A New Approach to Elder Abuse: Changing Presumptions and Lives

 

This guest post is from Evan Howard, Regent Law 2L:

Elder Abuse is widespread in American society. In 2010 alone, over 5 million Americans aged 60 and older were financially or physically abused.¹ In Virginia specifically, more than 12,000 reports of elder abuse are received each year.³ Many states, including Virginia, have antiquated laws with high burdens of proof, making cases of elder abuse difficult to pursue. That is why an estimated thirteen of fourteen cases of elder abuse go unreported.²

Other states have begun to formulate a new approach to elder abuse. In 2014, Florida passed a statute that allowed a permissive presumption of elder abuse if there is a transfer of money or property over 10,000, by a person aged 65 or older to (1) a nonrelative the transferor knew for less than 2 years and (2) for which the transferor did not receive equivalent consideration either in goods or services. Similarly, California has a presumption of financial abuse when the person taking the property has actual or constructive knowledge that the conduct would be harmful to the elder adult. California and Florida provide two examples of states who are blazing new trails in the fight to protect the elderly. 

In contrast, Virginia’s mandatory reporting laws are simply ineffective to combat the epidemic of elder abuse. It follows that Virginia should change course by adopting a permissive presumption that particular financial transfers from elders to non-relatives occurred due to exploitation. Moreover, Virginia could add an attorney’s fees provision in the new statute, which would encourage more attorneys to litigate on behalf of elders who are suspected of being abused. 

Regardless of the approach adopted, Virginia legislators need to do more to ensure that the elderly are protected and afforded broad protections under the law. The Bible highlights the importance of this issue when it states, “stand up in the presence of the aged, show respect for the elderly and revere your God.” Leviticus 19:32 (New International). 

 

References:

1.      Priscilla Vargas Wrosch, What More Can Congress Do About The Elder Abuse Epidemic? A Proposal For National Movement, 23 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2013).

2.     Travis Hunt, Disincentivizing Elder Abuse Through Disinheritance: Revamping California Probate Code § 259 And Using It As A Model, 2014 B.Y.U. L. REV. 445, 452 (2014).

3.     Virginia Lawyers Weekly, The Ugly Truth about Financial Elder Abuse: Virginia Lawyers Weekly | VA Lawyers Weekly (2014), https://valawyersweekly.com/2014/02/20/the-ugly-truth-about-financial-elder-abuse/ (last visited Nov 15, 2023).