demanding considering the difficulties noted above in establishing that financial abuse occurred and that a preponderance of the evidence standard would be better (Nerenberg, 2000c).
Another barrier to the pursuit of a civil remedy is the frequent unwillingness of attorneys to handle these cases (Moskowitz, 1998a, 1998b; Nerenberg, 2000c). Factors attributed to this shortage are the lack of incentives for attorneys to take such cases, which can be financially risky for the attorneys who must typically invest considerable time in the case and risk not getting paid if the victim dies before the case is resolved (Moskowitz, 1998b; Nerenberg, 2000c). Also, attorneys’ fees may be difficult to collect as the perpetrator may be judgment proof and judges may be unable or reluctant to award such fees (Nerenberg, 2000c). If attorneys’ fees are not available from the perpetrator, the misappropriated property may represent the elder person’s life savings but still represent a relatively small sum in comparison to the attorneys’ fees and the costs of litigation (Moskowitz, 1998b). Publicly funded legal assistance programs could provide an alternative source of attorneys, but these programs have been significantly curtailed in recent years (Nerenberg, 2000c). Problems of proof have also been cited as a disincentive for attorneys considering whether to accept such a case as victims often suffer from diminished mental capacity, memory loss, or speech difficulties (Moskowitz, 1998b). In addition, such cases require multiskilled attorneys who possess both litigation and financial skills (Nerenberg, 2000c).
Another barrier is the lack of agreement over what level of decision-making capacity is needed for various contractual agreements. Although there is general agreement over the level of capacity necessary to make a will, there is less agreement, for example, over the level of capacity needed to give gifts or to get married (Nerenberg, 2000c). The following is a discussion of some specific civil remedies that may be available.
Among the civil penalties for financial abuse are traditional tort remedies for conversion and fraud (Dessin, 2000). For the reasons discussed above, attorneys have been generally reluctant to pursue such civil remedies on behalf of elderly clients who have been the victims of financial abuse. One advantage, however, of these remedies is that punitive damages may be available against the perpetrator. For example, in 1998 the Alabama Supreme Court approved an award of punitive damages to a couple who were defrauded by an insurance agent into cashing in their paid-up policy and buying other coverage (Frolik, 2001). At the same time, curbs on punitive damages have been instituted in a number of states, and many judges are reluctant to allow them to be awarded.