The statute – Welfare & Institutions Code §15657.5 Creates a private cause of action for Elder and Dependent Adult Abuse.
In California “elders” are defined as persons sixty-five (65) years and older.
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 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).
Advocate Legal litigates against individuals and institutions that commit Civil Elder Financial Abuse including theft of real property.
Civil Elder Financial abuse is when a person or entity does any of the following:
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:
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.
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.
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.
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)