Andrew Jay McClurg
Volume 65, Issue 4, 1099-1144
With seventy-eight million baby boomers in or nearing retirement, elder financial
exploitation has been labeled the “Crime of the 21st Century,” yet little has been
done to address the problem. While states and the federal government have passed
hundreds of laws protecting children based on the assumption they are vulnerable
and unable to protect themselves, older at-risk adults have been comparatively
ignored despite extensive research showing they too are vulnerable.
A substantial roadblock to prosecuting elder financial predators is the inability to prove
that the financial transfers at issue were the result of exploitation rather than legitimate
transactions. Many victims “voluntarily” part with their assets. To outsiders, the transfers
may look like gifts or loans when in fact they occur because of undue influence,
psychological manipulation, and misrepresentation. Even when property is taken by
stealth, the incapacity or death of the victim often precludes prosecutors from being able
to prove that the transfers were not legitimate.
This Article proposes the adoption of state criminal statutes that create a permissive
presumption of exploitation with regard to certain financial transfers from elders. The
Article offers a specific statute and explains how it would be workable and constitutional.
Preliminarily, the Article explores the scope of elder financial exploitation, discusses why
it is grossly underreported and under-prosecuted, and analyzes practical, cognitive, and
psychological reasons why older adults are vulnerable, focusing on emerging research
showing that even elders who lack obvious impairments are at risk.