Friday, March 9, 2007

The Role of Courts in Elder Abuse Cases

Our client, an older man, deeded his house to his late wife’s caregiver in return for her promise to care for him until his death. Within two weeks of the transaction, the caregiver threw him out of the house.

While this sort of thing did happen all too often in Florida (and elsewhere), there was almost no case law. After many hours, I did find one case holding that in a situation such as our client had experienced, the caregiver would be presumed to have acted fraudulently. The caregiver did not overcome that presumption, and our client regained the title to his home.

In the case discussed above, the judge simply issued an order voiding the deed that our client had given to the caregiver and returned ownership of the house to him.

The more interesting and important reason for the dearth of case law on elder abuse is that most incidents of elder abuse are never brought to the judicial system in the first place.

In many cases, the courts could play a critical role in protecting the current victim or other victims from abuse, compensating the victim for damages, enabling victims to recoup financial losses they've suffered, or punishing the perpetrator. Nonetheless, there are numerous reasons why victims of elder abuse do not seek relief from abuse or compensation for damages resulting from abuse through the civil justice system or cooperate with law enforcement officers and prosecutors who could bring criminal charges against the abusers.

Many of these cases may not be financially viable for the victim or the lawyer. A victim may not be able to pay for a lawyer's services because the victim has never had much money or because the victim's life savings were lost as a result of the exploitation that would be the subject of the lawsuit.

Slow pace of the legal process. The slow pace and customary delays of the legal process are particularly onerous to older persons in general and to those who have been abused in particular.

Lack of sensitivity. Lack of knowledge about and sensitivity to elder abuse victims among private lawyers and prosecutors, law enforcement officers, court personnel, and judges can also inhibit victims from bringing their cases to the judicial system. (Stiegel, 1995)

Civil or equitable remedies such as restitution, constructive trusts, and compensatory damages may be sought from a perpetrator of elder abuse in order to compensate the victim or “make the victim whole.” These remedies would be obtained through lawsuits for assault and battery, breach of fiduciary duty, conversion, false imprisonment, fraud, or negligence. There are also other traditional civil actions such as petitions for a guardian or conservator, or for a divorce or legal separation that may be used to prevent further abuse.

Even if a victim is able to overcome the reluctance to take legal action against the perpetrator, these types of legal actions raise the limitations and problems discussed previously...the slow pace of the judicial system, and the lack of knowledge about elder abuse among lawyers, prosecutors, law enforcement officers, and judges.

by Lori A. Stiegel, J.D. who specializes in elder abuse issues along with numerous legal references and case histories, story condensed for brevity entire story archived here >>

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