From California

If any of  your readers are trying to determine how much money may be missing from an estate, or where assets may be located, I want to let them  know that the IRS has a provision that allows heirs, beneficiaries, and family members of decedents full access to the all of  decedents income tax returns.  They need no one’s permission, only personal identification,  proof of the death, their relationship to the decedents, and a copy of any documents identifying them as an heir or beneficiary. (ie: copy of the will or trust.  A certified copy of the death certificate is helpful).  This is all especially relevant to anyone dealing with predators or exploiters who are personal representatives of estates, or trustees.  It also may be helpful circumventing those with power of attorney.

Here’s how it helped me.  I and my siblings are the only living relatives of my aunt and uncle, a wealthy, childless couple who adored kids and whose lifelong wish was to provide for us after they were gone.  Unfortunately, in the late 80′s they hired a CPA who betrayed them and created the perfect storm of financial exploitation.  He was hired to assist them with tax preparation and other financial matters as their vision and health began to fail.  My uncle was an attorney and astute businessman.  My aunt was also very financially savy but with severe macular degeneration.

After discovering their degree of wealth, the CPA dropped his license without disclosing it to anyone. This enabled him to become financially enmeshed with them in ways that would otherwise be illegal and unethical by the state licensing board.  Less than 90 days before he died in 1998, while my uncle was on hospice, the accountant found an attorney who drafted a will creating a trust into which 100% of the assets were placed.   He was named as trustee of the trust, personal representative of the estate, and shortly after the funeral he had documents signed giving him durable power of attorneys over all affairs of the now blind wife.  This gave him total control over all assets and anyone desiring to view them.  All family members, friends and neighbors were suspicious of him, but all believed him to be a CPA offering at least some protection against fiduciary mismanagement.   Our suspicions were correct.

The now-former CPA had given the attorney and courts incorrect information so I and my siblings were never sent copies of my uncle’s will and were never notified that we were residuary beneficiaries of the trust created for benefit of my aunt first, then us after her death.  His next move was to hire a licensed clinical social worker to see my aunt weekly as her “therapist.”  She didn’t accept insurance and was paid under the table as were all the caregivers he eventually hired to care for my aunts.

We wanted my aunt to move nearer to us to or into assisted living, but we honored her initial desire to stay in her home.  The social worker then proceeded to “stir up” family conflict,” pitting sibling against sibling, and keeping our mother unable to sort things out because of her own advancing age.  The therapist also oversaw all the caregivers who monitored and reported all communication and visitation in and out of the house.  The “undue influence” was just mind boggling.  Everyone, including my aunt, was literally being held hostage by the accountant.

My aunt’s case had all the red flags:  elderly, totally dependent, hearing impaired, visually impaired, wealthy, no children, all family members lived out of state but were active, or tried to be active, in her care.  The accountant gradually isolated her from family and friends, denied access to anyone stopping by “without an appointment,” and all but estranged her from the outside world and people who loved her.

My aunt passed away in 2007.  It’s my belief that her death was orchestrated by the accountant who managed to enroll a physician into his plan.   The physican informed us she was unaware her patient had any family!  Looking back, my mother’s death in February 2006 seems to mark when the accountant put his plan into action.

Ten months after the death of my mother, the accountant complained to the physician that my aunt’s quality of life was very poor and they agreed to discontinue the normal geriatric medications.  She was on the usual basic medications to control mild-moderate high blood pressure and congestive heart failure that had been controlled on her symptoms for years.  Without them, they knew her blood pressure would rise and heart failure worsen causing her death from pneumonia.  He actually notified us of his plan telling us they were going to discontinue her medications, place her on hospice and expected her to die before the first of the year.

As my aunt had no terminal diseases like cancer or alzheimers, no acute falls, illness, injuries or infections, and was all in all very stable, communicativ, we objected vehemently, but he had power of attorney and the health care professionals refused to take another look.  My aunt expressed to her hospice caseworker that we were to have complete access to all medical records and current conditions, but after learning that, the accountant revoked that privilege!

I spoke with the hospice attorneys, but they wouldn’t override his authority.  (Three of the four nieces and nephews were experienced RN’s and other health care professionals!)   My aunt was absolutely lucid during all of this and expressed clear desires to continue taking her meds, and live!   I notified Adult Protective Services who visited the house and saw a lucid,  elegant, well educated, wealthy woman with no bedsores or bruises.  They actually protected the predators which I’ve now learned is all too frequently the case.

I actually visited the American Bar Association advocates for elder justice while this was going on and they told me directly that my aunt would probably defend the accountant, and say all was well.  That’s exactly what happened. APS could have saved her life, and estate, if they’d done their job.  I’m concerned that many of them are becoming or working with the predators.

Rather than interview friends, neighbors, and all family members, they instead spoke with the physician and caregivers hired by the accountant.  This was the third set of caregivers.  Almost all were from Sierra Leone and were being paid “under the table,” as was the “therapist.” so all had an interest in protecting the accountant.   Anyone who’d reported concerns about him to the therapist, family members, or friends were immediately terminated.  The accountant was in total control.

Of all the elder law attorneys I spoke with, many elder law attorneys felt sure that APS would take care of the situation and they had nothing to offer once no problem was declared.  I finally went to the state attorney’s office and reported my concerns to their chief fraud investigator.  He listened, but also had nothing to offer unless I could provide him documentation of fraud or proof of wrongdoings.   All I had was proof from the CPA licensing board that the accountant had been licensed and dropped his license voluntarily just after being hired by my aunt and uncle.  I had nothing proving that he was still representing himself as CPA and since it only seemed to affect one individual, they didn’t have time for it.

If I’d had the IRS information then, more could have been done.   Only the accountant could authorize access to the records that could prove his crimes.

Six months after my aunt passed away, we received the first accounting of the estate.   I felt a lot of money was unaccounted for, but I didn’t know how to prove it.  The Freedom of Information Act would allow me access to some records, but the process is very slow.   I knew the accountant had used a lapsed power of attorney to liquidate stock days after my aunt died thinking we would never know.  I reported it, but again, only the accountant as personal representative of the estate could request copies of the documents that would incriminate him.

I and my family had paid thousands of dollars to well reputed attorneys who knew far less than I about the laws that could help me.  None knew what to do;  one large firm sent a bill for over $10,000.00 for a petition to remove the accountant as executor, but it was full of unsubstantiated allegations that we believed to be true, but documentation could only be obtained with his permission!   It was just useless.

I finally learned from a nice court clerk  that I could request a copy of my uncle’s 1998 will and accounting of his estate and hoped it would help me determine how much money there had been ten years earlier.  It was then that I learned of the trust the accountant had created, and that he’d declared the estate’s value at approximate $600,000.00, which was much too low for a couple of my aunt and uncle’s means.

In the fall of 2008,  I discovered I was entitled to view my aunt and uncle’s IRS records.  I don’t remember how the discovery came about, but it provided enough evidence to get the attention of some people I needed.   I went to the local IRS office and with the help of some kind employees, obtained copies of old tax returns and transcripts that showed my aunt and uncle’s annual income had been over $100,000.00 from interest and dividends alone for years before my uncle’s death in 1998 and some years after.  I also learned their income the year my uncle died was over $1 million dollars, twice what was declared to the court as the total value of the estate.

We’ve yet to determine where all the accounts are that were generating all of this income in dividends and interest.  There had to be well over $1 million dollars somewhere because that income continue to exceed $100K in the following years before disappearing from the statements.  (Also of interest here is that the state failed to find any tax returns the accountant was being paid to prepare.)  The returns were in total opposition to what the accountant/personal representative/trustee/power of attorney had disclosed in the accounting.   In the state in which this is occurring, as in many other states, there is no requirement to “register” trusts so it was unknown presumably to all but the accountant as to exactly what happened.  Trustees are required to give keep records, produce accountings if asked, and pay taxes.  The accountant knew he could go undetected since no one but the attorney knew the trust existed.

I was at another dead end until the IRS told me that all trusts had to have a “tax ID” or “EIN” number.  Trustees are required to obtain the number and report the trusts annual income and debits and pay taxes accordingly.  Both the IRS and indirectly the state informed me they had no knowledge of a trust associated with my relatives nor the accountant as trustee.

Bottom line:   The IRS returns should show individual’s assets, sources of income and by law, can be viewed by heirs.   In our case it was the lack of information the returns didn’t contained that proved so helpful.  The returns fail to disclose the more than $150,000.00 the accountant was paying his “household employees,” LCSW, and the physical therapist “under the table” or the income received from two trusts.  They alone provided enough proof to inspire the authorities to finally investigate.  It’s still very difficult because the laws are designed to protect the criminals.  I still have an uphill battle to determine where the money went, but I’m working on it.

My heart goes out to all of you in similar situations.  I was totally unfamiliar with the probate courts until recently, but it’s clear that they’re sorely misguided, leaving all the power in the hands of the predators.  Lawyers are appallingly ignorant of how to protect victims and probate judges horrifically apathetic!  Probate clerks are very helpful with their knowledge and instruction, but the unconscionably high fees charged by attorneys make skilled access to the courts almost impossible.  The cost/benefit is absolutely in favor of the courts and predators.  The less that comes to them for litigation, the less they have to do.

What’s most disturbing is the seemingly huge effort being made to educate people in law enforcement, health care and the legal professions with little return for the effort.  I’ve been to several elder law conferences, bar association meetings, read many websites, and followed what’s going on, but learned NOTHING that’s helped gather the evidence needed to prosecute these folks.  Paul Greenwood has made great efforts to show that the evidence IS THERE if anyone bothers to collect it, but it seems like it’s more lucrative for everyone to look the other way.  Attorney’s can bill thousands of dollars worth of hours without providing even one useful shred of information.  APS and other investigators can easily fail to collect information that would force them to take another look and doctors don’t want to get involved.  They all make quick assessments then sign documents that terminate elders’ rights and protect the predators.

My family has spent well over $30,000.00 on attorneys who have provided no useful information or intervention.  A close family friend spent over $200,000.00 on attorneys trying to extricate their elderly father from a young predator.  An attorney finally suggested that they essentially “kidnap” him and take him out of state and jursidiction of the young girlfriend.  It worked, but if the girlfriend had had the means, she could have made it worse.  Fortunately, she gave up, but not before going through a half million dollars of his money.  My aunt was asked to testify on the father’s behalf, but interestingly, the “accountant” wouldn’t allow it!  He told the court she was “too fragile” to be deposed when she was in fact extremely distraught about what was happening to her friend!

Abused power of attorney is the easiest way for the predators to get started.   My first experience in all of this was with my mother in Houston who trustingly gave POA to my older brother thinking he’d protect “the family” and follow her wishes.   Instead he had her will drafted by an attorney who didn’t question anything.  She, like my aunt, was legally blind.  The visually impaired are especially vulnerable.

Lastly, I’m now dealing with the mother of a close friend who’s been conserved against her will in California.  As with the others, she is a healthy, lucid, wealthy property owner essentially “stalked” by an APS worker.  It was very simple for the APS worker to manipulate people and information, using consultants with a confict of interest to have my friend’s mother put under the control of a public guardian. Her son lives near by and regularly took her to hair and medical appointments, run errands and pay bills.  The social worker “befriended” the elder, then portrayed a picture to the court of an uncaring son, missing money when none was documented with sole dependence on the social worker’s word!  She manipulated information given to the woman’s physician and was able to have a conservatorship hearing scheduled without a formal competency evalution, no evidence of financial exploitation, physical or emotional abuse.

The family was in shock and in disbelief that the system could be so easily abused.  They expected the court-appointed attorney  to present a case demonstrating why the case had no merit, but the attorney didn’t appear on the day of her hearing!  They then trusted that the  judge would act appropriately, hear the woman’s clear declaration that a conservatorship wasn’t needed, and IF the judge insisted, that she asked her son be appointed.  Who would expect the judge would ignore the lack of evidence and representation, then  with the sweep of a pen, removed all of her rights to make personal, financial, legal and health care decisions!

All of her assets were immediately frozen and she was without the right to hire her own attorney!  Clearly she couldn’t rely on the one appointed by the court.  This woman is alert, active and bright, needs no assistance bathing, dressing, cooking eating or any other activities except driving.   The county now gets paid well to send “caregivers” who charge the woman over $20.00/hr to sit and read, and others to deliver checks to her for incidental expenses.  It was really interesting since she didn’t have the legal right to cash them!

I was finally able to get her attorney to have her evaluated for capacity.  The news was good.  After two 3-4 hour evaluations in her home, he determined that she did have a few minor memory issues, but declared she had no deficiencies that should limit her ability to make legal, financial or health care decisions and had no need for a conservator.   Her attorney seemed surprised.  She’s been a court-appointed attorney for more than 20 years, specializing in probate issues, yet she’s NEVER filed to have a conservatorship reversed!

This is occurring in one of the weathiest counties in California where social services are, like everywhere else, overwhelmed and understaffed.  It’s curious as to how many wealthy citizens with extensive assets are being conserved while those much needier adults in the same county are being denied help.

I’m sad to say that in my very limited experience, I’ve seen nothing but horror stories.  All involve attorneys, physicians and judges who fail to read documents critically, evaluate all facets of a situation thus empowering the predators.  None really look to see what, if any, checks and balances are in place to protect the individuals in the cases in front of them.  I’m especially horrified to see how often the situations are all caused by, or facilitated by, social and APS workers.  It seems like the criminals have figured out how to use them to facilitate their crimes.

DP

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Stories of Denial