Arizona Quitclaim Deeds by gsb91987

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									 (Victims suffering from Dementia, subject to
         Undue Influence or Duress)

    Arizona Fiduciaries Association’s
   “To Serve and Protect” Conference
Fiesta Inn Resort and Conference Center
            Tempe, Arizona
    February 21 - February 22, 2008
                                         Table of Contents                                Pages
I. Objective/Proactive Networking…..........................................….............…………. 1
II. Extent of the Elder Financial Abuse Problem………………………………………. 1-3
III. Main Problems……………………………………………………………………… 3
IV. Suspect marries victim……………………………………………………………… 3
V. Examples of Consent Statutes from Various Codes..………………………………. 4-5
VI. Deteriorating Health/Suicides..………………………………………………….. … 5
VII Deceased victims..…………………………………………………………………. 5
VIII. Homicides …………………….…………………………………………………. 5
IX. Check List - Before going to the location .................…......….............……………. 5-7
X. Life and Financial Profiling…………………………………………………………. 7-9
XI Multi-level timelines……………………………………………………………….. 10
XII. Media………………………………………………………………………………. 11
XIII. Conclusion ……………………………………………………………………….. 11
I. Objective:
The objective of this presentation is to provide proactive training on how to: recognize,
prevent, report, secure victim's assets, recover stolen assets, investigate, network with
multiple government and private agencies, and profile complex cases involving the attempted
theft, theft or embezzlement from the estates of vulnerable adults, who may suffer from
dementia, are subject to undue influence or duress. (These techniques were developed,
practiced in the field and court tested since 1992).
II. Extent of the Elder Financial Abuse Problem:
Ever since vulnerable elders and dependent adults have had assets, there have been individuals
to financially exploit them. Our elders are the fastest growing segment of our society and
they are also the financial backbone of our country’s economy. “We” are living longer and
saving more than ever before. But we as a society do not always recognize this population as
being at risk. There are a number of circumstances that put an elderly person at risk: Physical
and mental health issues, such as stroke, Alzheimer’s, depression, isolationism and other
causes still exist in spite of our best efforts to protect our seniors.
Elder abuse cases have a common theme: The victims generally live alone, may be in poor
health and in 95 % of our cases suffer from dementia or are subject to undue influence or
duress. These conditions make them at risk of being swayed into placing their entire estate in
the control of befriending suspects. Giving the appearance of being a “willing participant” to
the transaction, when they are actually a victim.
Training from medical experts in the field of dementia, undue influence and duress is
paramount for social workers, ombudsman, public guardians, investigators and prosecutors
assigned to elder abuse cases.
                                                -1-
The most common suspects are family members, in-home care providers, friends and
neighbors, but anyone in a position of trust can exert undue influence over a vulnerable
person. It can also be fellow church members, attorneys, accountants, befriending strangers,
ex-con caretakers, and predators who specifically target the elderly.

The suspects often isolate and/or relocate the victim in order to obtain complete control. The
suspects then create what we refer as a “civil mirage”, by coercing the victims into signing
powers of attorney, contracts, quitclaim deeds, wills, living trusts, adding their names onto the
victim's bank accounts and obtaining numerous credit cards under the victim’s name. In some
cases, the suspects marry the vulnerable elder as another means of obtaining total control of
their estate through “community property”.

Once in so-called legal control of the estate, the suspects operate as though they have a
license to steal. They withdraw the victim's life savings; obtain loans on the property,
making it subject to foreclosure, and max out the credit cards. In some cases, the suspects
utilized a computer to electronically transfer funds from the victim’s account and may even
file bankruptcy on behalf of the unknowing victim to conceal the theft.

Ultimately, the elder becomes a “double victim”. First, by not having the benefit of their
assets which were depleted by the suspect, and secondly, the victim is responsible for any
accumulated debt and tax penalties.

Since the suspect has influence and control over the victim and their estate, many reporting
persons are automatically misinformed by authorities that “it Is a civil matter,” when in fact,
they are “hidden and silent” crimes.

Due to the victim’s age and poor health and the suspects’ ability to quickly deplete the
estate, timely preliminary investigations and court proceedings are extremely critical.
Unlike other financial crime victims, these victims are not able to financially or many
times emotionally recover.

As a result of being swindled, the victim may go into depression. They start out as
productive, self-sufficient citizens and ultimately end up relying on government and/or
family aid for the rest of their lives. Financial exploitation is also related to more elder
homicides and suicides.




                                                -2-
Our mission at LAPD was to proactively prevent and investigate elder and dependent
adult financial exploitation by networking with multiple government and private
organizations, in order, to maximize resources, utilize experts from different fields and
stop the exploitation during the course of an investigation. While at the same time,
addressing the elder or dependent adults long term needs to prevent them from falling
victim again.

From 1987-1999, along with members of the Los Angeles County Area Agency on Aging
“Financial Abuse Specialist Team” or “FAST, our unit (Elder Person’s Estate Unit-EPEU)
 prevented the loss of and/or recovered over $91,000,000 in victim’s assets (e.g. homes,
vehicles and life savings). EPEU also provided investigative assistance to homicide units and
in two cases obtained evidence supporting the motive of “financial gain”, enabling the Los
Angeles District Attorney’s Office to file special circumstance and seek the death penalty.
This only reflects LAPD cases. It does not include the millions of prevented loss or recovered
or the outcome of investigative assistance, while networking with law enforcement and social
worker agencies across the country. (The LA FAST team was the first in the country
established in 1993 and is coordinated by WISE Senior Services in Santa Monica, California).

III. Main Problems with Investigation:
1. Suspect(s) have influence/control over the victim. (Most victims have diminished mental
   capacity or are subject to undue influence.)
2. Suspect(s) have the evidence/documents depicting the misappropriation of the estate.
   (bank statements, cancelled checks, wills, living trusts, loan documents, credit card
   invoices).
3. The victims are, often, unable to testify to elements of the crime.
4. Law enforcement and prosecutors “automatically” view the incident as a “civil matter”.
5. Determining victim’s ability to give “consent”.

IV. Suspect Marries Victim;
 In some cases, prosecution was successful on matters, in which, the suspect married the victim.
The Elder Person’s Estate Unit detectives were able to prove through the victim’s physician
that the victim had diminished mental capacity, at the time and before the marriage, and could
not have given consent to the marriage or any of the subsequent transactions regarding the
victim’s estate.




                                              -3-
V. Examples of Consent Statutes from Various Codes:
  a. California Jury Instructions Code (CALJIC) 1.23-“Consent”-Defined (Via
      Special Instruction:
To consent to an act or transaction, a person (1) must act freely and voluntarily and not under
the influence of threats, force or duress; (2) must have knowledge of the true nature of the act
or transaction involved; and (3) must possess sufficient mental capacity to make an intelligent
choice whether or not to do something proposed by another person. (Mere passivity does not
amount to consent.). Consent requires a free will and positive cooperation in act or attitude.
  b. Probate Code Section 811-The Finite Mental Function Deficit List:
A determination that a person is of unsound mind or lacks the capacity to make a decision
or do a certain act, including, but not limited to, the incapacity to contract, to make a
conveyance, to marry, to make medical decisions, to vote, or to execute wills or trusts,
shall be supported by evidence of a deficit in at least one of the following mental
functions, subject to subdivision (b):
(1) Alertness and attention, including, but not limited to, the following:
    (A) Level of arousal or consciousness.
    (B) Orientation to time, place, person, and situation.
    (C) Ability to attend and concentrate.
(2) Information processing, including, but not limited to, the following:
    (A) Short-and long-term memory, including immediate recall.
    (B) Ability to understand or communicate with others, either verbally or otherwise.
    (C) Recognition of familiar objects and familiar persons.
    (D) Ability to understand and appreciate quantities.
    (E) Ability to reason using abstract concepts.
    (F) Ability to plan, organize, and carry out actions to one’s own rational self interest.
    (G) Ability to reason logically.
(3) Thought processes. Deficits in these functions may be demonstrated by the presence
    of the following:
    (A) Severely disorganized thinking.
    (B) Hallucinations.
    (C) Delusions
    (D).Uncontrollable, repetitive, or intrusive thoughts.

(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the
    presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear,
    panic, depression, hopelessness or despair, helplessness, apathy or indifference, which is
    inappropriate in degree to the individual’s circumstances.



                                                 -4-
   c. Civil Code Section 39(b):
  (b) A rebuttable presumption affecting the burden of proof that a person is of unsound mind
shall exist for purposes of this section if the person is substantially unable to manage his or
her own financial resources or resist fraud or undue influence. Substantial inability may
not be proved solely by isolated incidents of negligence or improvidence

VI. Deteriorating health/Suicide: Often, victims become despondent and gravely ill, as a
result of being financial exploited. While others, are unable to cope with the knowledge that
their entire estate has been depleted and commit suicide.

VII. Deceased Victim:
In some cases, prosecution was successful on matters, in which, the crime was not discovered
until after the victim’s death. The Elder Person’s Estate Unit detectives were able to prove
through the victim’s physician that the victim had diminished mental capacity during the time
of occurrence. Since it is a theft or embezzlement of the estate, the heir(s) is/are the victim(s).

VIII. Homicides:
More elders are being targeted (murder & homicide via neglect) for their estates. There have
been cases where the caretaker had the victim sign a new will or living trust leaving their
entire estate to the caretaker. Once beneficiary of the estate, the suspect may neglect to
provide victim’s needed care (proper diet and/or medication), which becomes a “major
contributing factor” towards the victim’s death. These matters often appear to be “natural
deaths,” when they are, in fact, concealed homicides.

IX. Check List - Before Going to the Location:
Learn as much as you can before going to the location (e.g. Calls for service by: police
[domestic violence, abuse, neglect, home used as dope lab], paramedics [abuse, neglect,
falls, broken bones], health department [cited for unhealthful living conditions-cluttering],
fire department [cited for fire hazard/unkempt residence/yard], animal regulations [cited for
multiple neglected pets].
1. Attempt to learn if suspect(s) reside with the victim, prior to proceeding to the victim’s
residence.
2. If suspect(s) resides with the victim and refuses entry and/or interferes with the victim’s
interview, call local police and inform them of your investigation. Officer(s) can standby to
maintain the peace, while conducting your well check. If the suspect interferes, officers can
take appropriate action.
3. Prepare questions to be asked prior to the interview.
4. Interview victim during morning hours, when possible. (Many elders become tired and
sleepy in the afternoon). Please note: Some elders are “night owls”, and may start their day
near noon.
                                                 -5-
5. Interview victim alone, with no distractions. If the suspect(s) is at the location offer to
interview them alone, as well. Finally, interview the victim and suspect(s) together. (This
technique often depicts undue influence on the video or audio recording).
6. Be patient. Take your time. Do not schedule your interviews to close to one another. It
may require more than one interview to obtain the information.
7. Take advantage of the unannounced visit. This is your opportunity to obtain information
before the suspect(s) can create an alibi.
8. Determine if a “caretaker” or position of trust relationship exists between the victim and
suspect(s).
9. Determine if victim has family members and or responsible friend who is in a position to
manage victim’s affairs.
10. The victim’s mental condition: Look for displayed signs of diminished capacity
(confusion, forgetfulness, use of medications) and undue influence (reliance on suspect.
Victim would rather put up with suspect than have suspect arrested).
11. Determine if victim has a physician. Attempt to interview the physician regarding victim’s
ability to give consent. Obtain written report and physician‟s curriculum vitae, when possible.
Often, family members and/or victim’s attorney have access to this information and can provide
it to you.
     a. If the victim is mentally competent and clear as to what occurred they can testify to the
        elements of the attempted theft, theft or embezzlement.
     b. If the victim is mentally incompetent or displays signs of diminished mental capacity,
        contact family members, family friends, people close to the victim who may know the
        location of victim’s physician in order to obtain victim’s mental evaluation report.
     c. If the victim does not have a physician or has not seen his/her physician in a long time,
        consider having the victim mentally assessed via their own physician or a University
        Neuropsychiatry Department.
12. Determine the extent of victim’s estate; including but not limited to-
     a. Real Estate: Current residence, rental property, undeveloped land, and property located
         out of state.
     b. Bank accounts: Checking and savings. Determine balances and history of activity,
         when possible.
     c. Certificate of deposit (CD): Determine maturity date and if suspect(s) cashed or
         attempted to cash before maturity date.
     d. Stock and bonds: Number of shares, local and/or out of state.
     e. Home furnishings: Determine, if recent yard sale or “movers,” disposing of victim’s
         furnishings.
     f. Personal belongings.
     g. Vehicles. Any recent transfers of title.


                                               -6-
13. Determine what documents were signed by the victim, placing the estate in the suspect(s)
control. (e.g. power of attorney, quitclaim deed, will, living trust, bank signature cards, safe
deposit box, credit card applications, loan applications, or vehicle pink slips).
14. Determine if the victim has a home computer and utilizes it for financial transactions
and online store purchases. Determine who has access to victim‟s computer.
15. Determine the “numbers” connected to the victims name (i.e. credit cards, phone cards,
    ATM cards, calling cards, etc.). Determine the current status and history of the cards
16. Forgery.
    a. If forgery was the method used to commit the attempted theft, theft or embezzlement,
        the incident will be investigated by local authorities as a forgery. The elder financial
        theft statutes can be filed as an additional charge.
    b. Suspect(s) often have the victim sign a power of attorney which authorizes them to
        sign the victim’s signature. If so this would not be a forgery.
    c. Remember, the power of attorney does not negate violations of theft or embezzlement.
        (It is, merely, the instrument used to complete the theft or embezzlement.)
X. Life and financial profiling: (Developed by LAPD Detectives Chayo Reyes and Dave
Harned in 1992). This interview technique has proven beneficial in a number of ways:
   a. Elders love to share their life experiences. This conversation is non threatening to the
       victim. (Many times the elder feels that "finally someone wants to listen to me.")
   b. Emotional barriers and reluctance are gradually lowered, and replaced with feelings of
       caring and trust. Enabling the victim to be more informative (and disclose more than
       initially suspected.)
   c. A long term memory assessment is being conducted without the victim realizing it.
Profiling has proven to be one of the most effective methods to obtain and organize Life and
Financial information from victims and suspects to determine:
   1) A person's right of self determination.
   2) Diminished mental capacity, undue influence, or duress.
   3) A better understanding of the circumstances leading to the current case under
        investigation.
   4) Victim's vulnerability and needs.
   5) A motive for the victim and/or suspect to enter certain transactions.
   6) Location of family members.
   7) Location of assets.
   8) A change in the victim's life & assets.
   9) A change in the suspect’s life & assets.
  10) Location of evidence to prove or disprove a case.



                                                -7-
Financial profile: A focus on financial information, during different periods in a persons life.
(Teenager, young adult, adult, middle aged adult, elder adult). Attempt to obtain as much
life and financial profile information on the suspect.

The suspect’s profile may provide the motive (i.e. costly divorce, work layoff, sick child, vices,
criminal history, etc.) and, also depict suspect’s knowledge (or should have known) of victim’s
diminished mental capacity, or vulnerability to undue influence, and duress. Profiling is
crucial to, effectively, obtain available information needed to bring these complex cases to
a successful conclusion.

Information regarding the elder/dependent adult’s entire life history. Including: How they
earned and managed their finances during different times of their life.

The following are areas of information to explore, but not limited to:
   1) Place of birth.
   2) When did they locate in our area.
   3) Brothers/sisters. (How many? Where are they?)
   4) Children (Names, ages. Where are they?)
   5) Grandchildren/Great Grandchildren (Names, Ages. Where are they?)
   6) Other relatives (Who are they? Where are they?)
   7) Education (High school, vocational school, college, degrees)
   8) Jobs as teenager, young adult, adult, middle aged adult, elder adult.
   9) Military.
  10) Married (How many times? Divorced? Widowed/Widower? How long?)
  11) Assets (When obtained): Home, vehicle, bank accounts, credit cards, income
       property, vacant lots (here and out-of-state).
  12) Who initially managed/controlled assets? (victim, spouse, lawyer, CPA).
  13) Who managed/controlled assets at different times in life?
  14) Who currently manages/controls assets? (suspect, new lawyer, new CPA).
  15) Who managed the home finances?
  16) Who currently manages home finances?
  17) Bankruptcy.
  18) Failing business.
  19) Stock market loss.
  20) Active life (Sports/hobbies/travel).
  21) The last time they were out of the residence.
  22) The last time they drove.
  23) The last time they “completed” a check.
  24) The last time they prepared a meal.

                                                -8-
25) Have they recently signed any documents.
26) Vices (Gambling, drinking, etc.)
27) Health history (Who escorted victim to doctors appointments?)
28) Medications.
29) Deaths (family, friends, pets).
30) New person(s) in victim’s life.
31) Power of Attorney, Will, living trust, quitclaim deed, credit cards, ATM card, bank
    books, etc.
32) Home computer? Who has access to password? Internet financial transactions?
    Banking? Stock? Internet purchases? Etc.




                                          -9-
XI. Multi-level timelines:
A visual aid to document dates & times of pertinent events, including victim(s), suspect(s),
witness(es) and supportive evidence.
                 Date
Victim’s Mental (Time)               July 30,„03
Assessment____ _!            !            !      !            !           !             !
Health History    !          !            !      !             !          !             !
Information     Event                Dr. Singer
                                     Diagnosed
                                     Alzheimer‟s
                       Feb 2,’03                         Nov 17,‟03
Victim              !      !              !       !           !           !             !
Life & Financial    !!     !              !       !           !           !             !
Profile Information     Spouse                         Cashed $25,000
                         Died                          CD w/Penalties
                                                       from Teacher’s
                                                       Credit Union-
                                                       Buena Park
Suspect
Victim’s Neighbor             Mar 28,’03                      Nov 18,‟03
Since 1998          !              !              !      !         !         !          !
Life & Financial    !              !              !      !         !         !          !
Profile Information           Began helping                   Deposit-
                             Vict w/pay bills              $25,000 cashier’s
                                                           Check from Vict
                                                           In own Acct-Western
                                                           Bank-Culver City
Witness
Vict’s Bank Mgr            Feb/Mar,’03       Mar/Nov.’03           Nov 18,’03 Nov 20,‟03
Since 1990           !          !          !      !                    !           !____
                     !          !          !      !                    !            !
                         Noticed Vict           Vict               $25,000 CD Bank Mgr
                       Despondent/confused accompanied             cashed on  returned.
                       after spouses death   by Neighbor           Bank Mgrs  Learned of
                                                                   day-off    $25,000
                                                                               Transaction
                                                                               called PD. Susp
                                                                               on bank video.
                                                -10-
XII. Media:
In some cases, the media was provided information regarding a suspect’s or suspect
companies method of operation, in order to locate additional victims and to warn the public,
in an effort to prevent additional losses.

XIII. Conclusion:
As a result of our fast growing elder/dependent adult population, the abuse of our vulnerable
adults will be an increasing problem and major concern for social workers, law enforcement,
prosecutors, financial institutions and health care professionals.

There is a nationwide lack of training, expertise and resources to properly investigate,
prosecute and litigate these cases. For example, most states address dementia, but many lack
legislation to address consent by victims subject to undue influence or duress.

It is imperative that such matters involving vulnerable adults suffering from dementia, subject
to undue influence or duress be handled in a proactive networking approach with the same
attention, sensitivity and resources given to juvenile and domestic violence crime victims.
In hope of making a positive difference in the lives of those we are sworn “to protect and to
serve”.



                                 Chayo Reyes, Ret. LAPD Detective
                                 Founder/Supervisor-LAPD’S, Elder Person’s Estate Unit,
                                 Member-National Committee for the Prevention of Elder
                                 Abuse, Washington, DC and (The former) UC Davis-
                                 Medical Training Center-Elder/Dependent Adult Abuse
                                 Advisory Board, Sacramento, CA




                                               -11-

								
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