| In elder financial abuse cases, it is often difficult to | | | | However, the caregiver then decides that she wants |
| prove that the defendant intended to commit a | | | | all of the money, and forges the signatures of the |
| fraud against an elder. Many times, the elder is | | | | elder's children and endorses each of their checks to |
| incapacitated and unable to give meaningful testimony | | | | the caregiver. Under this scenario, the fraudulent |
| at trial and the only eyewitness that can testify is | | | | intent was not present until after all of the checks |
| the defendant. | | | | were signed by the elder. However, the totality of |
| Constructive fraud can then play an important role in | | | | the circumstances, including the caregiver's initial |
| proving the case of financial abuse. | | | | desire to receive her own gift, clearly show that the |
| The defendant's actual fraudulent intent is not | | | | caregiver's action were fraudulent and that she |
| required. Instead, the law looks to other factors to | | | | breached her duty in order to gain an advantage |
| show that a fraudulent occurrence took place. | | | | over the elder. |
| These other factors include the existence of a | | | | In California, the fiduciary relationship has been |
| confidential or fiduciary relationship where the | | | | extended to every possible case in which a fiduciary |
| defendant had the opportunity to take advantage of, | | | | relation exists as a fact. Such relation need not be |
| or exercise undue influence over, the elder. | | | | legal; it may be moral, domestic or merely personal |
| For example, a paid caregiver who spends a | | | | (Foster v. Keating (1953) 120 CA2d 435). |
| substantial amount of time with an elder will have | | | | When such a special relationship can be shown, the |
| developed such a special confidential relationship. | | | | law then imposes a presumption that the elder was |
| When this occurs, the caregiver owes a moral, social | | | | subjected to undue influence. This acts to shift the |
| and domestic duty not to take advantage of the | | | | burden to the defendant to prove that fraud did not |
| elder's weaker state of mind. But how can a fraud be | | | | occur. |
| committed when the defendant did not have an | | | | This presumption is implemented to further the public |
| actual intent to commit fraud? | | | | policy of securing an elder's property and money |
| Here's an example: A caregiver wants to receive a | | | | when they have been entrusted to others. |
| cash gift from the elder and convinces her that it | | | | Constructive fraud is another theory to prove that |
| would be wonderful if she would sign several checks | | | | elder financial abuse occurred when the evidence is |
| to the elder's children, and then also drops a hint that | | | | limited because of the elder's incapacity. The theory |
| the caregiver would also appreciate such a gift. The | | | | should be utilized by attorneys as one of numerous |
| elder agrees, signs all of the checks, and the | | | | other causes of action to be included in a lawsuit for |
| caregiver agrees to deliver them to the children. | | | | financial abuse. |