Love is in the Air and that includes May-December romances. In the 1971 cult classic Harold and Maude, the relationship between the two protagonists is innocent enough. Twisted, but innocent. There's no hint in the film that Ruth Gordon's grandmotherly Maude has money or that Bud Cort's Harold has any interest in her besides love and friendship. Besides, Maude initiates the relationship. But real life provides less idyllic scenarios. Imagine the following instance, one which will become more common as the population of the U.S. ages:

Silver-haired Sarah is befriended by barely 20-something Hank. Sarah has family, but they seldom visit. There's a son in Los Angeles who, back in the eighties, appeared in some schlock-horror B movies and now holds himself out as a talent agent. He called once last year to wish Sarah a belated happy birthday—and ask for money, which Sarah sent. Then there's the daughter, who lives an hour away from Sarah, but their relationship is—if not frosty—very strained. There might be plenty of blame to go around for the difficulties between them, but either way, the visits are few and far between. Maybe that's for the best, as their time together always ends in recriminations and tears. The grandchildren? Well, they used to visit, but they have since moved on to who knows where with their own lives—lives which have no room for an old, lonely lady who jabbers on endlessly about the memories in which she lives.

But the younger man? Hank? He's different. Unlike her forgetful, inattentive family, he cares. That grocery shopping service daughter signed Sarah up for? Canceled. Mom has found a new, and frankly better looking, chauffeur than any the service employed. And he cooks! And he cleans! And more importantly, he listens. Hank listens to all of Sarah's crazy, silly stories, no matter how many times she repeats herself. Hank is a true friend who's there for Sarah—always—especially now that he's moved into her house.

"And just where is he staying, Mom?" cries daughter. "I don't see his stuff in the spare bedroom!"

"None of your business," Sarah replies tartly.

Soon, Hank is driving a new car, buying new clothes, taking Sarah out, not just to her many doctor's appointments but also out to movies and fancy restaurants. They are even readying to go on a cruise to the Bahamas. Turns out, Sarah has a lot more money than her family realized. Hank—who before had nothing—now has a very substantial bank account. In fact, per Sarah's own admission, he now has tens of thousands of dollars that has been gifted to him by a very happy and grateful benefactor. And now, Sarah has a new will, having written all her family out of it. Instead, she has left a small fortune, and her beautiful old home and property, to Hank.

When the district attorney's office begins to investigate the matter at the behest of the suddenly concerned family, Sarah tells the investigators, "It's my money and property. I can do what I damn well please with it."

Georgia protects the 'elderly'

On May 3, 2013, Governor Nathan Deal signed House Bill 78 into law. Both the Criminal Code, Title 16, and the Disabled Adults and Elder Persons Protection Act, Title 30, are enhanced in an effort to protect our elderly. The "elderly" are defined under O.C.G.A. §16-5-100(4) as being people "65 years of age or older," and in O.C.G.A. §30-5-3(6) as "a person 65 years of age or older who is not a resident of a long-term care facility as defined in Article 4 of Chapter 8 of Title 31."

As applicable in the above scenario between Sarah and Hank, §16-5-100(6), essentially duplicated by §30-5-3(8), defines "exploit" as "illegally or improperly using a[n]…elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense or other similar means for one's own or another person's profit or advantage."

Should Hank be prosecuted and found guilty of exploitation, §16-5-102(a) mandates he serve one to 20 years and possibly pay a fine up to $50,000. Of course, he won't be permitted to pay that fine with the money Sarah "gifted" him.

Per §30-5-4(a)(1)(B), financial employees "having reasonable cause to believe" financial exploitation of an elder person has occurred have a duty to report to an appropriate adult protection agency, failure to comply with which exposes them to criminal charges. The adult protection agency "shall immediately notify the appropriate law enforcement agency or prosecuting attorney." §30-5-4(b)(1). §30-5-4(d) cuts into otherwise lawfully privileged or confidential relationships.

There are many ways a grateful and/or duped elder person might give money to a deserving or undeserving benefactor. For example, as a straight gift, through insurance proceeds, or in a will. In Marks v. State, 280 Ga. 70 (2005), an 89-year-old widower, Mr. Stewart, was dining alone in a restaurant when he was approached by Anne. Anne was described by a restaurant employee as an attractive female in her late 40s, early 50s. Anne invited Stewart to join her and her purported uncle, Nicholas Marks, at their table. Within only a few weeks of that meeting, Stewart had given his jewelry, his car, and his credit cards to Marks. Stewart also replaced in his will his primary beneficiary and executrix with that of Marks' daughter, giving her an undivided half-interest in his home property. Meanwhile, Marks persuaded Stewart to buy his "niece" a new Thunderbird for $34,000 cash, and Anne proposed marriage to Stewart after two more dinners, asking him to move into her new Florida home. Marks was subsequently prosecuted and found guilty of numerous charges, including violations of Georgia's then existing elder protection statute, which survived the defendant's various constitutional challenges.

Marks presents a case of grifters previously unknown to the elderly victim as defendants. But it is the godson who performed some acts of kindness towards an elderly victim who stands accused in Ware v. State, 305 Ga. App. 229 (2010). Ware's defenses at trial, both that he was following requests of the victim and justification, weren't persuasive to a jury. Ware not only was the godson of victim, Frank Johnson, but his parents had been close with Johnson for over 50 years. Though the two hadn't had much contact over the years, after Johnson had a stroke, it was Ware who took him to the hospital and cared for the "confused and disoriented" Johnson during his illness and recovery. Ware's convictions for various exploitative acts, including directing Johnson's life insurance company to name him beneficiary on a policy, were upheld.

Close calls

The litigants were even more closely related when Terrell Welborn, on behalf of his deceased mother Bonnie's estate, sued his brother Ronald over a stock transfer. Welborn v. Welborn, 295 Ga. App. 661 (2009). Unlike the previously cited cases, it was "undisputed that Bonnie was mentally competent" at the time of the transfer. Yet, because a "case for undue influence is made not only when a person is suffering from feeble-mindedness, 'but also in the case of an elderly grantor, the domination of the grantor by the grantee, exemplified by the grantee's provision of shelter and care,'" the Court of Appeals upheld a jury verdict in favor of the estate. Id. citing Mathis v. Hammond, 268 Ga. 158 (1997). Here, Ronald had given 81-year-old Bonnie a place to live. Ronald's girlfriend moved into the household helping to care for the diabetic Bonnie, overseeing her diet so to manage the disease. Bonnie had other health issues that, no doubt, weren't easy to deal with for her caregivers, including enduring radiation treatments for lung cancer and suffering a broken hip. Welborn shows how a Good Samaritan's worthy actions could make them susceptible to a charge of undue influence. It is because Ronald provided his mother with shelter and care when the stock transfer was made that a charge on undue influence was warranted.

Conflicting evidence

The case against Hank brought by Sarah's indignant family presented much conflicting evidence. The defense paints Sarah as a woman in some need, but not too much need—really wanting in friendship, if anything. Lonely—but not desperate. Nevertheless, she's a woman with all her mental faculties about her. The shopping service was not necessary, but instead officious intermeddling by a daughter with a guilty conscience. She can take care of herself with some difficulty. But the sweet, kind, admittedly eccentric Hank, has become a caregiver and a confidant. Really, he has become the family Sarah should have had to comfort her in her old age. If he's become more, well, that is nobody else's business. Just who deserves Sarah's wealth more than Hank? Hank is the one person who has filled a heart-shaped void the family was willing to leave before realizing there was money to be had.

However, the district attorney presents a different Sarah. A woman who once possessed great interpersonal skills and discernment, now she has become like a petulant child. Yes, she is lonely. Painfully so. Which, combined with the precipitous deterioration in her judgment, has led her to reject family. No, they have not abandoned her. Rather, in a foreshadowing of a more severe erosion of personality and mental acuity yet to come, she has pushed them away while convincing herself otherwise. The shopping service was in response to a nearly empty refrigerator and cabinets. And, she had lost weight. Daughter always cared and was getting more and more worried, but mom just refused to discuss anything with her. It was into that self-created void which stepped the college drop-out, unemployed Hank.

The jury walks out with the task of deciding not only whether Sarah has become feeble-minded, but if not, whether Hank's kindness in providing her transportation and care amounted to domination of her free will at the time she made him various gifts and changed who would inherit her estate. They will have to consider the confidential relationship between the two, Sarah's age and health, and their living arrangement. A weird relationship, indeed. They certainly have their doubts about Hank. Severe reservations. But as they sit to begin their deliberations, not a few jurors wonder about their own old age. They reflect on their own busy, overworked, even self-absorbed children who do not seem responsible enough to care for themselves, let alone able and willing to do the same for aging parents. And so they wonder, whether sufficient resources for their shelter and care remain, who will look after them should all family and friends depart?

Alan Levine's practice includes trust and estate litigation, guardianships and conservatorships. Prior to joining Lyle & Levine, he prosecuted in Cobb County for six years.

Dawn Levine's is a partner at Lyle & Levine. Her practice ranges from basic wills to complex tax planning and charitable giving. A significant portion of her practice is devoted to business formation and succession and the special estate planning needs of foreign nationals.

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