Mix an aging Dallas widow, shady antique dealers and an unscrupulous lawyer? – 04-08-2017

In this episode, Lisa and John discuss why not all lawyers are created equal and a recent story to help you see how bad things can get if you don’t choose one wisely.

Episode Transcript
John
Hey, everybody. Well, welcome back everybody, this is your host John Ross here live in the studio with Lisa Shoalmire my co-host.
Lisa
Hello everyone.
John
Yeah and we are here on Aging Insight because we come here every weekend and we want to talk to you all. We want you all to know about stuff, we try to entertain you a little bit. We try to keep you interested in what’s going on out there in the world. Particularly we know that there is information that you will need out there if you want to age on your own terms. If you want to navigate through the ageing process and if you want to do that without losing everything that you’ve managed to accumulate during your lifetime we know you can do that. We also know that you’re going to need some information if you want to do that. It’s a beautiful Saturday and you might even just want a little entertainment. We try to keep it interesting.
Lisa
That’s right, so we’re here on Saturday, it takes a lot of resources to make sure that happens for you. Just want to give a shout out to our sponsors Edgewood Manor. The Barnet Agency. Dierkse Memorial Hospice. Riverview Behavioral. Cowhorn Creek Estates. Curt Green & Company. St. Michael’s Hospital. Red River Federal Credit Union. Twin City Rehab and Inspirations in New Boston.
John
Thanks to all of them and of course the biggest thanks is to all the folks that are listening out there. I visited with some folks this week and the lady said, “Oh yeah my husband’s a really big fan of the show.”
Lisa
Oh great, so hello to him.
John
He’s always telling me he’s like, “Shhh, they’re talking.” Yeah we appreciate our listeners out there and of course if you want to you can listen, that’s what you’re doing if you’re on the radio. You can also watch if you’d like, either now because we’re live on the Ross and Shoalmire Facebook page. Or you can later on if you want to go see this particular episode or any of the ones that we’ve done, what the last four?
Lisa
Yeah, we’ve done I think four.
John
You can go to the Ross and Shoalmire Facebook page and scroll down and find our previous radio show. If you wanted to hear about... rehear about something that you saw previously you can go and check those out. That’s why we do the Facebook Live it helps us record things.
Lisa
It helps us record and as I was speaking with some folks earlier this week sometimes they’re a little worried about calling in. They would be okay typing out a question there on Facebook. I’ve encouraged folks, “Hey even if you’re a little shy you can always type in your question on Facebook Live and we could see it here from the studio.” We’ll be glad to answer those questions as well. We certainly always look forward to hearing from our callers.
John
Our elected officials down there in Austin have been busy.
Lisa
Yes, our Texas legislature it meets every other year. The joke is that we try to minimize the damage by only... by prohibiting them from meeting every year. They can only meet every other year and frankly John that’s enough for me.
John
Yeah, it really is. I think they have now put up all the bills that they’re going to put up. I think we’re 1,600 different bills I think is something between the Texas house and the Texas senate.
John
Yeah, they’ve been busy I’m not sure how much of them are really worth a count. A lot of them are very small changes. Adding a word or two.
Lisa
Or making some corrections to perhaps some poorly drafted codes .
John
You mean the legislator occasionally poorly drafts stuff?
Lisa
On occasion, on occasion.
John
Who knew.
Lisa
There’s a lot going on and we try to keep on top of watching what’s going on with the legislature that would impact, our clients, our community members. Even if you’re really quiet we want you to hear about this stuff, so that you are aware. Some things bubbled up to the top of what would be of interest to seniors, retirees and our older and wiser Texans.
John
That’s right. Yeah, and there’s one particular little change that’s out there and to be perfectly honest it’s a very small change and it’s going to have... it’ll probably have a little impact out there in the real world. It’s actually a change to the penal code.
Lisa
Yeah, we’re talking about the penal code which is the Texas criminal codes which define all the crimes that you might and could commit in Texas and of course in a criminal matter it’s the district attorney or the state of Texas that comes after criminals or people who’ve been charged with crimes. One of our listeners may think what in the world would a criminal statute or a penal code change have anything to do with me.
John
What does it have to do with him, but what does it have to do with a couple of elder law attorneys?
Lisa
Yeah, do not call me to defend your family member from a charge of a crime I can’t do that.
Lisa
That’s not how I... I would be incompetent and incapable as an attorney to defend someone in a criminal case.
John
Yeah, no I don’t know and in fact I give speeches all the time and that’s what I say. Is I say, “You may have heard me stand up here and run my mouth all morning and you’re thinking, ‘man that John guy he seems to know his stuff.’” When it comes to elder law that’s a pretty good assumption. I’m pretty hard to get one past on an elder law issue. Don’t think that that makes me an expert in all things law. If you get arrested later and you call me you’re going to go to jail.
Lisa
There’s some listener out there thinking about their brother-in-law who’s a lawyer who goes to the cocktail party and suddenly becomes an expert on all things in the law.
John
Yeah, that’s exactly right.
Lisa
I’m so glad John that you’re so self-aware.
John
That’s right and we... I have had clients that will call because of criminal cases. I’ll just send them out to... I know a couple of really good criminal law attorneys and will send them over to those folks.
Lisa
If you do need an attorney, attorneys usually do know who does good work.
John
As far as that goes it’s not the topic today but understand that law is a specialty, just like medicine is a specialty. Generally speaking if you want specialized knowledge and specialized attention. Then you go to the person that has that specialized knowledge and can give you that specialized attention. You would not use one doctor to treat your cancer and cut on your brain, and...
Lisa
Do a heart bypass and...
John
Do a heart bypass.
Lisa
Those are going to be all different doctors.
John
That’s exactly right. The same thing really should be in the case of attorneys. In fact I would say be weary of one that says otherwise. Anyway, that’s not here nor there. We’re talking about the penal code.
Lisa
That’s right. It’s an interesting change that’s coming up.
Lisa
I’m going to jump in and talk about what are the issues we see frequently? Sadly is we do see seniors that are financially exploited by mostly family members.
John
Typically family members. Although sometimes third parties.
Lisa
Sometimes third parties like a friend or...
John
It’s about three out of four is going to be a family member.
Lisa
Texas long ago has recognized that financial abuse of a senior adult is a crime against the state, because it’s a crime against a citizen and we want to discourage that type of behavior. That’s been on the books for a long time. I could go off on a whole another rabbit trail about how poorly enforced and poorly investigated financial abuse of seniors as a crime is... I do know of a current case that’s going on right now in Bowie County. We just don’t see that many going through the criminal courts. Although I know sitting from our couch in our conference room in our office we see plenty of potential cases.
John
Plenty of it’s happening, it may just not been getting prosecuted.
Lisa
One of the bills has been filed with the legislature of this session is tweaking this financial abuse or financial abuse of a senior. They’ve added a couple of words to the statute, John. The statute says that financial abuse means the wrongful or negligent taking, appropriation, obtaining or use of, or assisting in the wrongful or negligent taking or use of money or other property of another person, by any means, including by exerting undue influence.
Lisa
The statutes are pretty wordy.
John
They are pretty wordy.
Lisa
Essentially it boils down to financial abuse as if you were wrongful in your appropriating the assets of someone else and you’re exerting undue influence and that’s how you obtained those assets. Then, that could be a crime. Now they’re adding, they termed that if you do that or you assist someone else in doing that.
John
You’re complicit in the crime in some way because you’ve helped out. I thought for example I saw on the TXK today Facebook page. I saw a report of a scam against an elderly woman here in town. Where a guy shows up at the house, says he want to check out her roof. He climbs up on the roof, he looks at it, he comes back down, he says, “Yeah you’ve got some damage up there, but I can fix it. It’s going to be 5,000 bucks. I guess they actually maybe carried her down to the bank so she could pull out the 5,000 bucks. Then when they got back he basically went up to the roof and use some spray pain and spray painted some stuff. Then they collected the 5,000. Then I got they got greedy and came back the next day.
Lisa
Oh, yeah well if they knew they had a pigeon on...
John
Yeah and I think that’s... anyway one of the things the article said was that the guy who had done all of this had two people with him. These two people, I don’t know if they held the ladder or they helped drive or helped act like they are a...
Lisa
A crew... a roofing crew.
John
A roofing crew or something. I guess the point here is that essentially what the statute does is it’s expanding out the financial exploitation.
John
This is an example of financial exploitation of the elderly.
Lisa
The phantom contractors. We see that all the time. Yeah, “Well fix your driveway. Your roof. Remove the tree. Just give us the cash upfront or a substantial amount of the cash upfront.” Then you never see them again.
John
This is financial exploitation. The question becomes though we got the guy who clearly did it but what about the two yahoos that are just along for the ride? Essentially what the statute here is doing is expanding out the definition to not just the person who’s actively engaged in the exploitation but also the people that are assisting in it. Assistance can be a vague term. Was it just the person who drove him there? If they knew what he was going to do, then was just driving the transportation is that assistance, is it subject? I think that’s what they’re trying to get to is, “Yeah, if you know it’s going to happen and you’re involved in it somehow.” Then, yeah they want to try to catch it. Actually as I understand it, Lisa, this change to this statute actually comes from one particular case.
Lisa
You know, John, you know how under law at least when I was in high school sometimes we would talk about various statutes and things. Occasionally I would have a professor that would say, “Bad facts, make bad law.”
John
That’s right.
Lisa
A lot of times you’ll see a very unique situation and the facts are egregious. We’re all outraged and we want to do something about it and to make sure that situation never happens again. A law is hastily drafted and it is passed with gusto and it’s addressing that terrible, awful situation. It turns out the net is bigger than the terrible awful situation it was meant to address.
John
That’s exactly right.
Lisa
I think this change here in the financial abuse statute... when we come back from our break let’s talk about the net that the assistance of someone who is engaging in financial abuse of a senior who that may fall on.
John
Yeah, and we’re going to tell you about this story. If I’ve got a bucket and in this bucket I take a rich eccentric, Dallas...
Lisa
Model, Hollywood, starlet.
John
Ex-model, Hollywood, starlet widow who’s ageing. I add a couple of shady antique dealers and I...
Lisa
A well known Dallas mansion.
John
A well known Dallas mansion, and maybe a unscrupulous attorney.
Lisa
No, no unscrupulous attorneys.
John
Oh yeah, we’re going to put all these things in a bucket and see what kind of mess comes out the other side. We’re going to take a break, stick around and we’ll be right back. All right and we’re clear from that. Yeah, we’re going to be talking about a big Dallas case that came out a couple of years ago and it’s messy and it’s nasty and it’s good stuff. Nothing like a good story to illustrate the point.
Lisa
Dallas is always good. Everything is bigger in Dallas. We’ve got big facts, big crimes, big situations, big personalities in this case. Spoiler alert, maybe even some big jail time.
John
Good stuff out there. Of course if you’re watching whether you’re watching live or whether you’re watching one of our recorded version if you have any questions, you have any comments always feel free to push your comments right there on the page.
John
Or if you have a question ask it and even if we don’t get to it live we will respond to those questions and we’ll try to help you out and get you straight on all of that. In addition to all of that, if you like the show feel free to give us a like, like that person just did. You can share it with your friends because they might want to know some of this information as well.
Lisa
No. When we come back, John I know we’re going to end up talking about are you familiar with the Swiss Avenue area of Dallas?
John
I’m not, I don’t know it. You seem to know it, but I didn’t know it.
Lisa
Every Halloween I know Swiss Avenue is a big place where a lot of trick or treaters like to go. Because there’s all these old mansions that were built in the 1910s and 1920s. They really take part in decorating the mansion to make them spooky. Of course when you got these big old house is just perfect. Swiss Avenue is well known for their Halloween candy and coming out.
John
Who knew. I didn’t know that. Apparently, Lisa knew that. Probably anybody that’s got any association will Dallas would know that. Then, I’m not a Dallas person.
Lisa
Well, when that whole area was it was the place to be before World War 2. The family who built and donated dollar property for SMU lived in that area. This is for the movers and shakers.
John
Back in the old days.
Lisa
That’s right if J. R. Ewing had been living in Dallas in 1920 he would have lived in the Swiss Avenue area. How’s that?
Lisa
All right everybody, welcome back to Aging Insight. We are back here live on the radio. Of course if you have any questions you can give us a call at 9037931071. Today we’re talking about some change in the law about financial exploitation of seniors. Which adds the term that if you assist in some... it doesn’t even say in what way it just says, “If you assist with financial exploitation of a senior. Then you could be charged with a crime.” Before we get to our story today though. We do have a caller. Caller welcome you’re on Aging Insight.
Lisa
Is that reversible? All right so the question here is, and it’s a great one. Is if the senior adds a younger person to their deed in some way, so that the person goes to that person later without probate when the senior passes away. If that younger person has their own issues where they’re in a rank or disabled, can the senior change something about that deed and get that younger person off?
John
Or otherwise could the... like if it’s a car-wreck could the plaintiff come in and take the house? Or something like that. The short answer is it’s possible if it’s not structured correctly. For example one of the things that we often... one way we often do this is with something that we call a ladybird trust. It’s a type of deed where you are in fact adding... you’re putting somebody else’s name so that the property will pass at death, but you’re not exposing the asset to those other people just yet. They won’t get it until that seniors person dies. If they get divorced. If they file bankruptcy, if they get sued. If they become disabled. None of those issues would affect it. Yet, the property would still passed to them outside of probate. They would do it in a way that would escape Medicaid.
Lisa
Essentially there that younger person has no ownership interest that is attachable by a creditor or a plaintiff, so long as that senior landowner is alive.
John
To your question I have seen people that have done deeds on property where they just gave the person an outright interest in it.
John
Mom owns 50% and daughter owns 50% or something like that.
Lisa
Or even just a life estate, where mom keeps a life estate but gives the remainder interest in the property to daughter now.
John
That’s right and in those situations we have seen several situations where the child’s disability, the child’s liabilities can impact that. The short answer to your question is if it’s done properly you shouldn’t have to worry about that.
Lisa
Just need to check out what kind of... how that was structured?
John
That’s right. Sure absolutely, thanks for calling. We’re coming up on our bottom of the hour break here.
Lisa
Yeah, so our listeners will have to wait for this juicy story that they could learn something from when we get back from our news break.
John
Stick around we’ve got some... it’s going to be... it should be a good little story, anytime you get some weird Dallas entanglement it’s always pretty unusual.
Lisa
Well, and there’s always something that you can take from it. Sometimes it’s like observing what happened to others and you learn from it.
John
That’s right, stick around. All right so back on our break here and...
Lisa
That was a good question. It took up our time there, but it’s good to get clarification on that.
John
We apologize because of the way that Facebook Live is structured and the way our studio is structured we cannot get the callers voice on to the Facebook Live. We just don’t have the technology available to us at this point. We were trying some different things but right now we just can’t do it.
Lisa
We try to repeat what the caller’s question would be so that you can keep up with us.
John
It was a good point and this is something that I preach all the time which is you don’t ever plan for what you hope happens, you plan for what could happen. You plan for the bad stuff and then you go back and hope none of it happens. I can’t tell you how many times I have seen somebody where mom does a deed... she deeds her property to her two kids, three kids, one kid but retains a life estate. The right to live in it as long as she’s alive. Because she’s got these three kids and she loves these three kids and their world are all fine and dandy and so she’s not worried about it.
Lisa
That’s why when we entered the caller, the question it really does depend on the proper structure of that type of transfer and that type of gift. That’s just vitally important.
John
A lot of this is where, this is where you get experience. This is where the drafter, the advisor that’s where our experience is going to come in to play in something like this. Because we do see those situations and we learn how to address those situations. Somebody that does this type of legal work on the side they do this also.
John
Oh well yeah they do... mostly they do car wrecks, but they’ll also do this. They’re not going to have this kind of experience and they’re not going to now how to structure it. Frankly they’re not even going to know that there was a problem.
Lisa
They’ll think it’s taken care of.
John
They' think it’s taken care of until it goes wrong. Then it’s already too late at that point in many cases. Some of these things you can’t do situations that you cannot undo. Many of it most situations when we see crisis there are ways to undo it and get it back to where it was supposed to be. There are some that you just can’t fit.
Lisa
When a caller calls in like that I always wonder what’s the back story?
John
Right, yeah are they already in that mix? Or was this just a... or was that person just...
Lisa
Just curious.
John
Just curious. Are they just thinking it through? I’ve had some pretty strong clients who will think it through. Let’s see we’ve got one minute left. Yeah, some clients are pretty sharp, they ask pretty good questions. Anticipating things that I haven’t told them yet. More often you get a call like that when they’re probably already in a mix. There’s probably already a problem. Yeah, unfortunately you’ve got to anticipate the problems way back before there ever are problems. Which of course one of those problems is the potential for exploitation.
Lisa
That is a big problem so many people they think of their parent as capable and competent. You know as we get older as we face health challenges.
Lisa
We’ve seen folks that we never would have thought would have been a victim, have been victimized.
John
The hardest thing for us to protect you from is yourself. All right. Going back in two seconds. Welcome back to Aging Insight everybody, this is your host John Ross here in the studio with Lisa Shoalmire we’re live on the radio. We’re live on Facebook, you can call us 9037931071. You can go to the Ross and Shoalmire Facebook page and check us out live there and type in your comments. If you have any, or you’ve got a comment, you’ve got a question or anything like that we’re out there. Anyway, we’re available here to you. Now, Lisa get us started on this story.
Lisa
All right, so this story involves a lady by the name of Mary Ellen Bendtsen.
John
Which is a fantastic name by the way.
Lisa
It’s a good Texas name Mary Ellen
John
Mary Ellen, yes. That’s right.
Lisa
That’s right we’re going to call her Mary Ellen. Mary Ellen Bendtsen she was born in the 1900s I think I should say. She was a Dallas figure of the 1920s and 30s. She was a tall blonde, statuesque. Just think of ... she was striking. She modeled in the Dallas area.
John
She made the cover of Cosmo.
Lisa
She made the cover of Cosmo magazine. I bet she probably had a few more clothes on than the ladies do now on Cosmo.
John
That’s probably right.
Lisa
She ended up in New York where she was wined and dined in Manhattan with Cole Porter and all the celebrities of the day. She ended up back in Dallas where then she spent the rest of her life.
Lisa
She came back to Dallas in the late 40s and spent the rest of her life there in Dallas. Particularly she loved her home which was located as 4949 Swiss Avenue. The sprawling 7,000 foot Prairie style architecture, yellow home. If you’ve ever been over to Dallas you wouldn’t miss it.
John
Three stories tall, 7,000 square foot under roof and I forget how many bathrooms and ...
Lisa
Chandeliers and hand rubbed mahoganies, beautiful staircase. This was a glamour house for a glamour lady. Even after she returned to Dallas she continued to play the piano and sing and continued to hobnob with all the rich and famous in the Dallas community. She also apparently sang for President Truman when he came through Dallas. She had quite a collection of antiques and glamorous furs and jewelry and different things. She had this wonderful life. She married one time and she had one daughter. Time stops for no one, John.
John
Yeah, that’s true and her... she outlived her husband, he died I believe in was it in the 90s?
Lisa
I think it was a little earlier than that.
John
Oh yeah, late 80s I think maybe, late 80s.
Lisa
She’s by herself and her daughter had married and ended up moving to the East Coast.
John
Yeah, moved off to the East Coast. She’s now widowed, she getting older.
Lisa
She stays at that house.
John
She loves that house, this thing has been in her family, I think her mother originally.
Lisa
Yes, her mother originally purchased it.
John
Her sister owned it for a while. She’s got it now and I mean this thing is just a treasure. There’s a concept of trying to live the Dallas lifestyle. No better way to live the Dallas lifestyle than to have a home that says, Dallas.
Lisa
Right, more home than you could possibly need as one little lady with 7,000 square feet.
John
I have a member of my family that went through this as well and continued to buy bigger and bigger houses until they got one that was just ridiculous. Their water bill was more than most people’s mortgage because the house was so big.
Lisa
This lady as she retired and she didn’t have her performances and entertainment. Money is tight. She can’t keep up the house, it can’t be maintained, but she won’t cell the antiques and the beautiful furniture because it’s part of the house. She was playing the part of the movie starlet. She has these wonderful parties at her home even though the dining room ceiling is falling in.
John
Starting to sag and...
Lisa
People said she would come and wear her heals and her fancy dresses and her furs and host these parties. She attracted the attention of a couple of antiques dealers.
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