Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
I was placed on a TRO for financial elder abuse case last summer in civil court. Judged dropped case. I was POA and was gifted money for home loan and was repaying it. My mom was diagnosed later with dementia and she does not remember any gift. There is no argument that I owe money but family members are now refusing to sign “final” settlement. They are now threatening me with a criminal lawsuit. They just want me to hand-over the money without contract. Is there a real criminal case? Why not arbitration?
This is difficult to answer without more specific details. You state that the judge dropped the civil court case involving elder abuse. Civil cases are generally held to a lower burden of proof than criminal cases. Depending on the reasons the judge dropped the civil case, this may mean that the evidence available does not establish abuse. This would mean that a criminal case could not be filed against you, or if it is filed, would not be successful.
From what you say, it may be difficult to prove elder abuse. You refer to a gift, but then state you are repaying it. A loan, if the terms are not unreasonable, would be unlikely to meet the criteria for elder abuse. Regardless, you state that this transaction occurred prior to your mother’s diagnosis of dementia. If no one had reason to suspect she was suffering from dementia at the time, her diagnosis probably cannot be used as the basis for an elder abuse case. The prosecutor would have to establish that you held a position of trust over your mother, and you abused that trust for your own gain. From what you stated here, that does not appear to be the case. A criminal defense attorney, however, can provide you with specific advice based on your circumstances and your state’s laws.
As far as resolving the situation, arbitration is an option, but is not likely to be satisfactory for the parties. In arbitration, the parties each present their case to a neutral arbitrator. The arbitrator then makes his decision—much like a judge. The decision may be binding or non-binding, depending on what the parties agree to beforehand. Mediation could be a much more helpful solution. In mediation, the parties, under the guidance of a professional mediator, come to a mutually acceptable agreement regarding an issue. Some states allow a mediation agreement to be binding (though the process is confidential). Mediation is particularly helpful when parties may have misunderstandings between them. Mediation can be done with or
without attorneys for the parties. Many attorneys are trained in mediation and will mediate a dispute for a modest fee. You can contact your local courthouse or state’s bar association for a list of mediators.
