish gifts or disproportionate gifts, to have your parent see a mental health counselor about the reasons for the gift. This could help protect you, as a child, from accusations that you took unfair advantage of your parent.

Although a parent often does not want siblings to know about a disproportionate gift, it might be wise to have your parent inform brothers and sisters of their intent to make a gift to one child. This eliminates the “haste and secrecy” consideration from undue influence.

Deathbed gifts are never advisable. At that point, your parent is very vulnerable and most likely more susceptible to influence whether intended or not.

When a parent wants to give one child a gift to the exclusion of the remaining children, the child to receive the gift should be reluctant to accept it. If the gift is equal to all the children, there is less likely to be a complaint.

I know that taking precautions against accusations of undue influence seems almost paranoid. But the frequency of the cases I handle in this area is increasing. The consequences, especially criminal prosecutions, can far outweigh the benefit of even a large gift. And the grief litigation brings to a parent, their child, and that child’s siblings, is not measurable.

 

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