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Hastings Law Journal

Abstract

This Note examines the elder abuse problem in the United States by describing: state responses to its "discovery" in the late 1970s as well as the debilitating reliance upon reporting; the currently available remedies and the hurdles to using those remedies; the ethical challenges to the states' primary abuse prevention tools, and the dramatic explosion in elder abuse that is already underway. Then, this Note describes American descent doctrines, and philosophies underlying exceptions to the doctrinal testamentary freedom and value-neutrality of intestate succession statutes. It proposes the Chinese behavior-based model of inheritance as an alternative inheritance scheme that, with its ability to punish misconduct and encourage familial ties, could reduce elder abuse without triggering many of the challenges to traditional prevention methods. Finally, this Note evaluates California Probate Code section 259, identifies why it represents a radical departure from the traditional American inheritance model, explains why it is in fact based upon the same principles as Chinese behavior-based inheritance statutes, and argues that a limited adoption of these principles would be possible, just, and effective in the fight against the rising tide of elder abuse.

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