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Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America
In addition, the nature of the relationship between perpetrators of financial abuse and their victims may create an expectation by third parties that at least some financial resources will flow from the victim to the perpetrator and this may obscure detection of abuse (Dessin, 2000). Indeed, the perpetrator may feel entitled to the elder person’s assets and may point to the elder person’s apparent tacit consent in attempting to establish the legality of a transfer. Such consent is unlikely to be forthcoming or is relatively easily dismissed as ineffectual when physical abuse is involved.
In general, third parties may be more likely to respond to and report instances of physical abuse than financial abuse. Within our society, victims of physical violence tend to receive greater attention, sympathy, and support than victims of financial exploitation. For example, the victims’ rights movement, which in recent years has brought attention to the needs of victims of violent crime, has not similarly focused attention on the plight of victims of financial crimes (Nerenberg, 2000c). Also, children may elicit more sympathy and protection than the elderly and thus reports of their abuse may be more forthcoming.23 These factors suggest that models for detecting and preventing financial abuse of the elderly may need to be more proactive than models used to respond to child abuse.
Decision-Making Capacity of Children and the Elderly
Another reason for adopting a model for addressing financial abuse of the elderly that is relatively distinct from that used to respond to child abuse is that issues associated with the decision-making capacity of the elderly are quite different from those associated with children (Nerenberg, 2000a). Unlike children, elder persons at some point generally possessed the capacity to handle their financial affairs and exercised control over these affairs. All adults are presumed to possess this capacity unless shown otherwise in a legal proceeding. Until an elder person is determined to lack decision-making capacity, the elder person has the right to make what may seem to be poor or foolish financial decisions (Gilbert, 1986; Macolini, 1995; Wilber and Reynolds, 1996).24 In addition, to strip or limit the ability of elder persons to make such decisions can be psychologically devastating as it may represent for them the removal of the last vestige of independence and emphasize their physical and mental decline, which in turn may accelerate this decline (Dessin, 2000). As a result, many elder persons will actively
It has been argued that 1 of 3 cases of child abuse is reported compared to 1 in 5 or 1 in 15 cases of elder abuse (Rosenblatt et al., 1996).
As will be discussed below, an elder person, like all persons, is entitled to legal protection if a financial decision is the result of fraud or undue influence.