Elder Abuse

The statute – Welfare & Institutions Code §15657.5 Creates a private cause of action for Elder and Dependent Adult Abuse.

Who Is an Elder?

In California “elders” are defined as persons sixty-five (65) years and older.

Who is a Dependent Adult?

Dependent adults are persons residing in California, between the ages of 18 and 64 years, who have physical or mental limitations that restrict their ability to carry out normal activities or to protect their rights.  It includes, but is not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age.

A person is a dependent adult if he is within the stated age range and suffers from “chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease” provided the mental or psychological problem creates a “limitation” upon a major life activity.[1]

At least one court has limited the interpretation of dependent adults “only to persons whose disabilities and needs are comparable to persons who are compelled to live in nursing homes and other health care facilities.”[2]

Under California law elder abuse can be both criminal and civil.

Criminal Elder Abuse – California Penal Code §368

Criminal elder abuse occurs where any person who violates any provision of law proscribing theft, embezzlement, forgery, or fraud of an elder and who knows or reasonably should know that the victim is an elder.

Criminal elder abuse is punishable by a fine of two thousand five hundred dollars ($2,500) and imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the money, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when money, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

Civil Elder Abuse – Welfare & Institutions Code §15610.30

Advocate Legal litigates against individuals and institutions that commit Civil Elder Financial Abuse including theft of real property.

What is Civil Elder Financial Abuse?

Civil Elder Financial abuse is when a person or entity does any of the following:

1. Takes, secretes, appropriates, obtains, or retains real or personal property of an elder for wrongful use or with intent to defraud, or both.
2. Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for wrongful use or with intent to defraud, or both.
3. Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder by undue influence. Undue influence means excessive persuasion that result in inequity.

Civil Cause of Action – Welfare & Institutions Code §15657.5

1. A private cause of action for Elder and Dependent Adult Abuse is maintained under W&I Code §15657.5
2. The legal standard is “preponderance of the evidence” meaning that if your attorney can prove by a preponderance of the evidence that a defendant is liable for financial abuse as defined above (§15610.30) then the elder or their beneficiary may recover damages.

Recovery of Damages

Writ of Attachment – Welfare & Institutions Code §15657.01

A charge of Civil Elder Financial Abuse allows an attorney to freeze the assets of the Wrongdoer by Writ of Attachment under certain conditions

Importantly, this includes not only compensatory damages but also attorney’s fees and costs, as well as punitive damages.

Three Requirements before an attorney may obtain a Writ of Attachment:

1. The action must include a count for financial elder abuse;
2. There must be a readily ascertainable amount in dispute; and
3. The party suing must be able to demonstrate that it is more likely than not that they will prevail on the claim of financial elder abuse.

What If the Elder Dies After the Abuse?

An elder’s estate is entitled to double recovery if … – Probate Code §859

A person has taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust and that person has acted in bad faith or used undue influence and has committed Elder Financial Abuse as defined in Welfare and Institutions Code §15610.30.

At the court’s discretion this may include reasonable attorney’s fees and costs.

Who Has Standing to Bring a Lawsuit for Abuse of an Elder or Dependent Adult?

A “real party in interest” – California Code of Civil Procedure §367.

In the case of an Elder or Dependent Adult, this can also be a legal guardian, trustee of a trust, or party with a power of attorney that will sue on their behalf.

If an Elder dies after Financial Elder Abuse- Welfare & Institutions Code Section 15657.3(d).

After the elder’s death, the right to bring a lawsuit for Civil Financial Elder Abuse on their behalf transfers to their personal representative or, if there is none, to the persons entitled to succeed to their estate.

If the personal representative is the abuser… Estate of Lowrie, 118 Cal. App. 4th  220 (2004).

If it is the personal representative that committed the abuse or used undue influence over the elder to have themselves appointed as personal representative, other family members will also have the standing to sue for elder abuse.

Indicators of Civil Elder Financial Abuse:

1. Inappropriate banking activity such as unusually large withdrawals or withdrawals from automated banking machines especially when an elder can’t get to the bank.
2. Signatures on checks that do not resemble the elder’s signature
3. Legal documents signed when the elder is physically incapable of writing
4. Checks are written out to “cash” being negotiated by caretakers
5. Checks signed by the senior but filled out by someone else
6. A surge of activity in accounts which have been static for years
7. Expensive gifts made by the elder
8. Checks or credit card transactions made out to direct mail or telemarketing promotions
9. Contributions going to newly formed religious or non-profit causes
10. Investments in timeshares, real property, annuities or financial products
11. Refinancing of real property with cash going to the elder or another party.
12. Large loans against equity in real property to finance “investments.”

Legal Document Indicators

1. Power of attorney given by the elder when the elder lacks mental capacity
2. A will being made when the elder is not mentally competent
3. Elder taking his or her name off of property titles
4. The elder adding the name of a caretaker onto real property or money accounts in exchange for commitments of continued care, and or affection

At Advocate Legal we work closely with the local district attorney to make sure criminal charges are filed concurrently.  A well-presented civil complaint about elder abuse may result in a criminal charge also being filed.

Statute of Limitations – Welfare & Institutions Code §15657.7

It is important to act quickly in elder abuse cases, not just because of an elder’s waning health and memory, but also because of the four (4) year statute of limitations in elder and dependent adult financial abuse cases.

[1] California Government Code §1296.1

[2] Jay v. Kubly, 2008 WL 77572, at *5 (Cal. Ct. App. 2008) (unpublished)