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

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

The Lures Tricksters and their tricks 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

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

The Cures

The Cures Legal techniques 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

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

The Cures Spotlight on Undue Influence Laws: The Utah Example “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..

The Concern Spotlight on Undue Influence Laws 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.

The Concern Spotlight on Mandatory Reporting Laws “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 §

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

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