A British Columbia nurse was fined by the College of registered nurses in the amount of $17,500, plus ordered to pay investigation costs of $16,500 for financial abuse of an elderly couple, now deceased.
The nurses misdeeds included being the couple’s power of attorney, putting her name on title to their mobile home, paying for her dentistry, vision care and $1600 a month medications, all on top of her monthly salary.
The nurses college rather understatedly reported that she “failed to maintain appropriate boundaries in her seeking of substantial financial benefits from an informed client.”
A support worker who was supposed to protect the interests of two vulnerable men instead plundered their bank accounts – and spent their money on pet insurance, “dance equipment”, takeaway food and her weekly shopping.
In New Zealand, if a Lawyer wants to makes themselves a beneficiary of a clients Will, all the Lawyer has to do is to get another Lawyer to draft up the Will on their behalf, thereby circumnavigating Rule 5.10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
. Rule 5.10 of the RCCC provides as follows: “A lawyer must not draft or assist in drafting a provision of a will or other instrument under which the lawyer may take a benefit other than a benefit normally attached to acting in a professional capacity in respect of the will or instrument unless, before the execution of the will or instrument, the person concerned has taken independent advice.”
Additionally, Rules 5.8 and 5.8.1 of the RCCC provide as follows: 5.8 A lawyer must not accept a gift from a client if there is a possibility of the gift being or appearing to be inconsistent with the trust and confidence reposed by the client. 5.8.1 In any case where a lawyer proposes to accept a gift of a significant amount or value, the lawyer may do so only if the client has taken prior independent advice in respect of the matter.
Rules 5.8 and 5.8.1 is even easier to circumvent, as all a Lawyer has to do is nominate another party seemingly “unconnected” to the Lawyer to be named as the clients beneficiary of the Will.
Once the client passes on, and the Estate is paid to the “beneficiary”, and the “beneficiary” simply passes the Estate assets to the (now deceased) clients Lawyer.
The New Zealand Law Society does not seem to have anything within its investigative or sanctioning “toolbox” to stop NZ Lawyers engaging in such reprehensible behaviour.
The Illinois legislature was concerned about elderly individuals being taken advantage of or pressured into leaving bequests of money or property to non-relative caregivers. This led to a new provision in the Illinois Probate Act, 755 ILCS 5/4-a, Presumptively Void Transfers. This law, which only applies to transferable instruments executed after January 1, 2015, makes bequests to non-relative caregivers over $20,000 presumptively void.
In California, certain groups of people, including caregivers, are considered “prohibited transferees” under the California Probate Code. This means that if a caregiver is named as a beneficiary of a Trust or Will, there is a presumption that the Trust or Will was the product of fraud or undue influence.
In addition, if someone does attack or contest the validity of the Trust or Will in court, the caregiver will have the burden of proving that he or she did not use fraud or undue influence to coerce the client into designating him or her as a beneficiary—a difficult standard to meet in most cases.
Furthermore, if the caregiver is unable to prove to the court by clear and convincing evidence that the Trust or Will was not the product of fraud or undue influence, the court may order the caregiver to pay the costs and expenses of the court proceedings, including attorneys’ fees. That means the stakes are high for any caregiver looking to defend their gift under a Trust or Will.
In New Zealand, various Agency & Industry Codes of Conduct expressly forbid private or state-funded Caregivers and / or Community Support Workers from engaging themselves in the personal and financial affairs of their clients.
Trouble is, the Codes aren’t often enforced by the agencies that create them.
Laws, not Codes, is what NZ needs to fortify this gaping familial abuse hole.