Law Commons^™

The Age Of Fraud, James Toomey

Elisabeth Haub School of Law Faculty Publications

We think of scams primarily as a problem for older adults. Indeed, in the past few years, states and the federal government have undertaken a range of legal actions designed to prevent seniors, as a distinct class, from scams-- from more harshly punishing perpetrators of scams directed towards older adults to authorizing financial institutions to closely monitor and rapidly freeze the accounts of their older clients. But this successful, popular, and bipartisan law reform movement has taken place without a thorough empirical understanding of whether, in fact, seniors fall victim to scams more frequently than other age groups.

This study …

Narrative Capacity, James Toomey

Elisabeth Haub School of Law Faculty Publications

The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in …

Wills Formalities In Post-Pandemic World: A Research Agenda, Bridget J. Crawford, Kelly Purser, Tina Cockburn

Elisabeth Haub School of Law Faculty Publications

The COVID-19 global pandemic has brought new focus to human mortality. The virus has reminded many people that they need to have a valid will or otherwise make plans for the effective transmission of their property on death. Yet stay-at-home orders and social distancing recommendations make it difficult or impossible to comply with the traditional rules for validly executing wills. Across most common law jurisdictions, the traditional requirements call for two witnesses in the physical presence of the testator. Because of the practical difficulties of safely executing documents during the pandemic with witnesses assembled in physical proximity, many jurisdictions internationally …

How To End Our Stories: A Study Of The Perspectives Of Seniors On Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

Because dementia can cause individuals to make decisions that they otherwise would not, the law needs a mechanism to determine which decisions are entitled to the respect of the legal system and which may be overridden by others. In the philosophical literature, three primary theories for how to make this determination have been offered. First, "Cognitivism" posits that whether a decision should be recognized is a function of the mechanical functioning of the individual's brain at the time the decision is made. Second, "Essentialism" holds that decisions should be recognized so long as they are consistent with the cluster of …

"As Long As I'M Me": From Personhood To Personal Identity In Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

As people, especially older people, begin to develop dementia, we confront ethical questions about when and how to intervene in their increasingly compromised decision-making. The prevailing approach in philosophically-inclined bioethics to tackling this challenge has been to develop theories of “decision-making capacity” based on the same characteristics that entitle the decisions of moral persons to respect in general. This Article argues that this way of thinking about the problem has missed the point. Because the disposition of property is an identity-dependent right, what matters in dementia and decision-making is an individual’s personal identity with their prior self, not their moral …

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, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

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 …