Unfair Dealing and the Older Adult: Understanding the Lures, Questioning the Cures

1. Unfair Dealing and the Older Adult:  Understanding the Lures, Questioning the Cures Professor Nina A. Kohn 2010 International Federation on Aging Conference

2. The Lures Susceptibility Older adults are attractive targets because they: • Have high rates of home ownership, good credit, & savings • Are disproportionately disposed to be polite • Frequently fear reporting fraud due to shame and concern about loss of independence • Are perceived to be poor witnesses against perpetrators

3. The Lures Outright scams, such as: • fake contests • fraudulent charities • home repair scams Sales of inappropriate products, such as • unsound investments (e.g., annuity fraud) • insurance for items already insured • predatory loans Theft and appropriation of assets through undue influence Tricksters and their tricks

4. The Cures Educate third parties Educate older adults Create alternatives Non-legal techniques

5. The Cures

6. The Cures Criminal enforcement • Common law or existing statutory crimes • New, specialized crimes • Enhanced penalties • Specialized prosecution units • Enhanced training and MDTs Civil enforcement • Common law or existing statutory claims • New, specialized causes of action Preventative legal measures Legal techniques

7. The Concern Unintended Consequences of Legal Reform Promotion of ageism Obfuscation of the fact scams are typically already crimes Undermining of older adults’ rights and liberties

8. The Cures “Undue influence” is defined as: use of “[a] person's role, relationship, or power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear of a vulnerable adult, or uses the person's role, relationship, or power to gain control deceptively over the decision making of the vulnerable adult. Undue influence is a crime when the victim is 65+ AND: a perpetrator uses their “undue influence” to “knowingly, by deception or intimidation” obtain, use, or try to obtain or use the victim’s assets with the intent to deprive the victim of those assets for the benefit of someone else. Spotlight on Undue Influence Laws: The Utah Example .

9. The Concern • Not all states define criminal “undue influence” • Other define it in comparison to misrepresentation or coercion Kansas: "Exploitation" means misappropriation of an adult's property or intentionally taking unfair advantage of an adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person. Spotlight on Undue Influence Laws

10. The Concern “Any person who has reasonable cause to believe that any person sixty (60) years of age or older has been abused, neglected, or exploited, or is self-neglecting, shall make an immediate report to the director of the department of elderly affairs or his or her designee.” – R.I. Gen. Laws § 42-66-8 Spotlight on Mandatory Reporting Laws

11. The Concern Recognize rights limitations Don’t be scared of “rights talk” Create a presumption against policies that undermine rights Avoiding Unintended Consequences

12. For more information ` Contact Information: Nina A. Kohn Associate Professor of Law Syracuse University College of Law nakohn@law.syr.edu Article: Nina A. Kohn, Outliving Civil Rights, 86 Washington University Law Review 1053 (2009).