This column first appeared in the San Antonio Express-News on January 12, 2018.
Dear Mr. Premack: My mother is 85, still lives on her own in an apartment, and I see her nearly every day. Still, I can’t be there with her every minute. Last week, she answered the door and a “very nice young man” talked to her about a donation to a youth charity. She wrote him a check for $300 to his name at his request. I am certain she was scammed. The loss of the money hurts, but isn’t the end of the world. On the other hand, how can we legally avoid this kind of rip-off from hurting her? – J.E.
Scams against the elderly are all too common. You should report this scam to the local police department, and can make a report to the National Consumers League at www.fraud.org (where you can also learn tips for prevention).
You should also immediately call her bank to report the fraud. They may be able to stop the check before it is cashed. Calling them will also alert the bank’s fraud office to be on the alert for similar scams.
Additionally, there is a new Texas law that gives banks additional authority in an effort to handle scams. House Bill 3921 modified the Texas Finance Code and the Texas Securities Act, effective September 1, 2018. It allows a banker or broker to act when exploitation of a vulnerable adult is suspected. A “vulnerable adult” is anyone 65+, any adult with a substantially impairing disability, and certain adults receiving government benefits.
If a banker or broker has cause to believe that financial exploitation of a vulnerable adult exists, they must file a report with Texas Adult Protective Services. They must also inform a third party associated with the vulnerable adult (like a joint account holder, spouse, or adult child). Finally, the new law authorizes the bank or broker to put a hold on any transaction related to the exploitation, or on the entire account if the result will be to avoid exploitation. The hold can last for around ten days, which should give the vulnerable adult, the associated third-party, and the bank/broker time to determine what other actions are appropriate to avoid additional exploitation.
Additionally, you and your mother should meet with her estate planning attorney to discuss direct legal plans to avoid further scams. Action may take two forms:
First, your mother can structure her financial accounts so she does not have the ability to write a check. She can do this by working with her attorney to set up a Revocable Living Trust. She would place her accounts into the Trust, and appoint you (or a suitable alternative) as the daily manager of the Trust. You would be responsible for paying her bills, managing her finances, and seeing that she has all the necessities of a comfortable life. Because she has no access to her accounts, a scam artist would not be able to get anything from her. (A revocable living trust has the added advantage of helping her estate avoid probate court after she dies.)
Second, even if she does not want to set up a Trust, she could agree that she will not have a checkbook or cash at her home. Instead, she would have a credit card with a fairly low credit limit. If a scammer was so aggressive as to use one of the cellphone credit card machines on her, the charge could be contested through the card issuer. She could appoint you as Agent under her Durable Power of Attorney so that you can access her online records and help manage the credit card account.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.