(Photo Illustration - MetroCreativeConnection - Legal-Ease - Gerald W. Townsend)

In 2016 the West Virginia Legislature enacted West Virginia-55-7J to protect the elderly (defined as people over age 65), and other incapacitated adults from financial exploitation.

The legislature’s intentions were good. The results are not always so good.

That law provides that an aged or incapacitated person or anybody acting on that person’s behalf can file a petition in court against the alleged exploiter, asking the court to impose a protective order to stop the exploitation by ordering the alleged exploiter to return what was taken, stop the exploiting behavior, freeze the alleged exploiter’s assets so there will be funds with which to pay back the abused person, and granting the abused person a judgment against the exploiter for either two or three times the amount exploited. This all sounds reasonable and like a good thing to do to the exploiter.

To stop the exploitation in its tracks, the law allows the court to enter a preliminary order without any notice to the exploited person telling him that a petition has been filed on his behalf. While the idea sounds good, the devil is in the details, and surprising results can occur.

Consider the case of Mr. Nichols (not his real name), Mr. Nichols is a spry 92 years old. He is in good health, lives independently, from all appearances still has his faculties and clear mind, and drives his own car. He has two sons who I will call “Ted” and “Jerry”. In the past, Mr. Nichols and Ted had a serious falling out, as a result of which Mr. Nichols had cut Ted out of his will, removed Ted as a death beneficiary on Mr. Nichol’s life insurance and investment accounts, and in every other way had separated himself from being involved with Ted. After that, Mr. Nichols had focused his attention, affection, and generosity on his other son “Jerry” and Jerry’s children.

Recently, totally behind Mr. Nichol’s back and without Mr. Nichols knowing about it, as allowed byWVCode-55-7J,Ted filed a petition in

court, alleging that Jerry and members of Jerry’s family were financially exploiting Mr. Nichols. Ted asked the court to impose a protective order requiring Jerry and his family to stop financially exploiting Mr. Nichols, to stay away from Mr. Nichols and his home, to give back to Mr. Nichols all that Ted alleged Jerry and family had taken, and to freeze Jerry’s own bank accounts so Jerry would be more likely have the money to give back to his dad.

Mr. Nichols received no notice of the court petition Ted filed on his behalf or that the court was going to rule on it. The court granted the protective order, and more. The protective order also froze Mr. Nichol’s bank accounts, so Mr. Nichols could not access his own money, and appointed an outside lawyer chosen by the court, called a guardian ad litem, meaning a court-appointed person to oversee and control Mr. Nichols and his stuff, with court-ordered limitation about how much of Mr. Nichols’ money the guardian could spend for Mr. Nichols’ expenses.

All this happened before Mr. Nichols knew anything about it. He first learned that he no longer controlled his money when the bank refused to let Mr. Nichols have any of his money.

Throughout the entire process, no medical evidence was offered to prove that Mr. Nichols was mentally incompetent or needed help managing his money and other affairs. One minute Mr. Nichols was in control of his life and his money; the next minute, when the bank told him of the protective order, he was not; he and his money were under the guardian ad litem’s control. All with no notice to him of what was happening or any opportunity to show that he was not being financially exploited and did not need the court’s protection.

In comparison, West Virginia has other laws, commonly called the Protected Person Statutes that establish how a court can decide if a person is mentally incompetent and needs court protection. These laws contain many protections against what has happened to Mr. Nichols that the financial exploitation law does not have in it.

For example:

Mere age does not indicate incapacity;

Unless there is medical evidence that attending would damage his health, Mr. Nichols would have to be notified in advance and attendant hearing by the court; and,

Mr. Nichols would have to be represented by his own lawyer. If he doesn’t have his own, the court will appoint one for him whose job is to “zealously advocate” for Mr. Nichols.

The financial exploitation law provides a way to nip in the bud financial exploitation of aged or incapacitated people, but, as in the case of Mr. Nichols, sometimes the outcome isn’t quite what one would expect.

Mr. Nichols still is trying to regain control of his own money and get out from under the thumb of the Guardian ad Litem.

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Gerald W. Townsend is a partner in the law firm of Fluharty & Townsend, Parkersburg, West Virginia, with special emphasis upon Medicaid planning to protect assets from nursing home costs. He can be reached at jtownsend@fntlawoffices.com.