Academic journal article Generations

The Changing Role of the Courts in Elder-Abuse Cases

Academic journal article Generations

The Changing Role of the Courts in Elder-Abuse Cases

Article excerpt

The growth in case law related to elder abuse reflects a significant shift.

Our client, an older man, deeded his house to his late wife's caregiver in return for her promise to care for him until his death. Within two weeks of the transaction, the caregiver threw him out of the house. On my first day as a legal services lawyer, I was assigned to find case law that would support our clients claim for the return of his house. Being naive and inexperienced, I thought, no problem; this must happen all the time in Florida with all the old people who live here, and there must be lots of case law But there was a problem. While this sort of thing did happen all too often in Florida (and elsewhere), there was almost no case law After many hours (this was before the advent of computer-assisted legal research), I did find one case holding that in a situation such as our client had experienced, the caregiver would be presumed to have acted fraudulently The caregiver did not overcome that presumption, and our client regained the title to his home.

Almost eighteen years later, the body of case law on elder abuse is beginning to grow During those intervening years, however, the incidence and awareness of elder abuse has risen significandy (National Center on Elder Abuse, r999). This article will discuss the reasons there still is not much case law, why that situation is finally changing, and what those changes might mean.

Before reading further, readers might benefit from a brief review of the components of the judicial system and their functions: Generally, state courts and court cases are classified as civil or criminal. The civil courts handle matters that are not criminal-in other words, matters such as contract disputes, claims for damages resulting from negligence, restraining orders or injunctions, divorce or separation. Within the broad range of civil jurisdiction are specialized courts. For example, probate courts have jurisdiction over cases involving wills and estate administration and often address matters of guardianship, conservatorship, and mental health commitments as well. Family courts are a relatively new type of specialized court; their jurisdiction encompasses family matters that include divorce, separation, custody, child support and visitation, adoption, juvenile delinquency, and child abuse and spouse abuse. Such courts may hear some related criminal cases as well (Wood and Stiegel,1996). Criminal courts handle cases in which individuals are prosecuted by the state for an alleged violation of law Federal courts, which are also beginning to hear more elder-abuse cases, handle both criminal and civil matters.


Gase law is the term for judicial opinions that are reported in court annals and serve as precedent for decisions in future cases. While every case filed in court eventually has a decision of some sort-made by a judge, a jury, or a settlement reached by the parties-not all cases result in judicial opinions and not all judicial opinions are recorded for posterity in case-law reporters. Factors influencing a decision to report a court decision may include the type of case, the importance of a case, and the type and level of court in which the case was heard. Decisions rendered by state trial judges are often not reported. Trial court decisions that are appealed to a higher court and result in opinions issued by appellate court judges are usually reported. In other words, most cases that are brought to the courts are not reported and do not become part of a body of case law. For example, in the case discussed above, the judge simply issued an order voiding the deed that our client had given to the caregiver and returned ownership of the house to him. The case was not reported in court annals and thus did not become part of case law.

Another relevant factor is that many of the decisions rendered by the courts are not categorized as elder-abuse decisions by the judicial system itself or by the companies that publish court opinions. …

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