Unfair Dealing and the Older Adult: Understanding the Lures, Questioning the Cures
Professor Nina A. Kohn
2010 International Federation on Aging Conference
The Lures
Susceptibility
Older adults are attractive targets because they:• Have high rates of home ownership, good credit, & savings• Are disproportionately disposed to be polite• Frequently fear reporting fraud due to shame and concern
about loss of independence• Are perceived to be poor witnesses against perpetrators
The Lures
Tricksters and their tricksOutright scams, such as:
• fake contests• fraudulent charities• home repair scams
Sales of inappropriate products, such as • unsound investments (e.g., annuity fraud) • insurance for items already insured• predatory loans
Theft and appropriation of assets through undue influence
The Cures
Non-legal techniquesEducate third parties
Educate older adults
Create alternatives
The Cures
The Cures
Legal techniquesCriminal enforcement
• Common law or existing statutory crimes• New, specialized crimes • Enhanced penalties• Specialized prosecution units• Enhanced training and MDTs
Civil enforcement• Common law or existing statutory claims• New, specialized causes of action
Preventative legal measures
The Concern
Unintended Consequences of Legal Reform
Promotion of ageism
Obfuscation of the fact scams are typically already crimes
Undermining of older adults’ rights and liberties
The Cures
Spotlight on Undue Influence Laws: The Utah Example
“Undue influence” is defined as: use of “[a] person's role, relationship, or power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear of a vulnerable adult, or uses the person's role, relationship, or power to gain control deceptively over the decision making of the vulnerable adult.
Undue influence is a crime when the victim is 65+ AND:a perpetrator uses their “undue influence” to “knowingly, by deception or intimidation” obtain, use, or try to obtain or use the victim’s assets with the intent to deprive the victim of those assets for the benefit of someone else.
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The Concern
Spotlight on Undue Influence Laws• Not all states define criminal “undue influence”
• Other define it in comparison to misrepresentation or coercion
Kansas: "Exploitation" means misappropriation of an adult's property or intentionally taking unfair advantage of an adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person.
The Concern Spotlight on Mandatory Reporting
Laws“Any person who has reasonable cause to believe that any person sixty (60) years of age or older has been abused, neglected, or exploited, or is self-neglecting, shall make an immediate report to the director of the department of elderly affairs or his or her designee.”
– R.I. Gen. Laws § 42-66-8
The Concern
Avoiding Unintended Consequences
Recognize rights limitations
Don’t be scared of “rights talk”
Create a presumption against policies that undermine rights
For more information
` Contact Information:Nina A. Kohn
Associate Professor of Law Syracuse University College of Law [email protected]
Article: Nina A. Kohn, Outliving Civil Rights, 86 Washington University Law
Review 1053 (2009).