Remarks able for Our Crumbling Brains: Decision-making, Fraud, and Disproportionate Influence, allotment of the Project on Law and Applied Neuroscience, a accord amid the Centermost for Law, Brain & Behavior at Massachusetts General Hospital and the Petrie-Flom Centermost for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School; April 27, 2018.
“Elder corruption is not substantiated”
The acceptation of ancient corruption charcoal misunderstood, alike by professionals.
I know—from hard-learned experience—when I, and abounding others, formed to save my grandmother from corruption by my father.
In a December 2006 cloister decision, my grandmother’s administration adjudicator accustomed agreement of my acknowledged fees for bringing a administration address for my grandmother, stating, “Although this amount voluntarily acclimatized afore the hearing, I acquisition the appellant Philip Marshall was the prevailing party…”
But the adjudicator additionally absitively to accolade my ancestor a allocation of his acknowledged fees, writing, “I accomplish this cardinal based on the cessation of the cloister analyzer that the allegations in the address apropos Mrs. Astor’s medical and dental care, and the added allegations of advised ancient corruption by the Marshalls, were not substantiated.” [italics added]
This accommodation apparently has abundant to do with the confounding of ancient abuse, ancient banking exploitation, testamentary capacity, disproportionate influence, and abounding added analytical acknowledged apropos addressed here, today, and for millions of seniors and their circles of abutment (personal and professional) all forth the way.
“Astor son is cleared,” accent The New York Times, which quoted my father’s advocate saying, “This is a case that was accustomed bearing from allegations that were actually apocryphal apropos Mr. Marshall’s affliction of his mother.’” (2006)
On the aphotic December day of this decision, our Pyrrhic achievement begin us accident the greater war adjoin ancient abuse.
Was my grandmother’s case to be ancient justice’s Plessey v Ferguson?
Were we to repurpose my family’s ‘dirty laundry’ as abandonment flags, giving up on the greater account in to which we had been so thrust?
This one article catapulted our attack from case to cause.
And, aloof as my ancestor declared that he had been vindicated, the Manhattan District Attorney’s Ancient Corruption Unit broadcast its own investigation, empanelled a admirable jury, and issued subpoenas.
In November 2007, my ancestor and a advocate were indicted.
In April 2009, a bent balloon began.
Executing codicils while “delusional”
Substantial, consecutive changes to my grandmother’s will began in 2002—and escalated.
In my grandmother’s case three attorneys accumulated to actualize a ‘perfect storm’ advancing in to her breakable activity in the winter of ’03-’04 to assassinate three codicils that redistributed about $100 amateur of her bequests to charities, administering them to my father’s control.
First, my grandmother’s abiding advocate and acceptable “friend” who was arch of trusts and estates for an internationally accustomed firm.
This lawyer, who was a co-trustee of the Vincent Astor Trust, was planning to be advocate and co-executor of my grandmother’s estate.
This lawyer, as his aftermost of several acts aloof afore he was fired, took the awful abnormal footfall of advancing a self-described “First and Final Codicil.” (For discussion, see an account conducted by Lori A. Stiegel, Chief Attorney, ABA Commission on Law and Aging, with Able Witness Alex Forger 2011)
This advocate betrayed my grandmother’s assurance and compromised her testamentary wishes.
Another lawyer, who my grandmother had never met before, but accepted to act in her best interest, accomplished a additional codicil, afflicted her executors, and accomplished a new adeptness of attorney. This advocate covered up his beforehand to, at, and from, the signing of the codicil. Multiple versions of his announcement canonizing the accident were crafted to beforehand that my grandmother had testamentary capacity. (memo drafts)
And last, a lawyer, Francis Morrissey. In the 1990s he had been abeyant from practicing law.
This lawyer, who had accepted my father’s third wife for years, adumbrated himself in to my grandmother’s activity and orrated abundant of this from the sidelines — while cat-and-mouse for the balance in the anatomy of fees as anew appointed co-executor and acreage attorney.
This lawyer’s doubtable bogus of my grandmother’s signature on a third addendum afterwards spurred the Manhattan District Attorney, as it started its own investigation.
While my grandmother’s will to alive remained strong, her (testamentary) will, to give, had been absolutely compromised — four years afterwards my father, claimed she was “delusional” in a seven-page letter to Dr. Howard Fillit, a aged neurologist.
After the beheading of these codicils, my grandmother was aflutter of “men in suits.” At night, she asked nurses to accessory beneath her bed for the, “man who wants to annihilate me.”
Following analysis by Dr. Fillit, my ancestor told her country butler to accumulate the account to himself. Upon address my ancestor accept him a abbreviate account of the signs of Alzheimer’s disease—and instructed him to alarm her advocate if they had any questions. Agents accustomed no able support.
My grandmother’s wellbeing was absolute blow of an accomplishment to accomplishment her when, and because, she was in the affliction of Alzheimer’s disease.
As perpetrators know, cerebral abetment by disproportionate access is so able in advantageous their adeptness while added debilitating seniors who accept cerebral crime and may abridgement testamentary capacity. Disproportionate access can accommodation seniors’ wellbeing—and their wishes.
In horror, I accomplished this was accident to my grandmother aback she was best vulnerable.
After her hundredth birthday, I grew added anxious for my grandmother. I began speaking with her admiring agents and caregivers.
A transaction had aloft red flags. I heard that while my ancestor was acid aback on my grandmother’s expenses, he had awash her admired painting—Flags, Fifth Avenue, by Childe Hassam— that she had ancestral to the Metropolitan Museum of Art. (New York Times, 2006)
The auction accomplished $10 million, two of which my ancestor kept as a “commission.”
On audition of the sale, my grandmother, who had been led to accept she was active out of money, asked, “Now, can I buy dresses?”
My grandmother went from the limelight, centermost date as beforehand amateur in her own life, to actuality ‘gaslighted’ by her own son, who psychologically bankrupt her bottomward into assertive she was activity broke.
My grandmother knew she was accountable to disproportionate influence, apparent by affidavit during my father’s trial.
As appear by The New York Times, according to an accessory nurse, Ms. Noble, Mrs. Astor said, “‘I accord up. They get all that they want. I’m so gaga, what can I do?’”
During the signing of a codicil, my grandmother attempted to avert herself; again, commendation the Times, “‘I won’t be pushed into any business, do you apprehend me?’ Ms. Noble said that Mrs. Astor told her son.” and “…when the Marshalls visited the apartment, Ms. Noble said that Mrs. Astor told her: ‘What do they want? Tell them I will pay them to leave.’”
Undue access is elusive — from abandoned seniors at home, to professionals’ offices, to our cloister houses, and for responders forth the way. Alike its analogue is elusive.
But advances are actuality made. For example, in 2014 California adapted its laws and its 1872 analogue of ‘undue influence’ so judges, for the aboriginal time, accept specific agency to appraise its actuality in a accustomed case.
A new approved acknowledged definition, California Probate Cipher and Welfare and Institutions Code, and a pilot California Disproportionate Access Screening Tool (CUIST) to advice developed careful casework cadre are all aimed to aerate use and capability in the field—and, hopefully, in court.(Marshall and Quinn 2017)
We beforehand from case to cause, aback we go from case to case laws.
In the Redstone/Viacom battle in 2016, it is adverse that California Adjudicator David J. Cowan, who was chief one of the accompanying cases, did not aphorism on Sumner Redstone’s competency—or disproportionate influence. (Hollywood Reporter 2016)
When the battle came to Massachusetts afore Adjudicator George F. Phelan of Norfolk County Probate Court, as acclaimed in The New York Times, “Multiple times, Adjudicator Phelan asked whether a award of disproportionate access should invalidate the dismissals from the trust, and cited a area of Massachusetts assurance cipher on the matter.” (2016) Shortly after, the case was acclimatized out of court.
Isolation and cerebral impairment
My grandmother was cognitively broken and isolated, yet her case is far from isolated: millions of victims ache agnate abrasion every day. (Pillemer et al 2015)
While seniors may be abandoned and cognitively impaired; anniversary of us (personally and professionally) may be, too.
Professionals are isolated…in antidotal silos — even in their own industry. This hampers accumulating and administration of advice to detect, acknowledge to, and anticipate theft; and in demography a proactive, strengths-based access to aging.
Perpetrators apperceive this, to their advantage.
We charge constant analogue and abundant added multidisciplinary assignment to aid in research, response, achievement measurement, and asset allocation—especially adjoin prevention.
We charge abstracts administration aural and above disciplines.
This coercion and befalling is underscored by allegation of aftermost November’s appointment at the “Philly Fed,” co-sponsored by UPenn, on Aging, Cognition and Banking Health and its angle to accept the healthcare and banking industries allotment data, cradled in a assurance framework with aloofness apropos in mind. (Aging, Cognition and Banking Health: Building a Robust Arrangement for Earlier Americans, hosted by the Consumer Finance Institute of the Federal Reserve Bank of Philadelphia and co-sponsored by the Penn Memory Centerand Healthy Brain Analysis Network Centerat the University of Pennsylvania.)
Professionals additionally abstract themselves from themselves — from their claimed experience.
Colleagues associated with The Gerontological Society of America advised both facets of their lives aftermost year in a appropriate issue, “Aging: It’s Personal,” altered from annihilation The Gerontologist has anytime published. Rachel Pruchno, affair editor, notes, “Although science tells us about boilerplate experiences, these reflections appearance that absolute activity is sometimes abundant added circuitous and abundant messier.” (2017, 4)
This why I am so beholden for our appointment leaders today who, from the outset, explained to me how their claimed affairs accept a and accountable their work — and their acknowledgment of community-wide conversations.
For, our blackout protects perpetrators, not their victims.
This why accessible engagement — here, this morning — is so valued.
Our aggregate belief will advice translational analysis appear abounding circle, to embrace all stakeholders in absorption our ambit adjoin corruption aback we accede communities civic as active laboratories.
Seniors may be cognitively impaired. We all may be ‘cognitively impaired,’ and missing pieces, aback it comes to ancient justice.
Ageism is the axiological impediment to ancient justice, due to its ‘fear factor’— as we are afraid to death…of death , and any of its associations. (Becker 1973, Solomon) This impairs seniors and our approaching self, every day.
We are alone added afraid by the existential agony of dementia, including its stigma — with the (scarlet) “Big-A” at the forefront.
Perpetrators apperceive this, to their advantage as they weaponize dementia (alleged or actual) and acknowledged instruments — POAs and guardianship, included.
Tribulation to trial
We avant-garde from adversity to trail. From the adversity of audition the allegations in my address for administration were unsubstantiated, to a bent balloon that accepted otherwise.
Yet, it took a six-month trial—which included over seventy assemblage for the People and none for the defense—to prove, above a reasonable doubt, that my grandmother was cognitively impaired, lacked testamentary capacity, was accountable to a arrangement to defraud, and was a victim of abuse.
My ancestor was bedevilled on 14 counts. All but one were upheld on appeal.
Before we acted, my grandmother was poly-victimized and re-victimized.
However, she was not victimized afterwards intervention— alone because she was not cognizant…of the administration judge’s award that, “elder corruption was not substantiated,” or that, during the bent trial, it was claimed by the aegis she had a “lucid moment” while signing acknowledged documents.
In Surrogates, whose affairs had been put on hold, a adjustment was accomplished that provided for charities (especially those with an accent on education) abundantly as my grandmother wished.
Here, if her wishes had not been met, New York agents would accept accustomed annihilation added than a assignment plan in how ancient abuse—and a acknowledged arrangement clumsily a by neuroscience, psychology, and psychiatry—can be acclimated to exploit.
My grandmother’s case acquired civic attention. Best cases are not alike known. Alone one in 24 cases of ancient corruption are reported—and alone one in 44 cases of ancient banking exploitation, the best accustomed anatomy of abuse. (Under the Radar 2011)
Perpetrators frequently booty advantage of victim vulnerability, disproportionate influence, and acknowledged instruments, which they use as a weapon and a shield—to steal.
If caught, they apperceive perpetrator accountability and victim accretion can be compromised by our bare compassionate of neuroscience, psychology, psychiatry ,and acknowledged article of banking controlling in earlier adults.
Today takes us one footfall afterpiece to society’s proactive blockage of, and acknowledgment to, abuse—and to authoritative ancient amends as American as grandmother and AAPL pie.
— Philip C. Marshall, Founder, Above Brooke
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