Financial Elder Abuse involving an Attorney

Occasionally an attorney will have a meeting with a prospective elderly client who is exhibiting signs of frailty, e.g. poor vision, short-term memory loss, labored speech, listlessness, etc. The prospective client may want to engage the attorney to draft a trust or amend an existing trust. While an attorney can certainly represent an elderly and frail client, they should be vigilant that such frailties do not impede the client's ability to know and understand the consequences of their actions. In a recent published appellate opinion, an attorney was found to have committed financial elder abuse.

A daughter and a former spouse scheduled a meeting for an attorney to visit with an 86 year-old because they were unhappy with his estate plan, namely his trust. During the meeting, the attorney obtained the man's signature on a $100,000 retainer agreement. The attorney had determined that the man had capacity during the meeting. The attorney then sent a letter to the co-trustees to request payment of the $100,000 retainer. The man's other daughter, a co-trustee, then filed an elder abuse restraining order against the attorney.

"The petition described the alleged abuse as follows. George, a wealthy 86 year old, has major neurocognitive disorder and lacks capacity. Gabriella, Gabriella's husband, and George's former wife Dalyla are unhappy with his estate plan, so Gabriella had Herren meet in secret with George, and now Herren is seeking payment of a $100,000 retainer. After the meeting, George was agitated and upset, and he experienced high blood pressure, rumination, poor sleep, diarrhea, and paranoia. His caregivers were afraid, and his chef quit. Dr. Sutherland reported the Herren incident to the county Adult Protective Services agency (APS)."

"The trial court ultimately issued a restraining order against Herren. In finding that Herren engaged in elder financial abuse, the court concluded the evidence established that Herren obtained a property right from George by undue influence (§ 15610.30, subd. (a)(3)), and that she knew or should have known the taking would be harmful to George (§ 15610.30, subd. (b)). The order prohibited Herren from abusing and contacting George, and ordered her to stay 100 yards away from him and his home."

The attorney naturally appealed this decision. On appeal, the California Court of Appeal upheld the trial court's decision.

"In the published portion of this opinion, we reject Herren's contentions that a restraining order could not be sought or issued under the Elder Abuse Act without the trial court first adjudicating George's competence. We also conclude that substantial evidence supports the finding that Herren committed financial abuse of an elder. (See §§ 15610.07, 15610.30, subd. (a)(3), 15610.70, subd. (a).) In the unpublished portion of the opinion, we reject Herren's other challenges to the elder abuse restraining order."

Herren v. George ____ Cal.App.5th ____ (2025)

Financial Elder Abuse

"I know when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

While there is obviously a legal standard for proving financial elder abuse, a cursory reading of the factual summary in a financial elder abuse case often yields an immediate recognition of the wrongdoing. That is, one can know when they read it.

"Felice and James married in 1978. Felice and James had no children of their marriage, but each had children from their previous marriages. Appellant Falb was James's daughter from a previous marriage, and respondent Lynne Scherer (Scherer) was Felice's daughter from a previous marriage. James died February 28, 2018. Felice died June 10, 2020, during the pendency of this matter."

"At the relevant times, Felice and James had four bank accounts: (1) US Bank checking account ending 6578, held in joint tenancy; (2) US Bank money market account ending 2001, held in joint tenancy; (3) Chase Bank checking account ending 5875, held as trustees of the Family Trust; and (4) Chase Bank savings account ending 5575, held as trustees of the Family Trust. In October 2017, James withdrew half of the balance from each of these bank accounts. The total withdrawn from the bank accounts was $291,569.26. Falb drove James to both banks to make those withdrawals. On the same day, Falb and James opened a joint account at Chase Bank into which they deposited all of the funds withdrawn from Felice and James's four bank accounts."

"In April 2018, after James's death, Falb had two cashier's checks issued to herself from the joint account at Chase Bank in the total amount of $285,474.30. She deposited this money into a new account at Union Bank in her own name."

"In May 2019, after James's death, knowing that Felice was in Colorado, Falb hired a locksmith to enter the Property and rekey it. She later rented a small truck to remove what she claimed was her personal property from the Property. She took a mechanical bed, three flat screen televisions, a typewriter, and a sewing machine.^[2]"

"After James's death, Felice was unable to locate a signed copy of the Family Trust and was therefore unable to administer the Family Trust. In March 2018, Scherer asked Falb if she was in possession of the Family Trust document; Falb claimed she was not. Falb claimed she found the Family Trust document in May 2019 in her garage in a box of books given to her by James in late 2017."

"In any event, substantial evidence supports judgment in Scherer's favor on the financial elder abuse claim. The trial court made findings that Falb took and "appropriated" the money in question by assisting James in withdrawing the money. To appropriate means "to take without permission." (Webster's 3d New Internat. Dict. (1986) p. 106.)^[7] The court also found Falb had taken and hidden the only executed copy of the Family Trust; taken, appropriated, and hidden items of personal property; and prevented Felice from selling the Property by pursuing the probate petition. These findings were sufficient to support a conclusion that Falb's conduct was undertaken for a wrongful purpose within the meaning of Welfare and Institutions Code section 15610.30, subdivision (b)."

Falb v. Scherer, San Bernardino County Superior Court case no. TRUPS1900250

Financial Elder Abuse

Occasionally I receive inquiries from concerned individuals who ask if their relative or friend has been the victim of financial elder abuse. The applicable law, Welfare & Institutions Code §15610.30, states that financial elder abuse occurs when a person or entity does any of the following:

1. Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with the intent to defraud, or both.
2. Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
3. Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Welf & I C §15610.70.
   

A recent unpublished appellate opinion described a case in which financial elder abuse occurred. Of note, the below excerpts from the opinion obviously do not recite the entire factual history.

"In 2015, Robert suffered from Alzheimer's dementia and experienced rapidly declining physical and mental health. In the summer of that year, he was hospitalized and, in August, recovered for several weeks in a rehabilitation facility.

In the middle of September, Miriam arrived from Texas and began living with Robert at the five-plex. The morning after her arrival at his home, she brought up the topic of Robert's estate with one of his nephews (Michael Sturm), who was then living at the five-plex. By that time, Robert had left the rehabilitation facility. Respondent Sturm, who had power of attorney over Robert's finances, was assisting Robert with his finances and care.

In the fall of 2015, Miriam made a number of significant changes to Robert's life. The day after Miriam's arrival, Sturm received a call from Bank of America that Miriam was attempting to withdraw cash from Robert's account. Over the following two days, Sturm received additional calls from the bank related to Miriam's attempts to withdraw money from Robert's account. After moving in with Robert, Miriam posted an eviction notice seeking to evict Sturm's brother (Michael Sturm). In response, Michael moved out.

Miriam also caused changes to be made to Robert's estate planning documents. In mid-September 2015, Miriam had Robert sign durable powers of attorney for his finances and health that appointed her as his agent. Robert also executed a revocable living trust and will dated September 19, 2015. The trust favored Miriam, Miriam's children, and Stephen and Michael Sturm.

On October 21, 2015, Robert signed an amended trust document that removed Sturm and his brother Michael from the trust and favored Miriam, her daughter Priscilla Olsen, Miriam's son, and Robert's other nephew. That same day, Robert purportedly executed a pour-over will naming Miriam as the executor of his estate. The will was lodged with the Santa Clara County Superior Court on October 23, 2015.

"In the spring of 2016, a trial occurred in the elder abuse case before Judge Scott, at which witnesses testified, including Miriam. In May 2016, Judge Scott ruled against Miriam and issued a permanent restraining order prohibiting Miriam from contacting Robert for three years. The court found Miriam had committed financial elder abuse against Robert. As summarized by the trial court in its statement of decision in the proceeding at issue here, "Judge Stuart Scott in connection with the elder abuse trial, found that [Miriam] engaged in a `full court press' to take control of Robert Broumas's property during his lifetime."

Broumas v. Sturm, Santa Clara County Superior Court case # 17-PR-181558