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Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America
victim as an aggravating factor (Dessin, 2000; Moskowitz, 1998b; Nerenberg, 2000c). Alternatively, perpetrators may be prosecuted under a specific penal statute that addresses (1) abuse of vulnerable adults (which either by legislation or by judicial interpretation has been extended to include elder persons), (2) elder abuse in general, or (3) financial abuse of the elderly specifically (Dessin, 2000; Moskowitz, 1998b). It has been estimated, however, that fewer than half of the states provide criminal penalties that directly address elder abuse (AARP, 2001). Advocates for the elderly assert that the federal government should encourage all states to make financial exploitation of older people a specific criminal offense to promote its prosecution (AARP, 2001). Empirical evidence, however, has not been generated to establish that the availability of such specifically targeted penal statutes results in either increased prosecution rates or deterrence of such crimes.
Although there may be a tendency to turn first to the criminal justice system (Mixson et al., 1992),47 a range of civil remedies is also available for responding to financial abuse of the elderly. For example, in 1991 the California legislature enacted the Elder and Dependent Adult Civil Protection Act (CAL. HtmlResAnchor Welf. and Inst. Code §5600 et seq.).48 This legislation established civil remedies against individuals and entities that committed elder abuse and provided incentives for attorneys to pursue such cases. It has been asserted, however, that most litigators ignored this act until a relatively recent opinion by the California Supreme Court established that considerable financial exposure can result from elder abuse (Delaney v Baker, 971 P.2d 986 (Ca. 1999); Mehta, 2000).
In general, civil litigation for financial abuse of the elderly has been infrequent (Moskowitz, 1998a), although it has been suggested that there will be more such litigation as civil and criminal agencies work together more cooperatively (Heisler and Quinn, 1995). A number of difficulties have been identified in conjunction with pursuing a civil remedy for financial abuse of the elderly. They include that the standard of proof typically applied to abuse cases in the civil system is clear and convincing evidence that the abuse occurred. Some advocates believe that this standard is too
But see Heisler (2000), “Because elder abuse was rarely viewed as criminal conduct, litigation historically has been brought in civil courts” (p. 52).
Similarly, Illinois established that treble damages and attorney fees be available for a civil judgment deciding property has been converted or stolen from an elder person by threat or deception (Moskowitz, 1998b).