Financial exploitation of older persons: challenges and opportunities to identify, prevent, and address it in the United States

Financial exploitation is a recognized social problem of unknown, though likely increasing, magnitude. It can occur through numerous methods, including the misuse of powers of attorney and guardianship, illegal transfers of property, and outright fraud and theft. Financial crimes against older persons are difficult to address because they often go unreported. This paper provides a summary of findings from a study of financial exploitation of older persons. We review what is known about the nature and scope of financial exploitation of older persons and describe barriers to addressing the problem. We also identify gaps in knowledge, discuss current methods for addressing financial exploitation, and provide recommendations and suggested policy approaches for prevention and remediation.     

从516份司法裁判文书看残疾人权益保障及其完善

通过梳理涉残疾人案件的司法裁判文书,可以发现残疾人通过司法诉讼寻求权益保护的整体概貌.面对残疾人包括健康权、生存权、公民权、政治权等权益诉求,涉及自然人、法人等多元侵权主体以及司法过程中支持性服务供给、经济成本耗费、裁判结果与预期等诸多问题,必须增强残疾人权利意识与维权能力,多角度、多渠道保护重点权利和规制侵权主体,构建立体的权利救济体系.     

Financial Exploitation of Older Persons

Abstract

Financial exploitation is a recognized social problem of unknown, though likely increasing, magnitude. It can occur through numerous methods, including the misuse of powers of attorney and guardianship, illegal transfers of property, and outright fraud and theft. Financial crimes against older persons are difficult to address because they often go unreported. This paper provides a summary of findings from a study of financial exploitation of older persons. We review what is known about the nature and scope of financial exploitation of older persons and describe barriers to addressing the problem. We also identify gaps in knowledge, discuss current methods for addressing financial exploitation, and provide recommendations and suggested policy approaches for prevention and remediation.     

Bounded Explorers: Online Constructions of Solo Women Travelers

Women have navigated the world with much less freedom than men—with restrictions particularly great for their solo, or independent, travel. Although much research documents women’s experiences of these constraints, less is known about travel media’s framing of women as solo travelers—with online media an especially neglected research area. Drawing on a leisure constraints perspective, our study examines differences in online travel articles (n = 100) targeting solo women versus men. Resonating with this perspective, as well as the findings of studies examining women’s actual travel experiences, our findings reveal a framing of women as “bounded explorers,” constrained in their solo travel by the emotional, social, and behavioral burdens imposed upon them, hinging on their perceived vulnerability and men’s perceived dangerousness. We find two processes through which women are constructed in online travel articles as bounded explorers—creating negative expectations and encouraging vigilant risk avoidance. As one of the first studies to examine cultural representations of solo travelers in online media, our research provides further evidence of gendered constraints in leisure by revealing the framing in travel articles of women as more bounded than men—a framing that may, in turn, have implications for women’s experiences in the realm of leisure and perhaps beyond.     

Protecting human participants in long-term care research: the role of state law and policy

There has been substantial recent activity addressed at the challenge of protecting the rights and welfare of vulnerable human participants in various kinds of research protocols, on one hand, without unduly impeding the conduct of research that promises findings that may substantially improve health and quality of life for many beneficiaries of research, on the other. Many of the emerging recommendations for improved participant protection are relevant to, and in some cases explicitly targeted at, vulnerable older persons, including long-term, chronically dependent nursing home and home health patients, who may be approached by investigators. Thus far, virtually all of the discussion and recommendations regarding research participant protection pertain to possible legal and policy changes at the federal level. Yet, both current federal law and emerging policy recommendations defer, either expressly or by default through their silence, on some very important matters about research participation, especially regarding informed consent, determinations of decisional capacity, and surrogate decision-making authority, to the laws of individual states. This article analyzes and interweaves recommendations regarding the role of state law and public policy in protecting older persons who are or may become participants in long-term care research projects.     

Webster and the Rights to Life

The Supreme Court's refusal to recognize the existence of a basic affirmative right to health care may entail that women must retain a legal right to expel legal fetuses, even if Roe v. Wade is reversed and states are permitted to give fetuses legal standing as persons. Further, recognition of a basic affirmative right to health care would not entail that a woman in obliged to carry her fetus, even if a failure to do so would result in fetus' death. Duties correlative to basic affirmative rights are distributed among the members of society, not solely vested in single individuals.     

Human Rights: What the United States Might Learn from the Rest of the World and,Yes, from American Sociology

The U.S. Constitution includes civil and political rights—as individual rights—but does not include what is internationally understood to be “human rights,” namely rights we enjoy as equals, including economic, social, and cultural rights, and protections for vulnerable persons, such as children, minorities, mothers, and refugees. The United States has not ratified any international (United Nations) or regional (Organization of American States) human rights treaty, is not a party to the Rome Statute that established the International Criminal Court, and is no longer a member of the United Nations Educational, Scientific, and Cultural Organization. It might be concluded that Americans do not know what human rights are. It is more complicated than that. While opinion polls show that Americans often endorse individual rights—e. g., the rights of women—they do not frame them as being interdependent or being within the purview of government. Can we conclude that human rights have no place in the United States? Not at all. This article concludes by showing that many U.S. institutions of higher learning have programs in human rights and that some academic associations, including the American Sociological Association, recognize human rights.     

“Empowered Criminals and Global Subjects”: Transnational Norms and Sexual Minorities in India

In this paper, I comparatively examine the influence of transnational advocacy on legal struggles around sex work and homosexuality in contemporary India. While transnational scholars of sexuality understand globalization as a contradictory and uneven process, there has been little attention to how this unevenness is manifest in the realm of sexual rights and law. Based on qualitative research, I show how transnational discourses on health—in particular, HIV/AIDS interventions—and on human rights interact unevenly with national discourses on sexuality. Whereas discourses regarding HIV/AIDS enable sex workers to mobilize at the national level, global anti-trafficking discourses effectively reduce sex workers to “victims.” For Indian LGBTQ groups, discourses regarding the HIV/AIDS epidemic and global human rights enable these groups to problematize the anti-sodomy law in national politics. However, national legal discourses effectively reduce LGBQ individuals to “criminals,” and legal advancements in this arena are uneven. Focusing on this unevenness produced by transnational advocacy this paper highlights how sexual rights are articulated in context of asymmetric and uneven globalizations.     

Albinism,spiritual and cultural practices,and implications for health,healthcare, and human rights: a scoping review

Persons with albinism – a disability found worldwide – are particularly at risk for human rights violations in Africa. The purpose of this scoping review was to establish the current state of knowledge on albinism, spiritual and cultural practices, and implications for health and health services. Electronic searches of nine databases were conducted. After screening, 40 articles were reviewed. Four themes emerged: health implications of albinism; health-related cultural and spiritual meanings attached to albinism; health-related experiences of persons with albinism; and human rights and albinism. The findings reveal that African ontologies, including witchcraft beliefs and practices, are implicated by their construction of the person with albinism as an ontologically different entity, although few studies explicated this relationship. How broader social structures influence persons with albinism disproportionately, resulting in health and social inequities, is another under-researched area. This scoping review lays the groundwork for intersectoral, interdisciplinary research.     

'I know I signed something': older people,families and social workers' understanding of the legal aspects of entry to residential care

This purpose of this paper is to report findings that older people are legally vulnerable when entering an aged care facility, that social workers lack knowledge of the legal aspects of this move and do not necessarily view this information as core to their practice. The structure of social work services mirror the disjuncture older people and their families experience at this time and this may, in part, explain social work's lack of attention to these issues. Although many social workers are in contact with older people, the profession in Australia has been slow to develop a knowledge base to support effective practice with this group.     

Taking older people's rights seriously: the role of international law

Older people face many difficult challenges that amount to a deplorable violation of their basic human rights (poverty, discrimination, denial of social services, etc.). However, the world has been slow to react. Factors that limit global responses to the challenges of aging include: limited political will, the prevalence of neo-liberalism, and NGOs' longstanding advocacy for other seemingly "more" disadvantaged groups. Such oppression of and discrimination against older people require a concerted world-wide response. We contend that the introduction of an international convention on the human rights of older people is most relevant. Reinforced by a potent international monitoring system, the convention should contain comprehensive and legally binding provisions that require participating states to promote older people's rights. It is argued that international law would be a powerful force in defending and protecting older persons, operating as a baseline for establishing underlying values for national aging policies and linking older persons' concerns with other segments of society.     

LEGITIMATING TRANSPHOBIA

Transgender persons are strangers to the law; or put more accurately, the legal imagination is so deeply entrenched in normative gender binarism as to effectively render transsexuals a ‘freakish’ anomaly to law. This essay attempts to offer a reflection on transgenderism, law and sexual crime from a human rights and criminal law perspective. It focuses on one of the most violent types of institution in society – the prison – and asks: what are the legal imagination and practice surrounding transgender prisoners as they are linked to social and cultural transphobia? What ‘human’ rights can be practiced for a dehumanized class? It first surveys the legal predicament of transgender prisoners in the US prison system in relation to Eighth Amendment rights provided by the US Constitution. The US situation has seen cases that have importantly shed light on other jurisdictions when engaging with the combined questions of prisoners’ rights and transgender rights together. The analysis is then taken to the context of Hong Kong prisons in a modest application. In contrast to some other Asian contexts (such as Taiwan, Thailand and Indonesia), critical cultural studies of transgenderism are non-existent in Hong Kong. Meanwhile, human rights studies of the same have only emerged through the work of legal scholar Robyn Emerton. It is hoped that a rights-based approach will emerge in Hong Kong for the protection of transgender inmates from sexual violence in local correctional facilities.     

Basic humanitarian principles applicable to non-nationals

This article examines the general status in international law of certain fundamental human rights to determine the minimum "no derogation" standards, and then surveys a number of formal agreements between stages governing migration matters, while examining some of the standard-setting work undertaken by the International Labor Organization (ILO) and other institutions. Article 13 of the Universal Declaration of Human Rights, proclaims the right of everyone to leave any country, including his or her own. The anti-discrimination provision is widely drawn and includes national or social origin, birth, or other status. Non-discrimination is frequently the core issue in migration matters; it offers the basis for a principles approach to questions involving non-nationals and their methodological analysis, as well as a standard for the progressive elaboration of institutions and practices. As a general rule, ILO conventions give particular importance to the principle of choice of methods by states for the implementation of standards, as well as to the principle of progressive implementation. Non-discrimination implies equality of opportunity in the work field, inremuneration, job opportunity, trade union rights and benefits, social security, taxation, medical treatment, and accommodation; basic legal guarantees are also matters of concern to migrant workers, including termination of employment, non-renewal of work permits, and expulsion. The generality of human rights is due not because the individual is or is not a member of a partucular group, and claims to such rights are not determinable according to membership, but according to the character of the right in question. The individualized aspect of fundamental human rights requires a case-by-case consideration of claims, and the recognition that to all persons now certain special duties are owed.     

Taking Older People's Rights Seriously: The Role of International Law

ABSTRACT

Older people face many difficult challenges that amount to a deplorable violation of their basic human rights (poverty, discrimination, denial of social services, etc.). However, the world has been slow to react. Factors that limit global responses to the challenges of aging include: limited political will, the prevalence of neo-liberalism, and NGOs' longstanding advocacy for other seemingly “more” disadvantaged groups. Such oppression of and discrimination against older people require a concerted world-wide response. We contend that the introduction of an international convention on the human rights of older people is most relevant. Reinforced by a potent international monitoring system, the convention should contain comprehensive and legally binding provisions that require participating states to promote older people's rights. It is argued that international law would be a powerful force in defending and protecting older persons, operating as a baseline for establishing underlying values for national aging policies and linking older persons' concerns with other segments of society.     

Autonomy in long‐term care: a need,a right or a luxury?

Doyal and Gough’s theory of human need highlighted that personal autonomy is a universal need and human right, essential for well‐being. In applying their theory to older disabled people in the UK the author suggests that their ‘minimally autonomous’ threshold would exclude some older people in long‐term care who still have a fundamental need for autonomy or, alternatively, extant autonomy. The disability movement has highlighted that independent living is fundamental to achieving self‐determination for disabled people and debate on equality and caregiving emphasises the autonomy of carers. However, there is a lack of recognition in both academic research and government policy of autonomy as a need and right of older disabled people. The author argues that autonomy is a human right of older people living in long‐term care settings, but that social rights are necessary to facilitate their autonomy.     

Rights Spaces: An Exploration of Feminist Approaches to Refugee Law

The exigent needs of refugee women necessitate feminist attempts to use legal mechanisms, however imperfect, to their benefit. However, the temptation to overestimate the importance of feminist gains in this realm must be avoided due to current constraints within the international refugee regime. Most forcibly displaced persons never reach the borders of western countries to claim asylum. Moreover, western 'refugee-receiving' countries are effectively closing their borders to migration claimed on strictly humanitarian grounds. Therefore, while feminists have successfully claimed a place for refugee women within protective rights mechanisms, they have been granted only a small portion of what is already extremely finite territory. Given this troubling state of affairs, I suggest that although proven avenues within refugee law must not be abandoned, the time is right for the sustained exploration of new and creative modes of engagement within refugee rights discourse. In this vein, the second half of the paper draws extensively upon the work of feminist legal theorist Jennifer Nedelsky to suggestively consider some possible alternatives for feminist theory and praxis.     

中国残疾人事业法治建设三十年之回眸与前瞻

《残疾人保障法》实施30年来,中国残疾人事业法治体系和权利保障机制不断发展完善,促成了残疾人平等享有全面小康生活,也为世界人权话语丰富了“人类命运共同体”内涵,拓展了基于人权的发展路径。在全面建设社会主义现代化新时期,要进一步完善残疾人权利保障的法治体系,需要坚持融合发展原则,注重社会治理和社群赋能策略,在法律能力、无障碍、教育就业和司法保护等领域进行制度革新。     

Letter From the Editors

ABSTRACT

In this article we explore older persons’ definitions of and explanations for elder abuse in the Netherlands by means of interviews with older persons. A qualitative study was conducted based on semistructured interviews with 35 older persons who had no experience with abuse. Our findings show that older persons participating in our study define elder abuse foremost as physical violence that is performed intentionally. The study participants explain elder abuse as a result of the dependency and vulnerability of older persons, of changing norms and values, and of changes in the position of older persons in society, which result in disrespect toward older persons and a lack of social control and responsibility. The older persons’ explanations for the occurrence of abuse mainly focus on societal changes; older persons seem to regard elder abuse primarily as a societal problem. This understanding of, and explanation for, elder abuse may influence their detection and reporting behavior, as they may tend to acknowledge only severe cases of intentional physical violence that leave clear and therefore physically detectable evidence.     

Who is responsible for this? Assigning rights and consequences in elder care

In the context of providing health and human services for older individuals, modern American culture often depends on formally asserting and battling over a clashing array of rights among respective combatants as a first resort at problem-solving. A substantial impediment exists in our cultural environment that discourages families and professionals, and the agencies that employ them, from recognizing and respecting the rights of older persons in a less adversarial and more subtle, sensitive, and flexible manner. This article discusses this barrier, illustrating it in several aging-related settings, and suggests a paradigm for addressing the situation. Then, several current challenges to the rethinking of rights and responsibilities in geriatric and gerontological practice are acknowledged.