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Is it elder abuse under the statutes and case law daughter

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Is it elder abuse under...
Is it elder abuse under the statutes and case law for a daughter to bring a foreclosure action when the mother is not behind in the payments in order to gain advantage in a trust contest when the daughter is 60 and the mother is 95?
Submitted: 1 year ago.Category: Estate Law
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5/23/2016
Estate Lawyer: CalAttorney2, Attorney replied 1 year ago
CalAttorney2
CalAttorney2, Attorney
Category: Estate Law
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
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Dear Customer,I am sorry to learn of this situation. While the details of this claim would need to be examined carefully in order to reach a conclusion as to whether all of the elements to a cause of action are met, based only on what you have posted here, there is at least a sufficient basis to warrant speaking to a plaintiff's attorney about this situation.I will caution you that while the basics of the case appear straightforward, this kind of case can get very complicated very quickly. Based on the fact that the law firm backed down promptly upon being informed that there was no basis for the foreclosure (there was no violation of the promissory note), the likely defendant in this action is going to be the daughter, and she may attempt to bring a defense of "defense of counsel" where you are going to run into an issue of attorney/client privilege which may prevent you from sorting out the details. Due to the complexity of these claims, I highly recommend that you retain a plaintiff's lawyer (also called trial attorneys). Fortunately the majority of these attorneys will provide you with a free consultation, and many will represent you on a contingency basis (they will advance the costs of litigation and legal services in exchange for a portion of your successful settlement or judgment). You can find local attorneys using the State and Local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).
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Customer reply replied 1 year ago
I do not believe my question has been answered. What does the elder abuse statute say exactly? In your opinion why do you think that there is elder abuse when a 95 year old vulnerable person is foreclosed upon?When a 95 year old vulnerable person is continually harassed to change her mind on a financial matter that would benefit the harrassers is that elder abuse Tennessee?Very truly yours,
/s/Douglas J. Callahan
___________________
Douglas J.Callahan
Attorney at Law
Michigan only
Estate Lawyer: CalAttorney2, Attorney replied 1 year ago
Dear Customer,I am going to "opt out" and allow another expert to follow up with you.Please do not post any further at this time as it will delay the next expert's ability to follow up.If you need any assistance in the meantime, please contact our customer service at: http://ww2.justanswer.com/helpThank you for using our forum, and I do wish you the best of luck.Bill
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
Attorney2
Attorney2, Attorney
Category: Estate Law
Satisfied Customers: 7,417
Experience: 29 Years in General Practice and Estate Planning
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Welcome to JA and thank you for your question.
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
For some reason the State that your question pertains to is not showing up. Which State?
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
I can see the jurisdiction is Tennessee. Just to clarify what the Tennessee elder abuse laws state with regard to a daughter trying to financially exploit her mother? Based on what you sated above the mother was not behind on any payments. Is that correct? I have written a letter to the law firm that foreclosed and advised them that there is no cause to foreclose on a vulnerable person when they are not behind on the Promissory Note obligation. The law firm backed down but grief and anxiety to our Mother was devestating.
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
There are both State and Federal law that address elder financial abuse and exploitation. Title 71 addresses these matters as set out below.Criminal Financial Exploitation LawsTenn. Code Ann. § 71-6-102 (2013)Title 71 WelfareChapter 6 Programs and Services for Abused PersonsPart 1 Adult Protection71-6-102. Part definitions.As used in this part, unless the context otherwise requires:(1) (A) "Abuse or neglect" means the infliction of physical pain, injury, or mental anguish, or the deprivation of services by a caretaker that are necessary to maintain the health and welfare of an adult or a situation in which an adult is unable to provide or obtain the services that are necessary to maintain that person's health or welfare. Nothing in this part shall be construed to mean a person is abused or neglected or in need of protective services for the sole reason that the person relies on or is being furnished treatment by spiritual means through prayer alone in accordance with a recognized religious method of healing in lieu of medical treatment; further, nothing in this part shall be construed to require or authorize the provision of medical care to any terminally ill person if such person has executed an unrevoked living will in accordance with the Tennessee Right to Natural Death Act, compiled in title 32, chapter 11, and if the provision of such medical care would conflict with the terms of such living will;(B) "Abuse or neglect" means transporting an adult and knowingly abandoning, leaving or failing to provide additional planned transportation for the adult if the adult's caretaker knows, or should know, that:(i) The adult is unable to protect or care for himself or herself without assistance or supervision; and(ii) The caretaker's conduct causes any of the results listed in subdivision (1)(A) or creates a substantial risk of such results;(2) "Adult" means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person's own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services; provided, however, that a person eighteen (18) years of age or older who is mentally impaired but still competent shall be deemed to be a person with mental dysfunction for the purposes of this chapter;(3) "Advanced age" means sixty (60) years of age or older;(4) "Capacity to consent" means the mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts. A decision itself to refuse services cannot be the sole evidence for finding the person lacks capacity to consent;(5) "Caretaker":(A) Means an individual or institution who has assumed the duty to provide for the care of the adult by contract or agreement;(B) Includes a parent, spouse, adult child or other relative, both biological or by marriage, who:(i) Resides with or in the same building with or regularly visits the adult;(ii) Knows or reasonably should know of the adult's mental or physical dysfunction or advanced age; and(iii) Knows or reasonably should know that the adult is unable to adequately provide for the adult's own care; and(C) Does not mean a financial institution as a caretaker of funds or other assets unless such financial institution has entered into an agreement to act as a trustee of such property or has been appointed by a court of competent jurisdiction to act as a trustee with regard to the property of the adult;(6) "Commissioner" means the commissioner of human services;(7) "Department" means the department of human services;(8) "Exploitation" means the improper use by a caretaker of funds that have been paid by a governmental agency to an adult or to the caretaker for the use or care of the adult;(9) "Imminent danger" means conditions calculated to and capable of producing within a relatively short period of time a reasonable probability of resultant irreparable physical or mental harm or the cessation of life, or both, if such conditions are not removed or alleviated. However, the department is not required to assume responsibility for a person in imminent danger pursuant to this chapter except when, in the department's determination, sufficient resources exist for the implementation of this part;(10) "Investigation" includes, but is not limited to, a personal interview with the individual reported to be abused, neglected, or exploited. When abuse or neglect is allegedly the cause of death, a coroner's or doctor's report shall be examined as part of the investigation;(11) "Protective services" means services undertaken by the department with or on behalf of an adult in need of protective services who is being abused, neglected, or exploited. These services may include, but are not limited to, conducting investigations of complaints of possible abuse, neglect, or exploitation to ascertain whether or not the situation and condition of the adult in need of protective services warrants further action; social services aimed at preventing and remedying abuse, neglect, and exploitation; services directed toward seeking legal determination of whether the adult in need of protective services has been abused, neglected or exploited and procurement of suitable care in or out of the adult's home;(12) "Relative" means spouse; child, including stepchild, adopted child or foster child; parents, including stepparents, adoptive parents or foster parents; siblings of the whole or half-blood; step-siblings; grandparents; grandchildren, of any degree; and aunts, uncles, nieces and nephews; and(13) "Sexual abuse" occurs when an adult, as defined in this chapter, is forced, tricked, threatened or otherwise coerced by a person into sexual activity, involuntary exposure to sexually explicit material or language, or sexual contact against such adult's will. Sexual abuse also occurs when an adult, as defined in this chapter, is unable to give consent to such sexual activities or contact and is engaged in such activities or contact with another person.Criminal Financial Exploitation LawsTenn. Code Ann. § 71-6-117 (2013)Title 71 WelfareChapter 6 Programs and Services for Abused PersonsPart 1 Adult Protection71-6-117. Willful abuse, neglect or exploitation prohibited -- Penalty.(a) It is an offense for any person to knowingly, other than by accidental means, abuse, neglect or exploit any adult within the meaning of this part.(b) A violation of this section is a Class E felony.https://www.justice.gov/elderjustice/prosecutors/statutes.html?state=TN "Elder AbuseElder abuse is a growing problem. The National Center on Elder Abuse (NCEA) defines elder abuse as "intentional or neglectful acts by a caregiver or 'trusted' individual that lead to, or may lead to, harm of a vulnerable elder. In many states, younger adults with disabilities may qualify for the same services and protections. Physical abuse; neglect; emotional or psychological abuse; financial abuse and exploitation; sexual abuse; and abandonment are considered forms of elder abuse. In many states, self-neglect is also considered mistreatment. What Should You Do If You Suspect Abuse?Concerned people, like you, can spot the warning signs of a possible problem, and make a call for help if an elder is in need of assistance. Most cases of elder abuse go undetected. Don't assume someone else has already reported a suspicious situation. And don't think that it's up to you to prove abuse. If something seems wrong, just report what you know to the proper authorities. Let them investigate.By law in Tennessee, everyone is a mandatory reporter. If you think an older adult is being abused, you are required to tell someone.Reporting Abuse: Who You Should TellEmergencies In an emergency, always call 911 first.Adult Protective Services (APS) 24/71.888.APS.TENN or 1.***-***-****You can also report online to Tennessee Adult Protective Services.Tennessee Domestic Violence Hotline1-***-***-****Tennessee Long-Term Care Ombudsman (For institutional abuse in a nursing home or long-term care facility.)***** *****State Long-Term Care OmbudsmanTennessee Commission on Aging and Disability502 Deaderick Street, 9th FloorNashville, TN###-##-####el:(###) ###-####ax:(###) ###-####oll Free:(###) ###-####DD:(###) ###-####mail:***@******.***"http://www.tn.gov/aging/topic/elder-abuse#sthash.ypK6bzFB.dpuf Since you stated the no money was owed the foreclosure is being used as a tool to financially abuse the elder person. Adult Protective Services should be contacted immediately to open an investigation.
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
The United States Department of Justice also has an Elder Justice task force that can take complaints at https://www.justice.gov/elderjustice/ This sounds like a criminal matter that needs to be reported the agencies set out above. Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you. If you would be kind enough to rate my service positively so I will receive credit for my work I would appreciate it. Thank you for using JA!
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
http://elder.findlaw.com/elder-abuse/elder-abuse-overview.html So many States were so slow in both criminal and civil prosecution of these cases. This links sets out some cases from Colorado. https://docs.google.com/viewer?url=http%3A%2F%2Fwww.courts.state.co.us%2FCourts%2FCourt_of_Appeals%2FOpinion%2F2013%2F13CA0492-PD.pdf I will also include California. http://www.schwartzfirm.com/resources/notable-recent-case-law/ Since they are rarely appealed for a variety of reasons they are not that easy to find.
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you. If you would be kind enough to rate my service positively so I will receive credit for my work I would appreciate it. Thank you for using JA!
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Estate Lawyer: Attorney2, Attorney replied 1 year ago
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