Concrete Windows of Chalk
This is the second installment on this topic. In the first post, I gave an overview of vulnerable elders and the criminal nature of elder abuse and exploitation laws and also the civil remedial law background of the slayer statute. Why is Physician Assisted Death (PAD) mentioned in the title? Because the now-dead bill in the Colorado legislature had NO reporting requirements, which I thought was a very bad idea that could give predators of frail and ill elders in Colorado a bit too much cover for their misdeeds! In this continuation on the topic of vulnerable elders and the slayer statute, I look at some of the state laws that have broadened their slayer statutes to include elder abuse.
Elder Abuse Laws Can Be Both Criminal and Civil in Nature and State or Federal
In this post, the focus I use on elder abuse as primarily criminal in nature, meaning there are criminal penalties upon conviction and these of course vary from state to state. The Elder Justice Act of 2009, as part of the Affordable Care Act, coordinated actions to combat elder abuse across the federal government. My overview today will be confined to looking at state statutes, not federal legislation. The inclusion of elder abuse in a slayer statute expands the scope of who can be disinherited. Keep in mind there are a wide range of civil remedies which may be available to an abused elder.
The Abuser/Slayer Statutes Cover a Diverse Variety of Abuse
As I wrote in a previous post, Washington is one of eight states that have broadened slayer rules to apply in some form to abusers of elders. The other seven states that have expanded their disinheritance laws to preclude abusers from inheriting from their victims are Arizona, Oregon, California, Illinois, Kentucky, Maryland, and Michigan. State statutes vary as to the type of abuse that triggers application of the law.
In contrast with Washington, which expanded its slayer law to include only financial abuse, some jurisdictions have amended their laws to also include physical, sexual, and psychological abuse. In addition, states differ as to whether a criminal conviction of abuse is necessary to trigger application of the rule as well as whether the rules can be applied retroactively.
Arizona and Maryland have also expanded their disinheritance and slayer rules to disqualify persons on the basis of financial exploitation of vulnerable adults. For example, in Arizona, the statute reads:
A person who is in a position of trust and confidence to a vulnerable adult shall use the vulnerable adult’s assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person’s relatives. Ariz. Rev. Stat. Ann. § 46-456 (2014).
Maryland’s statute has similar wording: [A] person may not knowingly and willfully obtain by deception, intimidation, or undue influence the property of an individual that the person knows or reasonably should know is at least 68 years old [or a vulnerable adult] with intent to deprive the individual of the individual’s property. Md. Code Ann. Crim. Law § 8-801(e) (2011).
These statutes do not include physical, sexual, or psychological abuse as triggers for application of the slayer and abuser law. The Arizona law requires the abuser to be in a position of “trust and confidence.” This trust and confidence, or “confidential relationship” as it is often called in the law, contributes to the vulnerability of the person abused or slain. The Restatement [Third] of the Law of Restitution and Unjust Enrichment devotes §43 to a discussion of fiduciary (as in agent under a power of attorney, etc.) or confidential relationship. Interestingly, the Arizona law does not appear to encompass situations where a would-be beneficiary lacks a fiduciary or confidential relationship to the vulnerable adult.
Some other states that have expanded their slayer or disinheritance laws to include abuser provisions (California, Illinois, Kentucky, Michigan, and Oregon) have amended their laws to apply to physical abuse and neglect in addition to financial exploitation. In Oregon, an “abuser” is defined as “a person who is convicted of a felony by reason of conduct that constitutes physical abuse … or financial abuse.” The requirement of a felony conviction is substantial. California’s statute uses a broader definition of abuse that includes physical abuse, neglect, false imprisonment, or financial abuse of an elderly or dependent adult. See Cal. Prob. Code, § 259 (2012). There are many variations on the elder abuser and slayer combinations of statutory relief!
Other than Washington, California is the only state with slayer and abuser laws that do not require criminal conviction related to abuse of the decedent as a triggering event for application of the disinheritance abuse rules. This is more closely in keeping with the regime of the slayer statute, of civil relief that is afforded, like in Colorado’s statute, as a result of a criminal conviction or civil court’s determination that the elements of a qualifying crime have been met so as to bring the resulting death under the purview of the statute.
The California law is triggered if the would-be heir is convicted of abuse under the state’s penal code, or the abuse (in addition to such factors as whether the decedent was a vulnerable adult) is proved in a civil court by clear and convincing evidence. In Arizona, Illinois, Kentucky, Maryland, Michigan, and Oregon, criminal conviction related to the abuse of the decedent by the heir is required.
By way of illustration, the Michigan statute provides: A judgment of conviction establishing criminal accountability for the … abuse, neglect, or exploitation of the decedent conclusively establishes the convicted individual as the decedent’s killer or as a felon. See Mich. Comp. Laws Ann. § 700.2803 (2012). It also provides for an alternative civil determination that an individual is a slayer under the slayer and abuser Civil, not criminal) rules. This judgment is achieved when a preponderance of the evidence provided in civil court proves that the would-be heir feloniously and intentionally killed the decedent. The statute is devoid of any civil-standard alternative for persons accused of abusing the decedent. The Michigan statute specifically calls for a felony conviction related to abuse; presumably, then, a finding or plea for a misdemeanor-level crime would not trigger the disinheritance provision. The plain language of some of the other statutes as to the degree of criminal culpability is not as clear.
There Is a Wide Range of State Laws by Which Criminal Acts and Some Civil Actions Form the Basis for Disinheritance as Part of an Abuser/Slayer Law
Similar to Washington law, some states have drafted rebuttable-presumption clauses in their abuse disinheritance laws to negate the disqualification of an abuser from inheriting from a decedent. The California code negates the disqualification of an abuser if the alleged abuser proves that the vulnerable adult “was substantially able to manage his or her financial resources and to resist fraud or undue influence” subsequent to the alleged abuse. This presumes that the person making the will (testator), knew of the abuse and had the capacity to change the estate plan but nonetheless elected to allow the abuser to inherit.
As I noted in the first post, the roots of the modern slayer statute are ancient in origin. The slayer statute is part of a state’s civil law as it is not criminal in nature. Keep in mind that one of the major distinctions between criminal and civil law is the what is at stake for the defendant: the criminal penalty may involve imprisonment, fines, etc., as they are offenses against the state; while the civil matter involves money and sometimes specific actions. The burden of proof is also different. In criminal matters it is generally “beyond a reasonable doubt” while in civil matters it is typically a preponderance of the evidence (more likely than not) and sometimes by clear and convincing evidence.
Due to their remedial nature, slayer statutes have long been enmeshed with criminal law. Expanding slayer statutes to include disinheritance for different types of elder abuse similarly involves a careful look at how the range of criminal and civil laws relating to elder abuse will be effectively drawn into the disinheritance scheme of the slayer statute. Colorado has no such law at the present time, nor is one being considered in the legislature. If there is a PAD law that comes into effect – by either statute or ballot initiative – which contains no reporting requirements, then an abuser/slayer law might be a good idea.
© 2016 Barbara Cashman www.DenverElderLaw.org