A couple weeks back, I posted an update on the proposed End of Life Options Act, a bill in the Colorado legislature which has since died (presumably of natural causes). There is concern that some version of the bill will make it onto a ballot to become law by other means. For this reason, today’s post will go into a bit more detail about the concerns I raised about the implications of having no reporting requirements for such a law and concerns I have with regard to the safety of some vulnerable elders.
Colorado’s mandatory elder abuse reporting statute defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.” Colo. Rev. Stat. §18-6.5.102(2). The only reputable (US Census based) internet fact I ran across about this population was for persons 65 and up, who in July 2014, were estimated to be 12.7% of the population of Colorado.
From a civil rights perspective, aspects of elder abuse prevention statutes can often seem paternalistic. Much of the research that could be done on the subject is problematic because of ethical and methodological problems. Collecting information about elder abuse may publicly expose cognitive, physical, mental and social vulnerabilities and the collection of such information could have negative implications in the form of legal, financial or social consequences for both the elders and caregivers and others who might participate as part of a study. I mention this because the vast majority of elder adults are competent and retain capacity, at least in the eyes of the law. The implication of these observations is that we really don’t have solid numbers about how many perpetrators and victims we are talking about. As an elder law attorney, I can say that it is extremely difficult for an elder parent to call me (or adult protective services) to report abuse or exploitation being perpetrated by an adult child or family member of the elder. Suffice it to say we don’t really know, and may never have a very firm handle on how many elders are affected as victims of exploitation and abuse.
When you couple this with the lack of any reporting requirement for a physician assisted death law, it would not be possible to track the numbers of vulnerable elders who might fall prey to an abuser’s or exploiter’s plan to hasten someone’s demise so that they might inherit something from the elder. Enter the slayer statute. Here’s an article about “disincentivizing” elder abuse. Keep in mind that elder abuse statutes have criminal penalties. There are of course distinguished from civil remedies, which can provide other types of relief.
The Slayer Statute – A Modern Law with Ancient Origins
If you’ve never heard of a slayer statute, you’re not alone! It’s both obscure and ancient. Before there were any state “slayer statutes” there was the common law slayer rule. Its origin hearkens back to the first known remedial law code in human history: the Code of Hammurabi. The Code of the Babylonian king was inscribed on a stone pillar (called a stele) and installed in a public place. It was a combination of legal principles and history. Most of us are familiar with the axiom “an eye for an eye and a tooth for a tooth” as some precept of retributive law in the form of revenge as recompense for personal harm, but it is much more likely the expression has been badly misinterpreted and taken out of context. It is probably much more closely aligned with other commentary in the code which describes the value of certain personal injuries in terms of repayment. In short, it was a code of remedial law – akin to modern day worker’s compensation and tort law.
The principle from Hammurabi’s code is that “a killer cannot profit from his wrong.” The common law rule, nullus commondum capere potest de injuria sua propria (no one can take advantage of his wrongdoing) forms the basis of the historical slayer rules and subsequent statutes, preventing slayers from inheriting from their victims.
Probably the most well-known case (from law school) to articulate a slayer rule is Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case a grandfather had executed a will leaving small portions of his property to his children and the remainder to his grandson. The grandfather subsequently married and stated that he intended to change his will to include his wife. The unhappy grandson caused his grandfather’s death in an attempt to secure his portion of the estate. The court held that grandson was disqualified from inheriting because of his action and relied on the grounds of moral equity to articulate a slayer rule in American jurisprudence.
Forty-seven states have slayer statutes. Colorado is a Uniform Probate Code state, among many other states which have adopted that version of the slayer statutes. Colorado’s is codified at C.R.S §15-11-803 and contains both a criminal and civil provision for determining that a felonious killing has occurred such that a slayer/felonious killer is prevented from inheriting from the person whom they slew.
This post will be continued next week. . .
© 2016 Barbara Cashman www.DenverElderLaw.org