Thursday, August 14, 2014
University of Memphis Law Professor Andrew Jay McClurg's article, "Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation," appears in May 2014 issue of the Hastings Law Journal. Professor McClurg proposes that states adopt "state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders." In correspondence, Professor McClurg points to the fact that on the surface it may appear that older persons -- victims -- are "voluntarily" parting with assets, when "in fact [the transactions] occur because of undue influence, psychological manipulation and misrepresentation."
Professor McClurg stresses the need for a statutory presumption to give prosecutors an effective tool to hold offenders accountable. His proposal has already had direct impact, in the form of Florida legislation, Fla. Stat. 825.103(2) signed into law June 20, 2014 and effective on October 1, 2014. Key language from the provision includes:
"Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transfer or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation."
The Florida provision applies "regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates...." Further, the new Florida provision does not apply to "persons who are in the business of making loans" or "bona fide charitable donations to nonprofit organizations that qualify for tax exempt status."
In cases tried to a jury under the Florida statute, the law provides that jurors "shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection." The law's presumption "imposes no burden of proof on the defendant."
UPDATE: Professor McClurg wrote again to explain that he worked directly with the Florida Elder Exploitation Task Force and with Florida Representative Kathleen Passidomo to secure passage of the new law. Professor McClurg's presumption proposal was introduced as part of H.B. 409, which passed unanimously through the two houses of the state legislature. According to Professor McClurg, the statute is the only one of its type in the nation. Thanks for the clarification, Andrew!