Equitable Fraud: Material Exploitation in Domestic Settings
Elder Law Review, Vol. 4, 2005
27 Pages Posted: 6 Mar 2006
The security and well-being of older adults in the "grey zone" - not incapable but more vulnerable - is a key area of concern among practitioners and legislators. The diminished capability associated with disease may be gradual and spotty, a "grey zone" that can last for years. Other, non-medical factors are also significant: vulnerability arises by reason of an individual's total life situation, including relationships, education, experience, personality, and connection to society.
Protecting the interests of the vulnerable but capable has been considered in terms of protection from abuse, and/or in terms of capacity. Each approach has significant conceptually structural problems. Unless a very narrow definition of "abuse" is used (essentially replicating the criminal offences dealing with assault and theft) adult protection legislation has inappropriately paternalistic aspects; older adults are entitled to make objectively foolish choices, take risks, or prefer new, disreputable friends over older, staider ones. Older adults do not require protection from the consequences of their own choices, freely made. A finding of incapacity would resolve the difficulty by simply re-categorising the vulnerable person as incapable, a response that will often be excessive and result in an unwanted and unnecessary loss of independence. Modern least-intrusive adult guardianship legislation attempts to modify that "all or nothing" outcome through a scheme of graduated capacities. In reality neither paradigm - abuse or capacity - realistically captures or appropriately responds to the range of situations in which the vulnerable but capable adult requires the assistance and support of the law. Those situations are most accurately understood with reference to the conceptual framework of equitable fraud.
Keywords: elder abuse, financial abuse, material exploitation, undue influence
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