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Hastings Law Journal

Abstract

With seventy-eight million baby boomers in or nearing retirement, elder financial exploitation has been labeled the “Crime of the 21st Century,” yet little has been 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 that the financial transfers at issue were the result of exploitation rather than legitimate transactions. 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. Even when property is taken by stealth, the incapacity or death of the victim often precludes prosecutors from being able to prove that the transfers were not legitimate. This Article proposes the adoption of state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders. The Article offers a specific statute and explains how 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 why older adults are vulnerable, focusing on emerging research showing that even elders who lack obvious impairments are at risk.

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