Sunday, November 30, 2014
Travis Hunt (J. Reuben Clark Law School, Brigham Young University) recently published a comment entitled, Disincentivizing Elder Abuse Through Disinheritance: Revamping California Probate Code § 259 and Using It as a Model, 2014 BYU L. Rev. 445 (2014). Provided below is an excerpt from the introduction of the comment:
Police found Ms. Brown, a seventy-four-year-old woman, partially fused to an arm chair surrounded by her own filth.1 Her son and primary caretaker, James Owens, left her in the chair for days, allegedly complying with her request to let her die at home.2 Luckily for Ms. Brown, James tried to endorse her social security check, and authorities eventually found her.3 Ms. Brown was pried from her arm chair and died of a stroke in the hospital several days later, and James was eventually sentenced to one year in prison.4 Although it is shocking that police found Ms. Brown in such a life-threatening and atrocious condition, it is almost equally shocking that nothing in Missouri's elder abuse statutes would keep James from inheriting from his mother's estate.5
Accounts like this are disconcerting for several reasons. First, for every disheartening story of elder abuse, there are several--perhaps dozens of--other stories that are never reported. Second, abusers have an eighty-four percent chance of living in a state that has not yet enacted a statute that disinherits elder abusers.6 Third, even in the eight states that have recognized that stories like Ms. Brown's are a major problem,7 the statutes that states have enacted to deal with this problem fail to provide strong incentives for people closest to elders to report abuse.
Existing scholarship tends to welcome elder abuse disinheritance statutes without extreme criticism, noting their potential deterrent effects.8 However, I argue that these statutes have severely limited their potential deterrent effects by relying too strongly on antiquated notions of inheritance rights, by refusing to treat many forms of elder abuse as perpetrations that can be deterred by probate law, and by refusing to disengage themselves from criminal law.
Most enacted elder abuse disinheritance statutes suffer from one of two common deficiencies. First, six of the eight states that have enacted such statutes require a criminal conviction, which deprives family members of an incentive to report and prosecute the abuse because they may lack evidence to support a conviction beyond a reasonable doubt. Second, three of the states provide for disinheritance only in cases of financial elder abuse, relying on false ideas about which kinds of abusive acts actually relate to inheritance.