Abstract
The fight against financial exploitation of our elderly population requires a strong interrelation between the medical, financial, and legal systems to be effective. Before the courts can protect the elderly from financial exploitation and other abuses, persons having front-line access must first be able to recognize it. Unfortunately, exploitation can be difficult to identify for the simple reason that the transaction(s) at issue might appear to be the result of legitimate choice. Major transfers of an elder’s assets occur for a wide variety of reasons ranging from love, affection, and generosity, to exploitation and abuse. Somewhere in between is a blurred line over which a legitimate transaction ends and an exploitive one begins. Through separate case examples and discussion of the legal principles within both the civil and criminal justice systems this chapter arms the medical professional and others on the front lines with the tools necessary to identify patients at risk for exploitation, assist with intervention, and prevent their exploitation in the future.
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Notes
- 1.
Thompson v. Radis, Cuyahoga County probate court case #2007 ADV 129205.
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Elder Mistreatment at p. 382.
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Many state laws use the word “incapacity” and “incapacitated” when referring to incompetence. Practitioners should refer to their own state laws in determining which word to use.
- 11.
In re Succession of Lounsberry, 824 So.2d 409, 412 (2002).
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Looney v. Estate of Wade, 310 Ark. 708, 711 (1992).
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King v. MacDonald, 90 Idaho 272, 279 (1965).
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In reWilley’s Estate, 9 Mich. App. 245, 254–55 (1967).
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Hamilton v. Steininger, 350 Mo. 698, 713 (1943).
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Matter of Robinson’s Estate, 231 Kan. 300, 306 (1982).
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De Nieff v. Howell, 138 Ga. 248, 204 (1912).
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- 20.
John Doe is a fictionalized name based on an actual case handled by one of the authors.
- 21.
The term “guardian” is defined by law and in some states is equivalent to “conservator.” However, in other states, such as Ohio, a conservator is appointed for a competent adult at the request of the adult. To avoid confusion, the authors will refer to “guardian” and the practitioner should consult the laws of their particular state to determine the proper usage of the term.
- 22.
In some states, the term “guardian” or “guardianship” is referred to as a “conservator” or “conservatorship.” As used herein, the authors are referring to the highest form of court control with a corresponding aspect of legal loss of decision-making.
- 23.
This chapter concentrates on the protection mechanisms available to prevent exploitation from occurring and not the process by which damage resulting to an heir who has been disinherited by the exercise of undue influence can be remedied by way of civil lawsuit. Therefore, the concept of post mortem lawsuits to set aside wills, trusts, and other transactions will not be discussed herein to any great degree.
- 24.
Spar JE, Hankin M, Stodden AB. Assessing mental capacity and susceptibility to undue influence. Behav Sci Law. 1995;13:391–403.
- 25.
Schiavoni v. Roy, 9th Dist. No. 11CA0108-M, 2012-Ohio-4435, ¶¶2–3.
- 26.
Bodenbender v. Long, 3d Dist. No. 4-95-11, 1996 Ohio App. LEXIS 1718, **11–14.
- 27.
In smaller jurisdictions, these patrol officers may be tasked with the job of conducting the additional investigation themselves.
- 28.
In Washington, the state in which this crime occurred, law enforcement is a mandatory reporter of vulnerable adult abuse and exploitation. Banks are permissive reporters.
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Fried, A.M., Malemud, F.C., Ulrey, P.B. (2014). Financial Exploitation: The Legal Perspective. In: Factora, R. (eds) Aging and Money. Aging Medicine. Humana Press, New York, NY. https://doi.org/10.1007/978-1-4939-1320-6_8
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DOI: https://doi.org/10.1007/978-1-4939-1320-6_8
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