Coeur D’Alene, Kootenai County, Idaho Elder Abuse VP Task Force ™ Article

Elder Estate Planning Abuse Public Safety & Awareness Blog

Posted on July 12, 2017September 11, 2017 by Cease Elder Abuse

Contributing Advocate Public Safety Educational Alert

 

OVERVIEW

 

Summary Definitions of Idaho Code §§ 18-1505 and 39-5302 (2000).

“Abuse” under § 39-5302 and § 18-1505 means intentional or negligent infliction of physical pain, injury, or mental injury (intentional isolation of family members is emotional abuse/mental injury).

“Neglect” under § 39-5302 includes self-neglect and means the failure of a caretaker to provide food, clothing, shelter, or medical care reasonably necessary to sustain the life and health of a vulnerable adult, or the failure of a vulnerable adult to provide those services for himself (not taking care receiver to Hospital after she has a Heart Attack is Neglect see 4/2015 dates below).

“Neglect” under § 18-1505 means failure of a caretaker to provide food, clothing, shelter, or medical care to a vulnerable adult, in such a manner as to jeopardize the life, health and safety of the vulnerable adult (serving alcohol daily to care receiver against first doctors orders is neglect when alcohol is a life endangering toxic poison due to alcoholic cardiomyopathy).

“Exploitation” under § 39-5302 and § 18-1505 means an action which may include, but is not limited to, the misuse of a vulnerable adult’s funds, property, or resources by another person for profit or advantage (taking monies, lying to change Will and taking a persons “sole” revocability and amenability rights on their assets via Trust document chanceries drafted while client/care receiver is ill and intentionally isolated is exploitation).

“Vulnerable adult” under § 39-5302 and § 18-1505 means a person 18 years of age or older who is unable to protect himself from abuse, neglect ,or exploitation due to physical or mental impairment which affects the person’s judgment or behavior to the extent that he lacks sufficient understanding or capacity to make or communicate or implement decisions regarding his person.

“Caretaker” under § 39-5302 and § 18-1505 means any individual or institution that is responsible by relationship, contract, or court order to provide food, shelter, or clothing, medical or other life-sustaining necessities to a vulnerable adult.

“Emotional Duress” Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage )[1] is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted the emotional distress by behaving in a way that was “extreme and outrageous”.[2]

  • 15-12-116. JUDICIAL RELIEF – POA Abuse Remedy
  • 18-7906. (MENANCING) – Stalking in the second degree
  • 478-101 COLLUSUION – Anti-trust Act

Related Acts/violations- The Elder Abuse Act defines “neglect” as: The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

Those in Legal Confidential Relations with vulnerable person suffering  illness, physical incapacity, memory impairments (diagnosed MCI) and related vulnerability repeatedly violated Idaho Code(s): § 18-1505, § 39-5302, POA-Trustee adherence to Fiduciary Laws, I.R.P.C Rule(s) 1.1, 1.4, 1.8, 1.14, 1.16, 4.1, 4.2, and 4.4 and Circular 230; Section 10.5.

Self-neglect often accompanies dementia and mental health problems in older people it constitutes a risk factor for or sign of elder abuse and neglect inflicted by others—in effect, a forensic marker. Self-neglect may be a risk factor in that it makes victims more vulnerable to and less able to ward off mistreatment by others who might prey on them. Similarly, as capacity for self-care decreases, dependence on others increases, and if potential caregivers are either unable or unwilling to provide assistance, then the risk for being abused and neglected by caregivers increases. Conversely, someone who has been victimized by abuse or neglect may become depressed and in turn lose the desire or capacity for self-care. Thus, self-neglect also may be a forensic marker that abuse or neglect has been committed by another person.

Where such neglect is proven by clear and convincing evidence, and the defendant has been guilty of recklessness, oppression, fraud or malice in the commission of the neglect, the plaintiff may recover attorney’s fees and costs, and other heightened remedies. In other words, the Act describes (1) elder abuse, and (2) reckless, oppressive, fraudulent and/or malicious elder abuse. Only for the second category is a plaintiff entitled to the heightened remedies under the Act.

Financial & Contractual Capacity: When vulnerable person is also the estate benefactor and  not aware of, nor informed of all the negative consequences such as; 1) Being unaware of Durable POA active status during Trust Drafting of 2) exploitive Majority-Ruled Revocable Trust with 3) Canadians as Trustees on domestic Trust, 4) allocating her Will Disposition to exploitive Trustees who committed 5) breach of duties via 6) Fraud, 7) Mediation Deception & 8) substantial self-dealing while not having any 9) duty of care to fulfill her long-term intentions on the legal documents she had been signing since 10) her illness, memory-impairments and dependence on 11) untrustworthy confidential relationships & their inherit conflict of interest via the many roles/responsibilities/liabilities of such multiple positions of Trust: Caretaker/POA/Trustee also being an heir/beneficiary & Estate Planning Attorney/Limited Financial POA – G/C Attorney working in collusion with Caretaker/POA/Beneficiaries/Heirs.

Contractual capacity in general is not as precisely defined as testamentary capacity. “Statutes and court decisions have done little to move beyond the vaguest description of general competence” (p. 221) (2) “Usually individuals are considered competent to contract if they understand the nature of the contract and its consequences” (p. 216). (3) To make a valid contract, a person must know what he or she is doing, its meaning, and its consequences.

The 8 states ranked lowest in the Elder Protection Statutes (WalletHub study) are:

South Carolina: 12.49.
Wyoming: 18.18.
California: 18.93.
Rhode Island: 28.31.
South Dakota: 28.37.
New Jersey: 29.72.
North Dakota: 33.61.
Idaho: 34.70.

Undue Influence Cases in Idaho

“In Idaho, undue influence is recognized where sufficient evidence has been presented that indicates a testator’s (testatrix’s) free agency has been overcome by that of another.” In re Estate of Roll, 115 Idaho 797, 799, 770 P.2d 806, 808 (1989). “[A] rebuttable presumption of undue influence is created where a beneficiary of the testator’s will is also a fiduciary of the testator.” In re Estate of Conway, 152 Idaho 933, 939, 277 P.3d 380, 386 (2012). Once the presumption is applied, the proponent of the instrument bears the burden of rebutting the presumption.

To rebut the presumption, the proponent must come forward with that quantum of evidence that tends to show that no undue influence existed. Once that burden has been met, the matter becomes one for the trier of fact. The existence of undue influence will be determined accordingly, and on appeal such determination will only be disturbed if not supported by substantial, competent evidence.
115 Idaho at 799, 770 P.2d at 808 (citing King v. MacDonald, 90 Idaho 272, 280, 410 P.2d 969, 973 (1965)).
In Estate of Conway, this Court discussed the application of the presumption. There, a niece of the testator challenged her aunt’s will as being the product of undue influence. 152 Idaho at 936, 277 P.3d at 383. She argued that the presumption of undue influence was triggered because one of the will’s beneficiaries was also the guardian of the testator. Id. at 939, 277 P.3d at 386. Although the trial court erred when it found that the beneficiary in question was a co-guardian, this Court held that such a finding would not affect the presumption, stating “[t]here is nothing in this Court’s jurisprudence to suggest that the presumption of undue influence is affected by the particular nature of the fiduciary relationship.”

The Third Restatement of Property explains that “[a] donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.” Restatement (Third) of Property (Wills & Don. Trans.) § 8.3 (2003). A comment to this section of the Restatement discusses when a presumption of undue influence will arise. “A presumption of undue influence arises if the alleged wrongdoer was in a confidential relationship with the donor and there were suspicious circumstances surrounding the preparation, formulation, or execution of the donative transfer․.” Id. Comment

 

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Advocates For Change

CPSN advocates are not attorneys
and do not offer legal advice or legal counsel. If your circumstance is an
emergency call 911.  CPSN advocates are victims, family
members of victims or friends of persons whom have been physically,
financially, mentally & emotionally abused and damaged by professional
negligence, malpractice and intentional financial exploitation.

Founded in
March of 2017, as a means to assist victims, damaged by negligent or unethical
attorneys (attorneys who do not follow the ABA Model rules, Rules of Civil
procedure, etc.), guardians, conservators, bankers, primary care
providers, accountants, investment managers, physicians, and health care
provider’s ethical misconduct.  CPSN provides educational
resources, evidence sharing platforms and shared experiences to aid individuals
and families acquire experienced-based knowledge to empower those whom need to
assist elder abuse victims, family court litigants and vulnerable persons
damaged by the collusion of corrupt white-collar professionals.

As a
collective of common-focused advocates we also work with other nonprofits
 to  expose the systemic failures in the adversarial litigant system
that often fails to police itself and the courts via the standards set for by
the American Bar Association Model Rules and Judicial Canon rules, while
simultaneously providing a conduit for educating the media, state &
 federal lawmakers, and the public about repeating  case violation
patterns and the need for major system reform to stop the epidemic of
vulnerable person exploitation, professional negligence and abuse.

CPSN provides funding and volunteer
resources for the development of public safety tools.

VP Task Force; Public Safety Tools
VP Task Force; Public Safety Tools – Integrated Software Suite to Profile and Track White Collar Ethical Violations, Civil Breeches, Crime and Collusion Networks.

VP Task Force ™ is an on and offline public safety social technology application suite. The software was developed as a documentation, investigative, public alert and educational system to profile, track, research white-collar crime, white-collar criminal patterns, vulnerable person exploitation, negligence, abuse, malpractice and collusion networks.

 

Software Developed in Coeur d’Alene, Kootenai County, Idaho.