Elder Law: Real Estate Fraud

I recently read an article in Lawyers USA titled "'Friends' cheat elderly couple out of dead son's farm." The title of the article caught my attention right away for reasons my immediate and extended family might appreciate. As I read the article, the facts seemed eerily similar to a situation we were forced to deal with in our family a few years back. The facts stated in the article are as follows:

David Lenstrom (presumably in his 40s) owned a farm in Wisconsin valued at approximately $800,000. He had two friends Matthew and Catherine Simpson (husband and wife). David died of prostate cancer in December, 2001, leaving his farm to his elderly parents. When David died, Catherine Simpson quit her job to "spend time with" her deceased friend's aging parents. The article states that the Simpsons then proceeded to "isolate the elderly couple" from family and other friends.

In about 2005, David's elderly father found out that he too had prostate cancer and would probably soon pass away. The Simpsons learned of David's father's condition and convinced him to sell them the farm for $200,000 (about 1/4 the real value of the farm). In exchange for the reduced price of the farm, the Simpsons promised to "do 'everything in [their] power to maintain the quality of [David's parents'] lives on the farm' and that the land sale contract would be null and void if they could not do so." Imagine the elderly parents trying to enforce that provision in court.

David's elderly father (concerned about his aging wife upon his passing) sold the farm to the Simpsons. Fortunately, concerned family members became involved, hired an Elder Law attorney and sued the Simpsons to reverse the transaction. The court agreed with the concerned family members, reversed the transaction concluding that the Simpsons "'ingratiated' themselves to [the] elderly couple in order to persuade them to give away their farm." Justice seems to have prevailed.

Act Immediately
If you encounter circumstances similar to those above, find an Elder Law attorney immediately. I can say this based on personal experience. While in my first year of law school my Contracts professor related an account similar to the one above. The account reminded me of a situation our family was then going through with one of our elderly family members.

Upon hearing my professor's account, I approached the professor and he gave me the name of an Elder Law attorney. I told him I would rather wait until I graduated and handle the case myself. He discouraged this, reciting the adage about the person who represents himself having a fool for a client. He also reminded me that the statute of limitations might run before I was out of law school. I bought the latter argument.

A week later our family contacted the Elder Law attorney, suit was filed and our family won. As it turned out, had we waited about 3 more months to file suit the statute of limitations would have run. Because we acted when we did justice also prevailed in our case.

Of course, if you are the guy stealing property from the elderly you may disagree with my take on justice prevailing. If so, "[insert expletive here] you!" and don't come back to my blog you thief.

You may also be interested in my article on Adverse Possession.

Nursing Home Abuse: Legal Remedies

A friend of mine is a nurse who primarily works with elderly patients who have suffered heart attacks and strokes. She recently told me about a patient she tended on one of her night shifts. The patient was an elderly man who had been sent to the hospital from a local nursing home. The man had had a heart attack; but that is not why I mention this. It was apparent to my wife that the man had not been tended to properly while at the nursing home. He had bed sores on his backside, his hygiene was poor and it appeared that he had been both neglected and abused at the nursing home. I asked her whether this was the first time she had seen something like that. She said most of the patients who came from that nursing home were in the same condition. It is my understanding that the nursing home has since been shut down due to lawsuits.

The elderly are often victims of this type of abuse. Not wanting to be a burden on their children, they choose to move into nursing homes for care and protection. Most of the time nursing homes provide the care and protection the elderly are seeking. But this is not always the case. It is not uncommon for an elderly person to be physically and mentally injured by the negligent or intentional acts of their caregivers. More often than not the abuse or neglect is the result of (1) poorly qualified and inadequately trained staff; (2) staff with a history of violence; (3) not enough staff on duty; (4) the isolation of residents; and (5) the reluctance of residents to report abuse out of embarrassment or fear for their safety.

Legal Steps To Take
If you are a victim of nursing home abuse or you suspect a loved one may be a victim of nursing home abuse there is something you can do about it. Among the actions you may want to take are:

(1) An investigation by an adult protective services agency. This will provide the victim immediate help and relief and prevent further harm.

(2) A civil lawsuit for damages. A nursing home can be held liable for negligence if the injured party can show: (A) that the nursing home's owner or employees breached a duty of care owed to the victim; (B) that the victim's injury was caused by this breach; and, (C) that the nursing home owner's or employee's conduct caused the injury. These elements are obviously legal terms of art and should be discussed with an attorney who specializes in nursing home abuse law. The nursing home may also be liable for breach of contract for failing to abide by the "care of resident" provisions of the standard nursing home contract.

(3) Criminal prosecution to punish the individual(s) responsible for the abuse. Many states provide criminal penalties for the abuse or neglect of nursing home residents. Some states even have enhanced penalties for crimes committed against the elderly. Failing to provide residents with sufficient food, maintain standards of resident hygiene, prevent bedsores from occurring, or the unjustified use of physical restraint or force against nursing home residents may be enough to prove criminal neglect or abuse.

I hope this information is help and we can do our best to eliminate nursing home abuses.

How To Find An Attorney

When most people want to hire an attorney the first thing they do is open up the Yellow Pages and scan through hundreds (if not thousands) of attorney names or ask a friend for a referral. 

That is not a good way to hire an attorney. 

First, any attorney willing to pay for it can have his name and picture blown up as big as he or she would like. There is no official ranking system or gauge to determine which of the numerous attorneys is the most capable for the price they are charging.

Second, when you ask a friend to refer an attorney you are really narrowing the field of potential candidates to individuals your friend may know. 

In most instances, when an attorney refers you to another attorney he is paid a fee for the referral. Money can really influence who gets the referral. Again, there is still no ranking system or gauge.

The best way to find an attorney is to go to martindale.com. Martindale-Hubbell has a system of ranking attorneys and groups attorneys into city and area of practice. 

An AV rating is the highest rating an attorney can receive. It is a big deal in the legal profession to have Martindal-Hubbell rank an attorney as AV. 

The next ranking is BV, then CV and so on. Martindale-Hubbell will also tell you whether an attorney is trial certified. This means the attorney has actually conducted numerous trials and has met certain other important criteria. 

This can be a benefit to you for purposes of settling your case prior to trial because non-trial certified attornies are often reluctant to take a case to trial against an attorney who is certified.