How do you prove elder financial abuse?
Nursing Home Abuse - July 20, 2022
Financial elder abuse is the illegal, unauthorized, or improper use of an elder’s money, benefits, belongings, property, or assets for the benefit of someone other than the elder. This can include outright theft of property or accepting transactions for which the elderly person does not have the mental or cognitive competence to make.
If you suspect that a loved one has been a victim of elder abuse, particularly financial abuse, a Chicago nursing home abuse attorney from Horwitz, Horwitz & Associates is ready to advocate for the best possible outcome in your case.
The issues of competency and capacity
When dealing with an issue of elder financial abuse, it’s important to spend time determining the elder victim’s competency and mental capacity. Their competency and mental capacity are crucial to proving elder financial abuse occurred because they can create the distinction between a willful gift and financial abuse.
Unless proven otherwise, elders are assumed to be mentally competent enough to take care of their finances. However, if they’re found to be incompetent or unable to make their own decisions due to a medical or emotional condition, it’s very important that a trustworthy person be assigned to take care of the elder’s finances for them.
Determining an elder’s competence to make decisions helps attorneys decide whether certain transactions were made legally, or if they were cases of financial elder abuse.
The issue of competency is a judicial determination that can be decided upon by the court when presented with evidence challenging competency. Without a challenge to competence, the court will presume that all adults are competent and can testify in court.
When competence is in question, your attorney will request a pre-trial hearing to address the issue and call upon evidence and witnesses to contribute to the determination of competence. Competence hearings should be conducted as closely as possible to the trial to ensure that the findings are accurate, as competency can quickly shift over time.
Capacity concerns a person’s ability to consent to specific acts or transactions. The specific act or transaction dictates the degree of capacity that’s required to legally consent to the act or transaction. This might sound complicated, but your attorney will present evidence to the court and will argue on your loved one’s behalf to demonstrate a lack of capacity for instances of financial elder abuse.
What you and your attorney must prove to have a successful case
Unfortunately, experiencing elder abuse doesn’t lead to automatic compensation, instead, a claim or case must be brought to collect damages.
1. It’s “more likely than not” that the abuse occurred
To begin, it must be proven that it’s “more likely than not” that elder financial abuse occurred. “More likely than not” is a low evidentiary standard, meaning the attorney for the victim must simply demonstrate that, based upon the facts, it’s more likely that the abuse occurred rather than not. This can be compared to the “beyond a reasonable doubt” standard that’s applied in criminal courts.
2. The victim was 60 or older when the abuse occurred
The victim must have been aged 60 or older when the financial abuse occurred.
3. The perpetrator knew or should have known that their actions could cause the elderly person harm
It must be proven that the perpetrator knew or should have known that the elder person would experience harm from the abusive act or transaction. The element of knowledge is most relevant if the perpetrator states they believed the transaction was a gift.
Because this is a crucial element of proving elder financial abuse, it’s imperative that you work with an experienced Horwitz, Horwitz & Associates nursing home abuse attorney to ensure the important evidence is collected and a strong case is presented to the court to receive a judgment in favor of your loved one.
Do you think your loved one is suffering from financial abuse? we can help.
If you suspect that a loved one is a victim of elder financial abuse, report the abuse to the authorities and connect with a Chicago nursing home abuse attorney as soon as possible. The dedicated elder abuse attorneys at Horwitz, Horwitz & Associates are available to provide a risk-free, cost-free evaluation of the facts and circumstances of your situation to determine if we can help you.
We’ll go over the basic facts, consider the parties that might be liable and the amount of damages, then answer any questions you might have before getting started.