Thursday, March 17, 2011
Irene D. Johnson (Professor of Law, Pace University School of Law) recently published her article entitled Preventing Identity Theft and Other Financial Abuses Perpetrated Against Vulnerable Members of Society: Keeping the Horse in the Barn Rather Than Litigating Over the Cause and/or Consequences of His Leaving, 79 UMKC L. Rev. 99 (2010). The conclusion is below:
At present, Vulnerable Individuals sign Important Documents without having the general mental capacity and/or understanding of the specific document and its consequences to validly execute this document. The writing, which is sometimes the product of fraud or overreaching, will then later be challenged, with much time and money expended to determine the capacity of the Vulnerable Individual at the time of the signing. On another front, many Vulnerable Individuals are the targets of financial abuse by strangers in the form of identity theft or financial scams. While criminal statutes penalize the perpetrators of these schemes, the affected Vulnerable Individuals are often left with few resources during the pendency of the prosecution and possible civil suit.
Many of these problems could be avoided by adopting the proposed plan to require that Vulnerable Individuals be evaluated for competency before they can sign an Important Document.