Litigation Claims Developments: Elder Abuse

By Erich M. Paetsch

In 2013, an estimated 15 percent of Oregonians were 65 or older. By 2030, it is estimated that more than 20 percent of Oregonians will be 65 or older. Given the growing population of Oregonians 65 years or older, greater legislative and judicial attention has been placed on the needs of the growing population of elderly Oregonians. As a result, existing legislation has been revised and new legislation has been implemented in January of 2015 to protect Oregon’s elder citizens.

There is no doubt that preventing abuse, safeguarding and enhancing the welfare of elderly Oregonians is an important legislative goal. ORS 124.055. Creating, for example, the ability to pursue civil claims for the abuse of an elderly Oregonian and permitting access to the courts to petition for relief are crucial measures critical in preventing physical and financial harm to elderly Oregonians. See ORS 124.005-124.040 and 124.100-124.140 (2015). However, in addition to important legitimate claims asserted under these statutes, elder abuse claims are now often added on in a wide variety of civil litigation matters for what appear to be tactical reasons.

Because of the broad nature of the protections and types of claims available for elder abuse under Oregon law, it is increasingly common to see these claims asserted in civil cases involving anyone 65 years of age or older. These claims are being asserted for several reasons. First, the civil action claims permit the recovery of up to three times the damages allegedly suffered, in addition to reasonable attorney fees. The Oregon Court of Appeals confirmed this intended legislative outcome recently. Herring v. American Medical Response Northwest, 255 Or App 315, 297 P3d 9 (2013). Second, the extensive nature of the statutory protections covers a broad array of potential issues, leaving open to interpretation whether a given set of facts constitutes abuse. For example, financial abuse of an elder includes the wrongful taking or appropriation of money or property. ORS 124.110. If an elderly person decides to deed property to one sibling over another, a subsequent conservator or sibling may elect to challenge that decision. Alternatively, as part of a business sale transaction, a prospective buyer and his accountant “pressure” an elderly seller to agree to a certain sale structure or price that is to the seller’s detriment. As tactical claims in litigation, elder abuse claims can create tremendous pressure to resolve such claims quickly and on an expensive basis because of the potential damages and right to attorney fees among other considerations.

The litigation team at Saalfeld Griggs PC has seen a number of creative arguments asserting elder abuse claims. We have also had the privilege of asserting claims on behalf of elderly clients who were physically or financially abused. Given the growing population of elderly Oregonians, these types of claims (both legitimate and tactical) will increase under current law. Ensuring that counsel is involved in all aspects of a transaction involving an elderly Oregonian can help avert such claims. For example, a carefully tailored estate plan or business transaction can avert future problems. In addition, in the event of a dispute, prompt and immediate attention to the possibility of such a claim by attorneys familiar with elder abuse claims is crucial to help eliminate any practical and tactical considerations such claims can create in the event of litigation.