Case StudiesPage Headings:
Introduction:Elder abuse, by it's very nature, is one of the most callous, insensitive, cowardly and heinous crimes imaginable. We all share a natural reluctance to consider that anybody, let alone a close friend or relative could be even remotely involved in elder abuse in any shape or form. There is an old saying "Where ignorance is bliss, 'tis folly to be wise". Why do people sub-consciously avoid facing the facts, turn a blind eye and prefer to accept that if they don't know what's going on, they don't have to make any hard decisions. It's a sorry inditement of human nature but, I personally feel that, this is the root cause of elder abuse being allowed to flourish and enjoy it's current free slather. Abuse of the elderly first came to public attention in the 1980's. The most prevalent form of abuse of older persons is by younger family members who are responsible for the care of their older relatives. Figures that are quoted in the literature possibly represent "only the tip of the iceberg". It is interesting to note that there are hundreds of references on elder abuse on the Internet from the USA, Canada and the UK and relatively few from Australia. The NSW Government would appear to be taking the lead in addressing this very sordid problem in Australia The Elderly Place:The types of abuse, their definitions, indicators of abuse as well as signs to look for in the abuser and the one abused are well handled in Elder Abuse on The Elderly Place by Marci Goldman-Stocks: - The Elderly Place This site is Alzheimer's specific with an emphasis on caregiving. The purpose of this site is to enlighten you on dementing diseases and help you by adding informational links to similar topics. The Clark County Prosecuting Attorney:"What is Elder Abuse? Is it Really a Crime?" and "Is Elder Abuse Common or Unusual?" are some of the topics covered in the Adult Protective Services for The Clark County Prosecuting Attorney: - Adult Protective Services The abuse, exploitation and neglect of our elderly is a disgrace. As the average age of our population continues to rise, the "dirty little secret" of elder abuse has quietly become a national epidemic. It is the responsibility of the State, the judicial system, law enforcement, health care providers, and our communities to protect the health and welfare of this vulnerable group. Elder abuse happens everywhere; in poor, middle class, and upper income households; in cities, suburbs, and rural areas. It is a problem that has no demographic boundaries. It is estimated that 80% of the care provided for the elderly is given by family members. Ironically, the abuser is often a family member who takes on the responsibility of care with the best of intentions, but due to the inevitable financial or emotional stress of the situation, loses control. National studies show that before the first abusive act, the caregiver typically has been caring for the elderly for 9 years, often with very little recognition or help. Sadly, because elderly victims of abuse live with and are dependent upon their abusers, they often suffer in silence. They may be reluctant to seek help because they fear loss of family ties or independence, or they may simply not know about the services available to them through Adult Protective Services. All senior citizens, caretakers, and children who have ageing parents, must be aware of the help that is available as well as the options they have. In 1985, Adult Protective Services Units were established throughout Indiana to investigate reports of abuse, neglect, or exploitation, and to assist in obtaining protective services for endangered adults. An "endangered adult" is defined by Indiana statute as any individual over 18 years of age, who is incapable by reason of mental infirmity or other incapacity of either caring for themselves or managing their property, and is harmed or threatened with harm as a result of neglect, battery or exploitation. Indiana Adult Protective Services, under the umbrella of the Family and Social Services Administration, provides an Investigator for each of the 15 Units around the state. Abuse of the elderly cannot be considered someone else's problem. By "minding our own business," the elderly will continue to suffer. We must all play a part. Growing old should not mean that we will become victims of abuse. Please report elder abuse. Abuse and neglect seldom happen overnight, it happens over time. Unless we take the time to notice, it will continue, and unless we take the time to get involved, it will get worse. Available to you in the Clark County Prosecutor's Office is an Adult Protective Service Investigator, victim assistance counselors trained in elderly investigations, and a staff of Deputy Prosecuting Attorneys, all highly qualified with a wealth of experience working with those who have had the unfortunate experience of becoming a victim. Please do not hesitate to call us. Our office stands ready to assist you in any way, whether it be an answer to a question, investigating a potentially abused relative, friend or neighbour, or assisting you, should you become a victim. This extract from "A Message from the Prosecuting Attorney" shows not only what can be done, but what is being done already in Clark County, Indiana, to provide a safer and better environment for the elderly and infirmed. The American Society on Aging:"Elder Abuse and Neglect: Prosecution and Prevention" is discussed in three papers written by Rosalie S Wolf, Paul Hodge and Pamela Roberts for the American Society on Aging: - American Society on Aging The Association for Protection of the Elderly:This is an Advocacy and Information Network for Nursing Home Residents. Mrs Judy Murphy is the founder of APE. The Association for Protection of the Elderly was founded to address the needs of vulnerable adults and keeps the public aware of adult abuse, neglect and exploitation. This Web site has links to a number of articles and related topics to help the elderly achieve a better and safer life style. To this end there are quality articles such as "Finding a Good Nursing Home -- FAST" by Patricia Nelson, background information on APE advocate Ila Swan and a wonderful promotion of Dr Diane G Armstrong's breakthrough book The Retirement Nightmare: How to Save Yourself from Your Heirs and Protectors. This book was published in May 2000 by Prometheus Books. It is the first book in America to focus on the abuse rather than the use of today's conservatorship and guardianship codes, exposing a web of state laws that were originally created to protect "infants and lunatics" and are now being used to strip elderly men and women of financial and personal independence during their golden years of retirement. People should know how to protect themselves from unwanted intrusions on their lives. Shouldn't we all be able to look forward to a future free from such unexpected obstacles to our happiness? Sadly, families across America are being torn apart by unwanted and unnecessary conservatorship or guardianship litigation. Until now, they have not had a voice to express their outrage. It is Dr Armstrong's fondest hope that The Retirement Nightmare will speak for them and, in so doing, provide the tools all successfully ageing men and women will need to protect themselves from these ruinously expensive proceedings during their retirement years. The Association for Protection of the Elderly What's Wrong with Existing Laws?There is a school of thought that considers existing laws do not adequately protect the estates of infirmed seniors against fraud in: - What's Wrong with Existing Laws? A last will & testament is not adequate to protect the estate of a stroke victim, Alzheimer/dementia sufferer, or other infirmed senior citizen against mistake, negligence, fraud, undue influence, and other wrongdoing. Why? Existing laws do not adequately protect such individuals against other persons (typically family members, friends and lawyers) who would wrongfully exploit their diminished mental capacity so as to influence them into signing new wills or other legal documents, including codicils, deeds, and trusts. Further, existing law waits until someone challenges a document to decide whether the document was the product of incompetency, mistake, negligence, fraud, duress, undue influence, or other wrongdoing. When documents that are used to transfer an infirmed senior's property do not become known to the affected parties until after the infirmed senior has died, it is too late to investigate their complaints on the basis of the infirmed senior's direct testimony. Consequently, their complaints must be decided by presumption and circumstantial evidence, some of which is likely to be fraudulent. The above problems are discussed at length on this Web site and three measures proposed that would more adequately protect the estate of such seniors. This site is well worth a visit. Michael Schwartz' Compendium of Elder Abuse Law:Actual case studies are found on Michael Schwartz' Compendium of Elder Abuse Law in: - Elder Abuse Law In the first case, the only son is the perpertrator of financial abuse while his 70 year old father suffered a stroke and was recovering. In the second case, three nephews of an 82 year old woman's deceased husband misappropriated hundreds of thousands of dollars from this woman with dementia leaving her destitute, uncared for and disoriented. Lex Scripta:The Lex Scripta Web site is intended primarily as a guide to finding written legal reference material on the Internet. But it is much more than a catalogue or index of legal reference sites. Through the links found on this site, practising members of the legal profession, as well as legal academics and students, should be able to locate any Web-based resource likely to be useful in the course of their daily work. Almost all of the linked sites provide free resources. There are some very worthwhile (and also some less worthwhile) pay-sites available on the Internet for legal practitioners. The object of Lex Scripta is not, however, to provide unpaid advertising for pay-sites. It's object, rather, is to provide links to the huge resources of free sites which exist on the Internet. Lex Scripta is aimed specifically to assist legal research by members of the legal profession in Queensland. But there is much that should be useful for lawyers in other parts of Australia and overseas, for people engaged in academic legal research, and for the interested lay-person, to help them find what they are looking for quickly and efficiently. Lex Scripta was constructed and is maintained by Anthony J H Morris, LLB(Hons.), QC. Anthony J H Morris is a barrister and Queen's Counsel, practicing at the private bar in Queensland. The following Web sites are well worth a visit: - The Legal Profession For Non-Lawyers Wills, Testamentary Capacity, and Undue Influence"Wills, Testamentary Capacity, and Undue Influence" is a brilliant paper by Dr Irwin N Perr MD, JD, Professor of Psychiatry and Professor of Environmental and Community Medicine at the Rutgers Medical School - CMDNJ, Piscataway, NJ, USA. It was presented by him at the Annual Meeting of the American Academy of Forensic Sciences on October 17, 1980. This article appears on pages 15-22 of the Bulletin of the AAPL, Vol IX, No 1. The AAPL is the American Academy of Psychiatry and Law. Dr Perr served as its president during the mid-1980s. The article defines Undue Influence, comparing and contrasting fraud, duress and undue influence. A will can be voided for various reasons. This article's central theme is that "The issue of undue influence . . . is important in that a mental condition that does not reach the level necessary to justify a finding of testamentary incapacity may, in combination with other circumstances, result in the voiding of a will". Psychiatrists, sophisticated in law and psychiatry, are usually acquainted with the issue of testamentary capacity. Wills are legal instruments by which persons dispose of property after death in accordance with their wishes. Wills are created at the time of the making of the will; they become effective at death unless revoked or succeeded by a later will before death. One of the necessary elements in the making of a will is the mental capacity to do so at the time that it is prepared. If a preson did not have the necessary capacity to make a last testament (testamentary capacity), then the will will be declared void. Wills are presumed to be valid if they conform with the technicalities required by law; those who would contest a will have the burden to demonstrate a lack of capacity by the deceased. This lack of capacity is usually shown by the presence of a mental disease at the time of the making of the will. It must be of such a degree that the testator does not know that a will is being made or the extent of the bounty or property owned or even the identity and relationship of those who, under ordinary circumstances, would be recipients of the testator's largesse. The essence of undue influence invalidating a will is that the influence of another person must be such that it substitutes the wishes of that other person for that of the testator. In other words, the undue influence must destroy the free agency of the testator and substitute that of another. There must be an element of coercion, compulsion or restraint so that the will does not represent the wishes of the testator. Defamation using partial truths and causing bitter, angry feelings has been implicated in successful claims of undue influence. Undue influence and fraud are closely associated. Fraud, duress, and undue influence are frequently used synonymously and interchangeably, although fraud in the sense of deceit is ground for a will contest separate and distinct from undue influence. The difference between undue influence and frand is that free agency must be destroyed in the former, while it need not in the later. An example of fraud is the situation where one influences a testator that another relation has stirred up trouble or has attempted to take the life of the testator. Fraud involves trick, deception, artifice; the testator is deceived and influenced by false statements. The content of earlier wills may be admitted to show undue influence in a later will. Very important is the consideration of whether a beneficiary charged with undue influence occupied a confidential or fiduciary relationship with the testator. This fact may be considered in association with suspicious circumstances, such as the beneficiary's participating in the procuring, preparation, and execution of the will or the fact that the testator's mental functioning was impaired. The judge must consider not only: -
Psychiatrists are generally familiar with the issues involved in teatamentary capacity, but not with the nuances involved in undue influence. The legal factors in determining undue influence where the will of one party is substituted or imposed on the testator has been reviewed. Most important are: -
Examples of actual occurrences have been presented. They illustrate the fact that psychiatric evaluation may be most important in determining the validity of a will even where there is no finding of testamentary incapacity. In such cases, the psychiatric or other medical information is only one factor to be considered by the judge along with other elements to be considered by the court. Undue influence is therefore another area of the law about which forensic psychiatrists should be familiar and knowledgeable. Hopefully this article will serve that purpose. This complete article may be accessed on Tom Field's Directory Site at: - Wills, Testamentary Capacity, and Undue Influence For additional comments on Case 1: - Case 1 - Additional Comments Dr Perr has provided us some facts in the three cases he describes, but he hasn't provided us with enough facts. This is a problem that is common, in one form or another, to most of all legal literature. That is why it is noteworthy that the Web site of Tom Fields is exhibiting all the evidence, including the Defendant's own testimony, in the matters regarding the Estate of Irving Fields: - Links to EVIDENCE of Fraud and Undue Influence in the Estate of Irving Fields (1919-1991) The Site Directory of Tom Fields also lists many other interesting articles on this very important area of Wills and Undue Influence. One of these excellent articles is "Undue Influence and Written Documents: Psychological Aspects", by M. Singer, PhD. Click on the link below to visit Tom Fields Site Directory: - Tom Fields Site Directory IntroductionClick Here to Return to My Home Page |