Professional practice in the field of elder abuse prevention is guided by principles that highlight clients’ freedom and civil liberties. In working with victims and vulnerable persons, professionals look for ways to prevent abuse that promote autonomy and self-determination. (National Committee for the Prevention of Elder Abuse).These principles of autonomy and prevention of financial elder abuse are often in direct conflict. This conflict is amplified in the case of a planned or impending marriage when the prevention of loss from a “sweetheart scam” or other financial abuse of the elder interferes with the elder’s fundamental right to marry.
The “sweetheart scam” is an old and profitable con. It works by the preying on a lonely, isolated elder. The perfect target is someone who lost a spouse and has little or no local support network, but any lonely person will do. Many times there is no intent to marry, but only intent to lead the victim along with promises or inferences of marriage until the assets are transferred from the victim to the perpetrator. Many of these cons are run by well organized criminal organizations. Usually more than one person is involved in setting up and “persuading” the victim to transfer their assets for love of the con artist.
The first task is for the con to inventory the assets of the victim so the take can be identified. Once this is done, the plan of asset transfer through soon to be forgiven loans for emergencies and extravagant gifts is set in motion. If the victim raises objection, they are reminded of their loneliness; they are reminded that the con artist is the only one who truly loves and cares for them. Lastly the con artist provides the “proof’ of the love by raising the topic of marriage. This con can be stopped through family/friend intervention and court action including orders preventing the marriage.
Confronting or ignoring the con presents difficult issues often resulting in conflict and strife. Family members risk losing the relationship of a loved one if the problem of a “sweetheart” relationship is confronted. The happiness of the elder if the con is not confronted often creates “unhappiness” in the beloved family member. The happiness derived from the relationship is often real to the elder and a cure to loneliness. The lasting effects of a damaged relationship or unaddressed wrong of elder abuse are oft overlooked consequences to the survivor(s). These issues should be considered by the practitioner as part of the advice to be given to the client family member. The philosophical question is whether we should have a policy or practice which interferes with the relationship choices of the elder.
Financial elder abuse is now becoming recognized by law enforcement as a crime to be prosecuted. Civil and elder law attorneys alike are pushing the criminals to seek refuge under the protections of marriage. The “sweetheart” con and even marriage as a defense to a claim of elder abuse is real. I have seen nearly a dozen cases in the last 2 years involving a family member concerned with the new sweetheart and impending marriage. One such case involved a new sweetheart who was making plans to take the elder to an out of state wedding chapel to marry. The sweetheart was 40 years younger than the elder. My client initiated a conservatorship proceeding, a restraining Order was granted by the court and the marriage stopped. The case resolved since the conservatee lacked the legal capacity to consent to the marriage. The perpetrator quickly disappeared. The difficult question is whether the law should stop the marriage if legal capacity is present, but diminished, and undue influence is present.
The simplistic legal answer is that if undue influence is proven, consent is not valid and the marriage can be prevented or declared void. Since marriage is often a quest to “persuade” another to join one in marriage, is use of undue influence claims to stop or attempt to void marriage a desirable policy? On the other hand is it good policy to allow marriage or promises of marriage to be used to commit financial elder abuse. The dilemma is how to protect elders when to do so may impinge upon the fundamental right to marry.
The right to marry is a fundamental constitutionally protected right. The Constitutional test is when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests Zablocki v. Redhail, 434 US 374
Elders have been declared to be a disadvantaged class, deemed “vulnerable” and in need of “state protection.” (See for example CA Welfare & Institutions Code 15600). In many states, the legislatures have passed elder abuse statutes recognizing that elders and dependent adults may be subjected to abuse, neglect, or abandonment. The abuse of an elder includes financial abuse in the form of uncharacteristic gifts from the elder, loans which are never repaid, and old fashioned theft. Some state statutes provide for enhanced legal remedies and recovery of attorney fees and costs.
Capacity to consent or not provides the answer in the easy case. Freedom of consent is the more difficult issue to resolve. Undue influence often is used by perpetrators to fleece their victim when legal capacity is present, but the capacity is significantly diminished. This leads us to the difficult case. The legal answer at first blush appears to be that if undue influence, as opposed to “courtship persuasion” is proven, the marriage is invalid. Is it really that simple when a fundamental right, family relationships and conflicts in policy is involved? A marriage is a contract under the law, but historically represents much more. For instance the U.S. Report Under the International Covenant on
Civil and Political Rights July 1994, Article 23 states in part:
“While we may speak of marriage as a civil contract, yet that is a narrow view of it. The consensus of opinion in civilized nations is that marriage is something more than a dry contract. It is a contract different from all others. For instance: Only a court can dissolve it. It may not be rescinded at will like other contracts. Only one such can exist at a time. It may not exist between near blood kin. It legitimizes children. It touches the laws of inheritance. It affects title to real estate…. ”
The issue now tendered for a more detailed discussion of positions in the next Newsletter is whether interference with the fundamental right to marry is justified as part of a policy of elder abuse protection. Look for a “Point Counterpoint” in upcoming newsletters.
 Since the con works by making one believe the marriage is impending to acquire the gifts, it is unknown whether the promise to marry was real. It is clear the target believed impending marriage was a reality. The family member did not want to take chances and try to undo the marriage and chase the assets they believed would be quickly transferred to the perpetrator with or without marriage.