The Ghosts of Clients Past – The Dangers of Financial Elder Abuse Claims Against Estate Planners

For elder law practitioners and estate planning attorneys, LMICK wishes to bring to your attention this important topic and republished article¹ provided by Hinshaw & Culbertson LLP. This article discusses that, “In states with Financial Elder Abuse statutes, legal malpractice claims by seniors invoking those statutes are common. These laws are generally understood to address the conversion of property of elderly or dependent adults based on undue influence or duress. In fact, liability can usually be established based on a showing of any wrongful taking of the elder’s property.”

Some takeaways from the article are that, “The law regarding the circumstances under which an estate planner may be sued for financial elder abuse remains unsettled. However, the existing precedent is instructive on two points.

1. First, there is a heightened risk of liability when conflicts are not adequately identified and waived or avoided altogether.
2. Second, late-in-life changes are risky without adequate safeguards that build a record of adequate due diligence on testamentary capacity. Thus, as is true with most professional liability risks, the client file is the practitioner's best defense. Though testamentary capacity can be satisfied when the client suffers numerous disabilities, avoiding risk to successors is best achieved by documenting the process of evaluating the client under the appropriate standards.”

LMICK recommends that you read the full article for all of the important issues discussed pertaining to this area of law.

Questions? Contact Jared Burke (burke@lmick.com) for more information.