Monday, October 7, 2013
New article-“Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation.
Congratulatiuons to Professor Andrew McClurg, Herbert Herff Chair of Excellence in Law at the U. of Memphis Cecil C. Humphreys School of Law for his forthcoming article titled “Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation" which will be published in the Hastings Law Journal. Professor McClurg was kind enough to provide me with an abstract and SSRN link:
Already widespread and with seventy-eight million baby boomers in or nearing
retirement, elder financial exploitation has been labeled “The Crime of the 21st Century,” yet little is being done to address the problem. While states and the federal government have passed hundreds of laws protecting children based on the assumption they are vulnerable and unable to protect themselves, older at-risk adults have been comparatively ignored despite extensive research showing they too are vulnerable.
A substantial roadblock to prosecuting elder financial predators is the inability to prove the financial transfers at issue were the result of exploitation rather than legitimate transactions. By their nature, most elder exploitation cases do not involve taking property by force or even stealth. Many victims “voluntarily” part with their assets. To outsiders, the transfers may look like gifts or loans, when in fact they occur because of undue influence, psychological manipulation, and misrepresentation.
Arising from a Florida criminal case involving the financial exploitation of the author’s 93-year-old father in a “sweetheart scam,” this Article proposes an aid to prosecuting elder exploitation in the form of state criminal statutes creating a permissive presumption of exploitation with regard to certain financial transfers from elders. The Article offers a specific statute and explains that it would be workable and constitutional. Preliminarily, the Article explores the scope of elder financial exploitation, discusses why it is grossly underreported and under-prosecuted, and analyzes practical, cognitive, and psychological reasons older adults are vulnerable, focusing on emerging research showing that even elders who lack obvious impairments are at risk.