Presumed Abuse: Restoring Elder Justice in the 21st Century by Enacting a Presumption of Abuse and Disinheriting Abusers

• Publication year: 2016
• Author: By Gurney F. Pearsall, III

PRESUMED ABUSE: RESTORING ELDER JUSTICE IN THE 21ST CENTURY BY ENACTING A PRESUMPTION OF ABUSE AND DISINHERITING ABUSERS

By Gurney F. Pearsall, III^*

Introduction

Sometimes the smallest changes leave in their wake the most impressive results. A small change in the way that courts process the abuse of elders and their estates is now needed to bring elder justice into the 21^st Century, because probate reform has demonstrably failed the keep pace with recent, major developments. The evolving structure and role of the family in modern American society,¹ the lengthier and increasingly isolated lives of elderly Americans,² and the oncoming retirement of about 80 million "baby boomer" Americans have led to a widespread and increasing rate of abuse directed at elders and their estates.³ In the next three decades, the baby boomers that constitute over a fourth of the American population will double the amount of Americans living in retirement.⁴ These trends have sparked a trend in elder abuse. Well over five million Americans aged 60 and over endured physical or financial abuse in 2010 alone,⁵ indicating that physical and financial elder abuse has skyrocketed by 50% since 1980.⁶

Recognizing that elder abuse is often intrinsically linked with a desire to take from the victim's estate, this Essay argues that state legislatures can deter predators from harming several million more of the most vulnerable Americans by enacting a legal presumption that, subject to certain enumerated affirmative defenses, allows (but does not compel) fact finders to presume that abuse has occurred. Specifically, the statutes will permit fact finders to presume elderly abuse if a prosecutor establishes beyond a reasonable doubt that a person aged 60 or over has sustained unusually serious wounds or has made an inter vivos transfer of at least $2,000—or at least .5% of his or her net worth, if $2,000 is less than .5% of his or her net worth—to a person without reciprocation. The statute will then state that individuals convicted of elder abuse will be disinherited from their victim's estate.

Research indicates that the prosecution of elder abuse is primarily held back by the inherent difficulty of proving whether a bruise resulted from assault or accident, and the inherent difficulty of proving that a financial transfer resulted from abuse instead of free will.⁷ As in res ipsa loquiter personal injury cases, the circumstances in the proposed statute speak for themselves to indicate abuse. By shifting to the accused person the burden of proving the elderly victim's consent or lack thereof, this presumption will help prosecutors convict individuals who lie, cheat, and steal their way into the estates of the most defenseless Americans. The conviction for abuse will then result in what an elder abuser would likely consider the ultimate sacrifice—disinheritance. This Essay investigates the landmark U.S. Supreme Court case County Court of Ulster County, New York v. Allen to look into the legal and practical viability of enacting a statutory presumption of abuse and an abuse-related bar to succession.⁸

Using the Allen Precedent to Implement the Presumption of Abuse

A. The Case Law in Allen

In County Court of Ulster County, New York v. Allen, the Supreme Court analyzed the legality of a New York statutory presumption that, subject to certain enumerated exceptions, every person in a vehicle jointly possesses a firearm found in the vehicle.⁹ In Allen, three adults and a minor were arrested after a traffic stop revealed two handguns in the minor's open handbag.¹⁰ All four of the defendants were convicted, but the appellate court found that the presumption was invalid for being arbitrary and prone to unfair applications.¹¹ The appellate court reasoned that if a hitchhiker had been a defendant in the vehicle, then the presumption would arbitrarily and rather absurdly apply to that hitchhiker.¹²

The Supreme Court disagreed with that analysis. Rejecting the hitchhiker hypothetical as "implausible," the Court ruled that it is improper analysis to imagine an extreme hypothetical to which a presumption would be wrongly applied.¹³ Indeed, a prosecutor would most likely not prosecute the hitchhiker because applying the presumption to him would run so contrary to common sense. Even if the prosecutor were to prosecute, the jury could see the absurdity of applying the presumption, so long as the jury instructions made it clear that the presumption was purely permissive, not mandatory. In defense of presumptions, the Supreme Court observed, "presumptions are a staple of our adversary system of fact finding."¹⁴ Indeed, there are "hundreds of recognized presumptions" in the American legal system.¹⁵ The Court outlined a two-prong test for the analysis of presumptions under the Due Process Clause: first, the facts must bear some rational connection to the presumed facts, so as not to be arbitrary; and second, the presumption must not seriously interfere with fact-finding.¹⁶

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The Court reasoned that permissive presumptions do not burden defendants because, as devices that merely permit fact finders to presume certain facts, permissive presumptions do not relieve the State from its duty to produce evidence and persuade a fact finder beyond a reasonable doubt.¹⁷ By contrast, mandatory presumptions struck the Court as "far more troublesome" because they can excuse the State from its burden of persuasion beyond a reasonable doubt.¹⁸ Later case law has come to the conclusion that mandatory presumptions violate the Constitution when they relieve the State of its burden of proof, but do not violate the Constitution where they merely shifted the burden of production to the defendant.¹⁹

B. Policy Concerns Addressed in a Presumption of Abuse

While the presumption of abuse could be mandatory, a permissible presumption of abuse is sufficient to stem the tide of elder abuse. This is because even a merely permissible presumption will help prosecutors withstand directed verdicts of acquittal in the all-too-likely event that the elder victim's unavailability for reasons of incapacity, death, or refusal to cooperate has damaged the prosecutor's case-in-chief.²⁰ By allowing a trial judge to overlook the victim's unavailability and still find that a reasonable jury could be convinced beyond a reasonable doubt of the defendant's guilt, the presumption of abuse bolsters prosecutors without adding any additional burdens onto defendants.²¹ The presumption merely makes it easier for the court system and its fact finders to process a crime with a state of mind that is difficult or impossible to prove.

State legislatures should enact legislation allowing fact finders to presume that an elderly person has not consented to receiving an unusually serious bruise or has not consented to "donating" especially large financial transfers to others. Since the conceptual framework behind such legislation should be flexible enough to meet each state's unique demographic needs, the language proposed here will provide only a model statute that outlines the facts most states will likely rely on in allowing fact finders to presume the victim's lack of consent. "Abuse," for instance, is used throughout this Essay as a placeholder that each state can replace with its unique legislative language, be it "undue influence" or some other legal term of art. To minimize the possibility of coincidence and to comply with the Court's insistence that presumptive facts bear some rational relationship to the actual facts of a case, the statute below will list a number of elements for the prosecution to prove beyond a reasonable doubt.

C. The Presumption Statute's Model Language

A model statute that gives rise to the presumption of abuse would contain language as follows: "The rebuttable presumption of elder financial abuse is triggered when the prosecution shows by clear and convincing evidence that a person aged 60 or over has sustained unusually serious wounds or has made an inter vivos transfer of at least $2,000—or at least .5% of his or her net worth, if $2,000 is less than .5% of his or her net worth—to a person without receiving any reciprocal...