Gormley, Jennifer S., P.C.

This article explores how new requirements in the Uniform Power of Attorney Act (UPOA) encourage law enforcement to collaborate with government agencies, such as Adult Protective Services (APS), to prevent financial exploitation of at-risk adults. The new law: Provides more teeth for enforcement against agents that illegally utilize the power of attorney for their personal gain. May help prevent agents with sticky fingers from dodging civil or criminal penalties. May prevent agents from hiding behind gifting powers or other broad language interpreted by them to permit self-dealing. Better defines the duties and requirements of the power of attorney; and Provides a reporting requirement that increases transparency of the agent's activities. The UPOA better enables law enforcement and other government agencies charged with protecting the welfare of at-risk adults to stop the exploitation. In the past, a report of exploitation would typically not be investigated by law enforcement because of the difficulties dealing with financial crimes and limited resources. These crimes are tedious to investigate because of they are paper crimes usually without witnesses. Also, the exploiter that uses the power of attorney to gain access to the assets can hide behind various clauses in the power of attorney to justify or defend the conversion of the property. For example, many powers of attorney contain broad gifting powers that permit the agent to give away the principal's assets. The gifting authority may have been intended to be used for estate tax planning or Medicaid planning, but if not limited, the agent could simply exploit the estate by making gifts. The new power of attorney act allows for gifts limited to the Internal Revenue Code annual exemption, which is currently $13,000 per year, per individual. Broader gifting powers must be expressly provided in the document. Financial exploitation happens quickly and can go undiscovered for a long time. It is especially sinister because the exploiter is supposed to be a trusted agent, but instead fleeces the estate they are appointed to protect. The exploitation may be suspected by subtle changes in behavior or spending habits of the person, but often no inquiry is made because of privacy concerns. More obvious indicators may be drastic changes in banking or investments, or new mortgages being obtained. The exploitation is typically discovered by someone close to the person. The person concerned about possible exploitation has various avenues to seek help, but not all will result in protection. Three ways of handling suspicions about financial exploitation are as follows: Informing family members of concerns. Making reports to law enforcement or adult protective services; or Filing a civil action to remove the agent or to allege exploitation in a petition for conservatorship. In the past, obtaining evidence of financial exploitation was always challenging and often took too long. Such delays provide an exploiter with more time to hide evidence, steal money and escape prosecution. The UPOA provides a fast tool to deal with suspected exploitation by requiring the agent to provide a report within thirty (30) days upon a request. The new law states that a fiduciary or governmental agency having authority to protect the welfare of the principal can require the agent to disclose receipts, disbursements or transactions conducted on behalf of the principal within thirty days. In using this tool, both law enforcement and adult protective services (APS) can more quickly seek protection for the at-risk adult. The prompt reporting requirement mandates the agent to act and bypasses the need for a subpoena or court order. An agent's failure to comply within thirty days is a breach of the agent's duty and may provide further confirmation that the estate is being mishandled. This reporting requirement is substantial because it causes the agent to provide the necessary evidence in a timely manner. The direct involvement of law enforcement and APS underscores the important message to all agents that financial exploitation will not be tolerated. Editor's Note: This article was submitted by By Jennifer S. Gormley, Esq. She may be reached at 303-783-9600

We provide comprehensive Elder Law planning by reviewing assets, income and transfers in order to determine the elders needs and identify any other legal needs that should be addressed in the plan. Initially these plans are done with a focus on long term care planning, asset protection and Medicaid. Medicaid is a government program that is available to pay for long term care for individuals who are medically and financially eligible. We look at ways to create a safety net of overlapping resources so the individual can maximize their sense of security and independence.We specialize in the following areas of Elder Law:Incapacity: Incapacity is a formal, legal finding made by a judge in the context of a guardianship proceeding, after a hearing and introduction of clear and convincing evidence. Although the Courts appointment of a guardian for an individual constitutes a formal finding of incapacity, no such legal finding of incapacity is associated with a courts appointment of a conservator for an individual. For more information regarding guardianships and conservatorships, please click here.Although a legally incapacitated person lacks the capacity to be able to do things like write a will or enter into contracts, there are varying degrees of capacity short of a legal finding of incapacity within which a person may still be able to enter into legally valid, binding or enforceable arrangements. These situations include:Mental Capacity to Write a Will:  Testamentary capacity consists of mentality and memory sufficient to understand intelligently the nature and purpose of a transaction, comprehend generally the nature and extent of the property to be disposed of, remember who are the natural objects of the testators bounty, comprehend what the testator wishes to bequeath to his or her heirs or devisees with reference to the way those people behaved and treated the testator, and with regard to those individuals capacity and need, and understand the nature and effect of the desired disposition.Mental Capacity to Gift:  The essential requirements of a valid gift from one living person to another are a clear and unmistakable intention to make a gift, and a complete parting of possession and surrender by the donor of all control and dominion over the same to the done.  Questions of whether an individual lacked sufficient capacity to be able to clearly, unmistakably and knowingly form an intention to make a gift and completely surrender an item can be subject to litigation and are questions of fact determined by the court or, occasionally, by a jury.Mental Capacity to Contract:  For an individual to have sufficient mental capacity to enter into a contract, the individual must not be under the influence of fraud, coercion or imposition.  There is valid authority in Colorado for the notion that contractual capacity is legally the same as testamentary capacity, referenced above.  Competency to contract is determined by a partys mental state at the time of execution of the agreement.  Every person is presumed by the law to be sane and competent for the purpose of entering into a contract.  A party can be insane for some purposes, yet still have the capacity to contract.  However, a person is incompetent to contract when the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction.Mental Capacity to Marry:  Under Colorado statutory law, a decree of invalidity of a marriage will be issued when the marriage was entered into when a party lacked capacity to consent to the marriage at the time the marriage was solemnized, whether because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances.  The district court must also enter a decree of invalidity of a marriage entered into when one party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage, or one or both parties entered into the marriage under duress exercised by the other party or a third party.Medicaid/Medicare: Dealing with Medicaid and Medicare issues, including working through applications, eligibility, hearings and appeals, can be confusing, time-consuming and frustrating.  Our team has the experience and know-how to help you successfully navigate Medicaid and Medicare.Long Term Care Planning: We can guide you with a forward-thinking approach to Long Term Care.  Although the term Long Term Care is often mistakenly thought to exclusively mean long term care insurance coverage, a more accurate and holistic view is that Long Term Care should cover a broad range of strategic planning, including but not limited to long term care insurance, Medicaid, Veterans Benefits, and other resources that may be used to pay for Long Term Care needs.Call us today to schedule an appointment, 303-783-9600.

Colorado has a new law that requires mandatory reporting of abuse and exploitation of at-risk elders. (C.R.S. 18-6.5-108) In 2013, the general assembly expanded the law to create mandatory reporting requirements so that at-risk elders are afforded more protection under the law. Beginning on July 1, 2014, mandatory reporting shall take effect and it has penalties for those persons that fail to report abuse or exploitation of at-risk elders. An at-risk elder is any person who is seventy years of age or older.[i] Now when certain persons observe abuse or exploitation or if they have reasonable cause to believe that the at-risk elder has been abused or exploited, or even if they believe there is an imminent risk of abuse or exploitation, that person is required to make a report to a law enforcement agency within twenty-four hours of making the observation or discovery.Those persons required to report are a long list of professionals identified by the law including: medical and mental health professional, social workers, dentists, law enforcement officials, guardians and conservators, clergy (with some exceptions), caretakers, home health providers and professionals associated with care facilities, personnel at banks or financial institutions, fire protection personnel and others. These professionals, whether paid or unpaid, must report the abuse or exploitation to law enforcement. Willfully violation of this law is a class 3 misdemeanor. Reporting is not required if the person knows that another person has already reported the abuse or exploitation. Law enforcement must notify the county department and the district attorneys office within twenty-four hours of receiving the report and law enforcement shall complete a criminal investigation when appropriate. Immunity from suit and liability for damages is given to the person making the good faith report, except that no immunity is given to the alleged perpetrator of the abuse or exploitation.At-risk elders now have more protection because many more people in the elders life are required to make a report to law enforcement within twenty-four hours. The days of looking the other way, minding your own business or assuming that someone else is reporting the abuse or exploitation are gone now. A mandatory reporter that observes or has reasonable cause to believe that an at-risk elder has been abused or exploited is required make a report within twenty-four hours. This law penalizes a person for not reporting, whether they were working for the elder or not.Editors Note: Jennifer S. Gormley, Esq. is an elder law attorney and advocate for elders, at-risk adults and persons with disabilities. Ms. Gormley is also an Adjunct Law Professor at University of Denver Sturm College of Law where she teaches elder law. To contact Jennifer Gormley, please call 303-783-9600 or email, Jennifer@elderlawsource.com. The Law Office of Jennifer S. Gormley, P.C. is located in Greenwood Village, Colorado.