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  1. #1
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    May 2014
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    9

    Default Financial Exploitation of an Elderly Relative Through a Contract for Services

    In Texas...

    A daughter drafts and has signed a contract for services by her elder mother who may have contractual incapacity but which may not be able to be proved. So consider the contract for language and enforceability on its own merits first please...

    November 17, 2011

    To whom it may concern:

    I, Jane Doe, want to and agree to pay Judy Doe, my daughter, the sum of $2000.00 for the month of November 2011, for services, assistanceand advice needed to allow our mother to continue to function, effective as of today. This payment each month is for attending to her finances, including but not limited to bookkeeping, bill paying, correspondence and assistance with care facilities (i.e. assisted living facilities, nursing homes, hospitals, etc.) and submission of monthly accounting, etc.

    Signed:

    ~~~~original signature~~~~

    Jane Doe

    Notorized November 17, 2011
    Please note the following...
    1. the 1st person point of view of most of the first sentence.
    2. the 3rd person point of view of the phrase 'our mother' in the first sentence
    3. the specificity of the time period of 'the month of November 2011' int he first sentence
    4. the phrase 'This payment each month' in the second sentence
    5. the 3rd person point of view of the phrase 'for attending to her finances...' in the second sentence
    6. the reference to 'monthly accounting' in the second sentence seems complimentary to the idea of multiple months
    7. there is no extrinsic evidence that can be entered in the case of an 'ambiguous' determination
    8. acceptance can be claimed by the daughter's efforts to perform the services
    9. the daughter, acting as attorney in fact for the mother, has only taken one month's worth of payment and is now claiming the rest in response to a claim by suit by the mother of self-dealing, unjust enrichment, fiduciary failure

    In order to avoid the contract and in pondering a defense I am considering the following...

    A. unambiguous vs. ambiguous

    1. The specificity of the first sentence setting the term to the one month of November 2011 conflicts with the vagueness of the apparent meaning of multiple months in the second sentence.

    2. Both sentences can be harmonized in general by their common theme, their consideration of service. In the first sentence consideration is listed as 'for services, assistance and advice needed to allow our mother to continue to function...' relates nicely with '...attending to her finances, including but not limited to bookkeeping, bill paying, correspondence and assistance with care facilities...and submission of monthly accounting, etc.' notwithstanding the change in point of view with the use of 'our mother' and 'her'. Clearly a reasonable person can understand and conclude the intent of the agreement as to the consideration of service in exchange for the offer of $2000, to wit, a list of expected services.

    3. The offer of $2000 for the month of November 2011 clearly is not harmonious with the phrase 'this payment each month'

    Looking to the entire four corners of the agreement, can a determination be made that it is unambiguous in its intent for a single payment for November 2011, with the phrase '...each month...' as surplusage? To rule that the intent is for multiple months would do violence to the clearly stated single month language, it seems. The phrase 'each month' if removed brings clarity to the intent of the agreement. In converse, removing '...for the month of November 2011...' does the same. So, to me, it seems that two reasonable interpretations can be made and thus ambiguity.

    If the court doesn't find two reasonable interpretation then, it seems, that confusing language is the next argument. When confusion or vagueness results from the language and other methods of interpretation have been exhausted then the penalty of the resulting confusion goes against the drafter of the agreement, which is the daughter and her claim for multiple months.

    Please give your thoughts on the construction of the contract, its enforceability and ideas on the best method to avoid the contract.

    thanks
    Tex

  2. #2
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    Default Re: Financial Exploitation of an Elderly Relative Through a Contract for Services

    Digging through that to try to figure out what is going on, you say that the mother has filed a suit against the daughter for "self-dealing, unjust enrichment, [and] fiduciary failure". Was mom mentally competent at the time the contract was signed? Is mom pursuing this legal action on her own initiative, or is she now being represented by a conservator who has brought the action on mom's behalf? You have told us of only one $2,000 payment by mom to the daughter -- what else is involved in the mother's claims of financial impropriety?

    As I read the contract, looking at what appears to be the intent behind its sloppy language, it appears to provide that the daughter will provide a set of services to mom, and that mom agrees to pay her $2,000 for those services. You indicate that one payment was made. That raises a number of questions: Why was only one payment made? Even if we regard the contract as continuing month-to-month, the contract would not stop mom from 'firing' her daughter at any time and ending the arrangement -- was the arrangement in fact ended? What services does the daughter claim to have performed, consuming how many hours per month, and what accountings did she provide to substantiate that she was continuing to provide services under the contract even though she was not being paid? If the daughter provided services, what would have been the approximate value of those services if provided by an unrelated third party? Prior to the filing of the lawsuit against her, did the daughter ever complain that she was not being paid?

  3. #3
    Join Date
    May 2014
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    9

    Default Re: Financial Exploitation of an Elderly Relative Through a Contract for Services

    By the way Im not a lawyer but am fairly well versed on our issues and am helping our attorney.

    Mom was first diagnosed with dementia about a year after the signing although there is spotty evidence that it occured off and on during the time of the signing. An argument of temporary lucidity will be presented if we attempt to claim incapacity. She has been officially diagnosed with dementia and we have permanent guardianship of the person and the estate and as her guardian are pursuing the suit on her behalf.

    The daughter took one or two payments then gave them back the the mom complained and threatened to complain to the district attorney. Apparently that was the daughter's only attempt to collect. So there must be something amiss about the agreement that only the mom and daughter could reveal but, alas, mom is demented and her testimony is useless. However, that conversation can be confirmed so that resistance on the part of mom may signify a 'firing' of sorts, or certainly evidence of an apparent lack of meeting of the minds. The lawsuit is for recovery of assets misappropriated and wasted as a result of the daughter's actions as the mom's attorney in fact before we took over guardianship. The daughter, in her response to the pleading, will try to collect for all of those months where she apparently did not collect on her services.

    And she did provide those services to some degree or the other. She failed miserably to pay bills correctly and in fact lost a $200000 life insurance policy for failure to pay premiums. So we can easily go after breach of contract if the contract itself is not thrown out.

    The daughter never, to our knowledge complained about not getting paid. But she had control of the money so she had plenty of opportunity to pay herself from the almost half a million in funds under her control as agent since both mom and dad were demented and she was agent for both.

    That's the purpose of the suit. She has essentially mismanaged or stolen or converted huge sums of money and assets because she felt untouchable and unaccountable. That is the reason we got guardianship. To take care of mom and get standing so as to go after recovery.

    One of the issues will be this contract so I am researching all of the ways it can be challenged.

    My main concern now is the structure of the wording. My questions is can the agreement be found unambiguous in favor of the single month theory or in favor of the multiple month theory?

    If found reasonably ambiguous then extrinsic evidence can be presented and we only have anecdotal supporting possible dementia.

    If found that a multiple month unambiguous contract exists then we have lots of evidence of failure to provide those services all the way back to the beginning.

  4. #4
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    Default Re: Financial Exploitation of an Elderly Relative Through a Contract for Services

    If mom, during a period of relative lucidity, told her daughter that she was repudiating the agreement, resulting in the daughter refunding the money she had taken, it seems like a genuine stretch to try to argue that the agreement continued after that date.

    When a contract is ambiguous (i.e., its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning), a court will attempt to render the contract consistent by looking at the whole of the agreement. If the meaning remains unclear, the ambiguous terms are normally construed in the manner most favorable to the party who did not draft the contract. See, e.g., Republic National Bank v. Northwest National Bank, 578 S.W.2d 109 (Tex.1978) ("In Texas a writing is generally construed most strictly against its author and in such a manner as to reach a reasonable result consistent with the apparent intent of the parties. If two constructions are possible, a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless.")

    The ambiguity in the contract relates to whether the contract was intended to apply to a single month, or if the later mention of "each month" rendered it a recurring fee. In the latter case, it remains unclear whether the monthly fee would be $2,000, as that's described as the fee for November and not as a recurring fee, or whether the fee would somehow relate to the amount and nature of work actually performed. If you can document that, after the first payment, mom either expressed that it was her understanding that the agreement was for a single month or that she was sufficiently dissatisfied with the quantity and quality of work that she got from her daughter that she ended the agreement, and that she threatened to notify the police if the money were not returned to her, it seems like it would be near-impossible for the daughter to argue that mom's understanding was that the fee would be payable in perpetuity, without regard for the amount or quality of work performed, or that it was not terminated when mom threatened to contact the authorities with a complaint of elder financial abuse.

  5. #5
    Join Date
    May 2014
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    Default Re: Financial Exploitation of an Elderly Relative Through a Contract for Services

    Great points!

    Thanks

  6. #6
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    Default Re: Financial Exploitation of an Elderly Relative Through a Contract for Services

    Sorry I am very late coming into this.

    When taking care of an elder, a LOT of things must be considered.

    And my first advice to ANYONE taking care of a senior is get an appointment with an Elder Law Attorney so you know what you can and can't do, what your rights are, what the elder persons rights are. How their money can be spent.

    See, if an elderly person needs an nursing home....every.dime.they.have.receieved.or.spent for the last 5 years will be gone through with a fine toothed comb.

    You gave the grandchild $25.00 for Christmas? The elder can be denied medicaid coverage.

    Picture this one, been there myself. My grandmother, whom I was caregiver for....needed a new stove (needed, not wanted). I brought her brochures from different stores. She chose which one she wanted. I had the only charge card in the family, so I put it on my MasterCard. She wrote a check TO ME for the exact amount. When she needed to go into a nursing home....I needed a lawyer...taking financial advantage of a senior. Had she written the check to MASTERCARD....it would have been a non-issue.....

    Point being: If you are signing into a contract with a senior, you want to make sure you know the laws, consult with a lawyer before you do anything....get the permission to know the seniors medical history and know they are legally capable of making a decision before anything is signed.....

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