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 nakohn@law.syr.edu

Article: Nina A. Kohn, Outliving Civil Rights, 86 Washington University Law

Review 1053 (2009).