After Brooke Astor’s son, Anthony D. Marshall, was convicted of exploiting and defrauding his mother, we asked our viewers on the ElderLawAnswers site whether they felt he should serve jail time by being sent to jail. By a three-quarters vote, they say “yes,” he should go to jail.
The tally continues, so if you’d like your vote to be counted on this issue, click here.
The conviction of Anthony D. Marshall for the financial exploitation of his mother, Brooke Astor, as her physical and mental health declined in her late years puts in sharp relief what is often unclear when elder abuse is claimed against family members. What’s a gift, what’s payment for services, what’s theft, and what’s undue influence are often difficult to determine in the murky world of family relationships.
As a result, it can be difficult for prosecutors and others to decide for certain that financial or physical elder abuse has occurred and to bring charges against the accused family members. The result is that few cases are brought in these situations.
The Astor case demonstrates that prosecutions for elder abuse are not impossible and may encourage more prosecutors around the nation to bring similar actions. This should serve as a warning and, we hope, a deterrent to those who may take advantage of their older family members.
It also means that those who are caring for family members should make sure that they are not wrongly accused of elder abuse. If they are to receive payment, gifts or an inheritance in exchange for the care they provide, this must be documented. It is better that it be documented by an independent attorney and that all family members are aware of the arrangement so no disgruntled heirs come forward and make trouble in the future.
To read more about the Astor decision, click here.
As The New York Times describes in a recent article, the litigation over Brooke Astor’s estate and will is far from unique. Where there’s money, there are people who will use improper means to grab it. Where someone has dementia or is dependent on others for care and companionship, they may be induced to alter their estate plan.
Where a family member feels scorned for being left out of the will or left out socially, she may suspect undue influence where none exists. It can be psychologically necessary to believe that Mom was tricked rather than accepting that Mom loved you less or that some long term resentments were reflected in the will.
All of this can lead to litigation which can be expensive both financially and emotionally. In most cases, good lawyering can prevent such litigation, but not always.
Our firm is involved in a case where a woman left everything equally to her seven children. There’s no dispute over the finances. But the mother owned antiques, jewelry and other items of financial and sentimental value. She left a list saying who should receive what, which is what attorneys advise clients to do, and the executrix worked out a system for distributing what wasn’t on the list. Yet one daughter is challenging both the list and the system, which has led to considerable expense and delay.
In short, the best laid plans can avoid a lot of problems, but some may be unavoidable.