Elderly father exploited by salesman

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Latest post Sat, Jul 11 2015 11:03 AM by karen2222. 28 replies.
  • Sun, Jul 5 2015 9:40 PM

    • o0Ampy0o
      Consumer
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    • Joined on Sun, Jul 5 2015
    • CA
    • Posts 8

    Elderly father exploited by salesman

    My father lives alone in his house. He had a mild stroke and has memory problems. He no longer drives. My sister lives 15 minutes away and drops by periodically during the week. I make it by to clean on weekends. I have PofA for finances and health, am executor of his will and advanced health directive.

    A few weeks ago a saleman got my father to sign a contract to have solar installed on his house. He is 86 years old. He needs coaching just to sign his name on a form. It would be very obvious he was not in a state of mind to handle a decision like this. At his age how could he benefit from solar? The house is in a reverse mortgage. He has cancer that has returned and he does not want to pursue treatment. This saleman took advantage of him.

    When my brother in law doscovered the crew on his roof he tried to stop the work. They said he needed power of attorney. As soon as I was informaed I faxed over a copy of the PofA and told them to stop the work. They are billing him $2000+ for breaking the contract.

    All I have heard from people is talk to a lawyer. DUH!. I am interested in additional advice. I don't want to go into a lawyer's office to be taken for a different ride. I can only locate voice mails and preventative information sources. I am looking for interaction. Does anyone have any advice or experience to share aside from the obvious "get a lawyer"? If there are lawyers participating on this forum I would like to hear from you as well.

    BTW, this company has an A+ rating with the BBB yet a very low Yelp reputation. A BBB rating can be purchased with support membership funding. I believe a reputable company would have spotted my father's age and questioned the integrity of the salesperson at least once this came to light. These people don't care.

    I am in an adjacent town about 45 minutes from my father's but I am thinking I need a lawyer based in his town, San Jose. It is difficult to get the time during and away from work to handle this.

    Thank you in advance for any assistance.

  • Sun, Jul 5 2015 11:06 PM In reply to

    Re: Elderly father exploited by salesman

    You're not going to like this response. I agree that you shouldn't be going to a lawyer because a lawyer won't do you any good.

    The POA allows you to act for your father but doesn't prevent your father from acting for himself. The sales person did nothing wrong or illegal despite your belief that they did.

    This $2000 bill is a wake up call for you and your sister. It's telling you that your father is no longer capable of living on his own and should be in a care home or assisted living facility where he won't fall prey to door to door sales people.

    I realize that's pretty hard to accept but I think that's what you should be addressing rather than looking for a way to punish the blameless solar company.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Mon, Jul 6 2015 7:44 AM In reply to

    Re: Elderly father exploited by salesman

    I disagree with Jack that this company is blameless and here is why:

    Your father clearly has been found not competent to handle his own financial affairs and at 86 mentally declining.  BOTH of those factors including your having POA means that legally he could not enter into that contract with the solar company.  The one fact that will render a contract null and void is if one party was not legally competent to enter into it which I seriously question whether your father was based on what you have said.

    You do not need a lawyer in his town only one licensed in his state.  If you both live in the same state I would just hire one close to you for convenience  Many will do a first consult for low or no cost.  If it is accurate that your father could not legally enter into the contract then a couple hundred bucks for the lawyer to send a sharply worded letter to this effect notifying them they have no contract should settle it.  I would also look into a complain to the state licensing board for these companies.

    I would also get Dad out of a situation living on his own to ensure this doesn't happen again.  Based on what you posted he should not be living alone with someone checking on him a few times per week.  

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Mon, Jul 6 2015 8:14 AM In reply to

    • harrylime
      Consumer
    • Top 100 Contributor
    • Joined on Sat, May 31 2008
    • TX
    • Posts 549

    Re: Elderly father exploited by salesman

    ClydesMom:
    Your father clearly has been found not competent to handle his own financial affairs...

    By whom?

     

    ClydesMom:
    BOTH of those factors including your having POA means that legally he could not enter into that contract with the solar company.

    Bull...

  • Mon, Jul 6 2015 8:15 AM In reply to

    Re: Elderly father exploited by salesman

    ClydesMom:
    Your father clearly has been found not competent to handle his own financial affairs

    Not at all.  A Power of Attorney is a document someone voluntarily signs, and in fact would be invalid if the grantor were mentally incompetent when he signed it.  Its existence is far from evidence that the grantor is in any way incompetent.

    I don't know anything about it from personal experience, but everything I've read about getting someone declared legally incompetent says that it is difficult and expensive to do, and that the bar for competence is quite low.  The courts are apparently very reluctant to take away an adult person's autonomy.

     

  • Mon, Jul 6 2015 8:40 AM In reply to

    Re: Elderly father exploited by salesman

    o0Ampy0o:
    A few weeks ago a saleman got my father to sign a contract to have solar installed on his house.

    Here's a link to some information about contract rescission rights on the website of the California Department of Consumer Affairs.

    CA law apparently only gives people 3 business days to change their minds, no questions asked, about both door-to-door sales and home improvement contracts.  After that you have to prove something was wrong with the transaction.  It sounds like you CAN prove that, assuming your father is willing to testify appropriately, but I suspect that you can't sue in small-claims court so you'd have to hire a lawyer and spend probably more than $2000 on the lawsuit.

    You could try at least talking to a lawyer who specializes in elder law and/or consumer law.  Maybe that lawyer would also have some good ideas - short of dad moving into assisted living - for how to avoid similar situations cropping up in future.  You can't force your father to move, after all, if he refuses to do it.

  • Mon, Jul 6 2015 10:38 AM In reply to

    Re: Elderly father exploited by salesman

    ClydesMom:

    Your father clearly has been found not competent to handle his own financial affairs and at 86 mentally declining.  BOTH of those factors including your having POA means that legally he could not enter into that contract with the solar company.  The one fact that will render a contract null and void is if one party was not legally competent to enter into it which I seriously question whether your father was based on what you have said.

    Others have sufficiently jumped on that paragraph.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Mon, Jul 6 2015 11:47 AM In reply to

    Re: Elderly father exploited by salesman

    I would also go to the manager of this firm and tell them he was exploited by a pushy salesman and you want the contract voided. I would not pay them anything. Tell them your father is 86 yrs old, not coherent and you have P of A and how dare they take advantage of someone that old. Out of gooodwill they may just void the contract.

  • Mon, Jul 6 2015 11:58 AM In reply to

    Re: Elderly father exploited by salesman

    As an initial matter, it does not appear that your father is in any condition to be living by himself.

    I'm not sure what your ultimate question is here since the only two actual questions in the post appear to be rhetorical.

    In terms of commentary, I don't know how much time passed between the date of the contract and the day your brother-in-law found the workers on the roof.  However, there are laws that give a party to a door-to-door sales contract the right to cancel the contract within a certain number of days after the making of the contract.

    Your post didn't indicate whether any harm was done to your father's house or whether it's just a matter of the company billing $2k.  If it's just the latter, your father is, of course, free not to pay the bill.  Maybe it will get reported on his credit.  "At his age," will that matter to him?  Will the company sue him?  I don't know.

    If you have specific questions, feel free to ask.

  • Mon, Jul 6 2015 12:04 PM In reply to

    Disagree [)*(] Re: Elderly father exploited by salesman

    ClydesMom:
    Your father clearly has been found not competent to handle his own financial affairs

    He has?  By whom?  This isn't clear to me since I don't have any independent knowledge of this situation and there's no mention of anything of the sort in the original post.  Are you just making stuff up?

     

    ClydesMom:
    BOTH of those factors including your having POA means that legally he could not enter into that contract with the solar company.

    The existence of the POA has no bearing whatsoever on this.  If Dave gives Steve a POA to negotiate contracts with third persons on Dave's behalf, that doesn't preclude Dave from negotiating his own contracts.  It just means that Steve has the power to do so whereas he would not have that power without the POA.

     

    ClydesMom:
    The one fact that will render a contract null and void is if one party was not legally competent to enter into it which I seriously question whether your father was based on what you have said.

    I agree with this.  Questions clearly exists about the father's competency, but neither you nor "adjuster jack" nor I am competent to answer those questions in the unequivocal ways that you two have done.

  • Tue, Jul 7 2015 6:55 PM In reply to

    • o0Ampy0o
      Consumer
    • Not Ranked
    • Joined on Sun, Jul 5 2015
    • CA
    • Posts 8

    Re: Elderly father exploited by salesman

     

    Thank you to everyone who has commented. 

     

    The short follow up: 


    A question: If this bill is left unpaid and sent to collection could the solar company get a lien on my father's house for the amount owed?

     

    The amount being billed is a percentage of the total cost of installation. It is a 10% figure billable if the contract is broken. I did not see any evidence that the house was altered. I think a crew was dispatched to his home and they were only preparing to begin the installation. If they solar company sued him and he had to appear in court the judge would see his mentality. It might take medical testimony after examinations to legally concrete but the judge would get a sense for his frailty and fuzzymindedness.  By the time this got that far he might be too ill. He does have cancer. I am not paying the solar company any money. I like the idea of a pithy letter of refusal from a lawyer. 

     

    The long follow up, if interested: 

     

    Regarding the contract, there was a window of wiggle room but it was too late when we discovered the crew working at my father's house. 

     

    The solar company manager is unsympathetic to the idea that one of his salesmen took advantage of an old man. 

     

    Although there may be nothing illegal in what they did the solar company is not "blameless." Take a look at what the benefits are for investing in solar. Of those what would an 86 year old man gain from adding solar to his house? He certainly would not live long enough to see any savings in energy expenses compared to what he paid to have it installed. The salesman only cared about closing a deal.  The salesman knew he was encouraging a frail old man to invest a lot of money in something and he would never reap the benefits being presented to him.  (Someone might call fowl for using loaded language but these words describe the situation. Consider this whole story hypothetical if you need proof). 

     

    Some businesses exist on their skill at taking advantage of the elderly. People have an innate need to experience closure.  When you start to lose your health there is a growing list of obstacles in the way of navigating through life. When you start to lose your memory you may not be able to see projects and tasks through to completion. Businesses and charities understand that they can tap into this by providing the easiest method of making a purchase or donation. When the elderly person makes a purchase or donation they are setting out to accomplish a task. They are sold on the idea that a purchase will be good for them before making the sale. A donation is a good thing. When completed, they receive a product or a token of gratitude for their effort. They feel like they have some purpose to their life again. 

     

    All day on typical TV stations catering to the elderly are commercials making it easy to purchase a product. My father gets stacks of mail soliciting donations. Business pitch their worthless junk as collectibles. My father was in the Marines. He gets tons of junk mail selling tokens of his veteran status. 

     

    My father used to build models. He stopped because he could no longer focus on the task and follow the instructions. One of his replacement activities is to go grocery shopping. He doesn't look for what he is out of. He just walks through the store buying this and that. He comes home having accomplished something. His refrigerator is so full of groceries I have to pack up a load each week to make room for the next round. At least he is getting something out of this even if it is not nourishment. 

     

    Elderly people are lonely. Yet they frequently want independence. My father never used to answer his front door. Now he will for something to do. I put up a No Soliciting sign because local homeless people had spread word that he would donate to anything. They come to his door pretending to be a charity. He took the sign down.

     

    When I stopped him from driving he did everything he could to get around it. First he agreed but lied. I had to lock his car up with antitheft devices. He paid a locksmith to unlock and re-key his car. I disabled the car deflating tires and disconnecting cables. He figured out how to get it running. I did not want to make it so difficult that even I could not get it running if I had to but eventually I had to exceed his ability to figure it out. He finally gave up. It will take a mechanic to get it running as it was easier to disable than it will be to put it back together. 

     

    He may not remember everything when he needs or wants to but he remembers how to be stubborn. 

     

    It is easier said than done placing people in a better situation. He does not want to live in a retirement home. He does not want anyone living with him that would not be a coconspirator who would help him drive or buy whatever he wanted. He was brutal to the nurses when he was in the hospital a few years ago. Even when he was at his best he was a rather unsociable territorial grump. He likes who and what he likes and complains about what he doesn't like. Locating a caretaker he will accept and who will accept him is a challenge. 

     

    I am taking it in steps. He wasn't keeping up with his payments and damaged his credit before I realized it and could get him to a point of acknowledging it and allowing me to take over for him. The solar company will not see a dollar of that money. I'd like to report this incident to the Attorney General's office or something so it is on record at least. 

     

    Technically, my father may not meet the legal definition of mentally incompetent and I don't want to see him have to prove that for this solar company. He is a frail old man who was sold something very expensive he did not need and could not benefit from. I imagined a judge admonishing this business owner for unethical business practices preying on the weak. 

     

    Thank you all again.

     

     

  • Tue, Jul 7 2015 7:49 PM In reply to

    Re: Elderly father exploited by salesman

    o0Ampy0o:

    A question: If this bill is left unpaid and sent to collection could the solar company get a lien on my father's house for the amount owed?

    Yes, a contractor's lien does not require litigation to record the lien. But there is often a time limit within which the contractor must litigate to perfect the lien otherwise the lien becomes invalid. The problem there is when somebody tries to buy the house, the title company will find the lien, and the buyer's mortgage company will want it cleared before it lends and won't accept the "Oh, it's no longer valid by law." And if the lender doesn't lend the buyer doesn't buy.

    o0Ampy0o:

    Technically, my father may not meet the legal definition of mentally incompetent and I don't want to see him have to prove that for this solar company. He is a frail old man who was sold something very expensive he did not need and could not benefit from. I imagined a judge admonishing this business owner for unethical business practices preying on the weak. 

    I don't think so. With all due sympathy for your father's plight if he doesn't meet the legal definition of mentally incompetent then he is legally competent to sign contracts and be bound by them. That's what a judge will look it. It's only your opinion that unethical business practices occurred. The contractor will testify to the contrary. Then what? Put your father on the stand (the man who remembers how to be stubborn) and expect him to admit that he was taken advantage of?

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Wed, Jul 8 2015 8:41 AM In reply to

    Re: Elderly father exploited by salesman

    o0Ampy0o:
    If this bill is left unpaid and sent to collection could the solar company get a lien on my father's house for the amount owed?

    Unfortunately, the bill would not have to be "sent to collection" for that to happen.  The contractor could record a mechanic's lien against your father's property (although if no work was done, and the $2k is merely a contractual cancellation provision, there would be no basis for a mechanic's lien).  The good news is that mechanic's liens become enenforceable if the contractor does not file suit to foreclose within 90 days after the date of recording, and a mechanic's lien foreclosure action cannot be maintained in small claims court.  Most contractors won't go to the trouble of suing in "regular" court over $2k (although some will -- especially if there is a contract that provides for the recovery of attorneys' fees).  Beyond the mechanic's lien, if the contractor were to sue your father and prevail, it could obtain a judgment lien against the home (although with the reverse mortgage in place, such a lien might not be effective).

     

    o0Ampy0o:
    Take a look at what the benefits are for investing in solar. Of those what would an 86 year old man gain from adding solar to his house? He certainly would not live long enough to see any savings in energy expenses compared to what he paid to have it installed.

    I don't know if that's true, but no law limits the sale of solar systems to those who are young enough that they will reap a financial benefit.  There are also non-financial benefits.

     

    o0Ampy0o:
    I'd like to report this incident to the Attorney General's office or something so it is on record at least.

    Certainly a reasonable thing to do.  Just don't use this as a threat to make the company go away.  That could be construed as criminal exortion.

  • Wed, Jul 8 2015 9:03 AM In reply to

    Re: Elderly father exploited by salesman

    o0Ampy0o:
    If this bill is left unpaid and sent to collection could the solar company get a lien on my father's house for the amount owed?

    It could, but for the lien to be valid California law has strict deadlines both for filing the lien and then for enforcing it (suing your father).  If the solar company misses either of those deadlines then you can sue to have the lien removed, and can include a demand for them to pay your attorney fees as well.  I'd say you should do this as soon as you become aware of the problem lien, since years later who knows whether the company will still be around, let alone have assets with which to pay your attorney fees.

    Here are two helpful web pages, one from the CA Dept of Consumer Affairs and one from Avvo.

    o0Ampy0o:
    It is easier said than done placing people in a better situation. He does not want to live in a retirement home. He does not want anyone living with him that would not be a coconspirator who would help him drive or buy whatever he wanted. He was brutal to the nurses when he was in the hospital a few years ago. Even when he was at his best he was a rather unsociable territorial grump. He likes who and what he likes and complains about what he doesn't like. Locating a caretaker he will accept and who will accept him is a challenge.

    It sounds like he needs more human interaction.  If you can figure out how to fill that void a bit better, maybe that would (mostly) solve the problem - ?  Would he enjoy any of the activities on offer at the local senior center?  Does he have friends he'd like to get together with, and favorite activities he can still engage in with them?  Maybe all you need is a part-time caregiver whose main function is to drive him places to socialize and then drive him back home.

  • Thu, Jul 9 2015 12:17 AM In reply to

    • o0Ampy0o
      Consumer
    • Not Ranked
    • Joined on Sun, Jul 5 2015
    • CA
    • Posts 8

    Re: Elderly father exploited by salesman

     

    It looks like I would have to take formal steps to establish my father's limitations. To do that in order to fight this solar company is not worth it even though it infuriates me that they are trying to take his money. My father would have mixed feelings about the process. He would be naturally resistant and stubborn. He would forget the whole point if he ever comprehended it fully.

    He also manages to say the worst thing at crucial times. For instance, when a bank clerk was giving general advise about the potential hazards of allowing children more control over a parent's finances he asked me "Is that the one you wanted?" Although a sincere question It could have appeared as though he was going along with some plan of mine he didn't comprehend and I was manipulating him. 

    His credit has already been damaged. 

    If there is no legal recourse to fight against this solar company I am inclined to make them wait to see any money.

    If they place a lien on the property I will take care of it before it has a chance to delay sale of the property after he has died……but no sooner. 

    If I am overlooking something please point it out to me. It seems that my father got himself into this mess and is accountable and nothing can protect him from this incident. 

    As for the future, it is very difficult to take control of someone's life unless they are completely incapacitated. My father is partially interested in my help but most people are naturally unwilling to give up independence. They don't want to have to rely on people. He enjoyed privacy. He doesn't like visitors more than once a week. He wants to go out on his own though. He feels trapped without being able to drive. 

    He had a circle of friends he socialized with after he retired but most have passed away. One moved to another state. I have to go by there late at night / early morning more often than during the day to make it by there on weekends. He will get up sometimes to say hello but sometimes I do not see him. Although my sister lives 15 minutes away and is a stay-at-home wife with lots of time she is ineffective and just goes through the motions without applying herself to the situation. He likes her husband though. 

    It seems monumental to matchmake a friend / caretaker that he would trust and tolerate. He needs someone that could direct him. He needs someone to watch and intervene stopping him from getting involved in situations like this of even handing out donations if necessary. 

    He does not cooperate. We had my name added to his checking account so I could pay his bills. He had overdrawn his account so I had to prevent him from drawing money out for a while by collecting his checkbook and debit card. He would report his debit card or checkbook missing and the bank would lock up the account. That meant I could no longer access his account and pay his bills online from my home. I had to go back to the bank with him and reestablish what I was trying to do. 

    The bank employees are ignorant and make irresponsible statements like saying, "Power of Attorney does not exist" when they mean a PofA does not have authority with banks. It took countless discussions to get to the point where my father was willing to let me handle his affairs then these people would poison his mind with ideas that children try to take advantage of their aging parents. There are children who try to help their parents also but they cast suspicion on everyone. They need to be trained to handle this situation properly. They only make matters worse. 

    I apologize for rambling. I am describing all of this in hopes that certain portions, at least, will be commented on with suggestions offered.

    Once again, thank you to everyone for contributing to this discussion.

     

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