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.