Cruze: Elder Case

Oregon’s Court of Appeals recently made a step towards clarifying Oregon’s statute prohibiting financial abuse of “vulnerable persons” (which includes persons age 65 and older) under ORS 124.110. However, the broad contours of the elder abuse laws in ORS Chapter 124 remain far from certain.

In Cruze v. Hudler, 246 Or App 649 (November 23, 2011), the court addressed various fraud claims alleged against Markley in an investment scheme. While not discussed in depth by the court, one of these claims was for financial abuse of an elderly person under ORS 124.110(1)(a) where an action may be brought under for financial abuse in the following circumstances:

When a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person.

Cruze, 246 Or App at 649. The court referred to another Oregon case, Church v. Woods, 190 Or App 112 (2003), and paraphrased it to mean that “conduct is ‘wrongful’ under ORS 124.110 if it is carried out by improper means, including deceit and misrepresentation.” Id.

This phrase “wrongfully takes or appropriates” is a slippery one. In Cruze, the alleged abuse was wrongful taking through fraudulent misrepresentation – a tort claim that requires showing, among other things, that the party subjectively intended to deceive the victim.These cases suggest that, at least for the purposes of ORS 124.110(1)(a), a person who mistakenly but incorrectly takes money or property from an elderly person in an otherwise lawful context should not create elder abuse liability.  But as with many legal issues, guarantees are tough to come by.   

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