Preventing Identity Theft and Other Financial Abuses Perpetrated Against Vulnerable Members of Society: Keeping the Horse in the Barn Rather than Litigating over the Cause and/or Consequences of His Leaving
This article examines a troubling issue: the execution of important documents by individuals who are vulnerable, because of age, hospitalization, or other impairment, to financial abuse. Oftentimes, such individuals execute wills that are subsequently challenged on the grounds of lack of capacity or undue influence or execute writings which enable financial predators to prey on the individuals. Such predatory schemes often result in injury to the vulnerable individuals which might then be remediated by criminal or civil statute.
The purpose of this article is to propose a procedure by which much suffering and litigation could be prevented. If such a vulnerable individual would be required to submit to an evaluative procedure--to determine capacity and freedom from duress--at a time before the writing was executed, and only be permitted to sign the document if his capacity and so forth were established, the writing would be less likely to be challenged at a time when the individual is no longer available to be examined. Moreover, such a writing could then be given a presumption of validity which would further reduce the likelihood of suit. Finally, such a procedure would reduce the possibility of the individual being bilked in a financial scam because of the public nature of the procedure.
Irene D. Johnson, Preventing Identity Theft and Other Financial Abuses Perpetrated Against Vulnerable Members of Society: Keeping the Horse in the Barn Rather than Litigating over the Cause and/or Consequences of His Leaving, 79 UMKC L. Rev. 99 (2010), http://digitalcommons.pace.edu/lawfaculty/648/.