Years ago the California Legislature recognized as a serious public concern “that elders and dependent adults may be subjected to abuse, neglect, or abandonment,” and it enacted both criminal and civil statutes to address the problem. In adopting the civil statutes, the Legislature stated that one purpose was “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.”
Under California’s statutes, an “elder” is any person residing in California who is at least 65 years old, and a “dependent adult” is anyone residing in California who is less than 65 years old “who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.” As of July 1, 2016, abuse of an elder or dependent adult can be any of “Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” or “Financial abuse.” Financial abuse includes taking or keeping (or assisting in taking or keeping) real or personal property for a wrongful use, or with intent to defraud, or by undue influence. Taking or keeping property includes the circumstance where the alleged abuser receives property through the elder’s or dependent adult’s estate plan or other agreement. California presumes that property is taken or kept for a wrongful use when the alleged abuser knew, or should have known, that his or her conduct “is likely to be harmful to the elder or dependent adult.”
California law provides avenues both to stop any abuse and to award damages. When an elder or dependent adult has been abused, either that person or an authorized representative can seek protective orders to halt such abuse and to keep the abuser away from the victim. The statutes also allow a court to include any pets of the victim within the protective orders.
As for damages, victims of elder abuse generally may themselves bring actions for damages. If the victim has a representative, such as a conservator, guardian, or agent acting under a power of attorney, that representative also could bring a claim on behalf of the victim. The trustee of a trust that holds the property of a victim can probably also bring litigation for the benefit of the trust/victim, at least with regard to financial abuse. If the victim dies, a claim for relief may survive if timely brought (or continued). Such a claim may be pursued by the decedent’s personal representative or, in certain circumstances, by a member of the decedent’s family (with the applicable court having the power to decide who among the authorized representatives will be given the right to pursue a claim).
California’s elder abuse law provides for enhanced remedies. Where there is proof of financial abuse, for example, the party who brought the claim may recover reasonable attorney’s fees and costs (which otherwise usually are not available in disputes in probate court). As for the other enhanced remedies, they generally are available only where there is strong proof of egregious conduct. As one example, if the elder abuse victim has died, California’s statutes generally prohibit the recovery of damages for the victim’s pain and suffering. But where there is financial abuse and clear and convincing evidence that the abuser acted with recklessness, oppression, fraud, or malice, the statutory restriction on pain and suffering damages is lifted. As another example, when there is clear and convincing evidence of physical abuse and that the abuser is guilty of recklessness, oppression, fraud, or malice, the person bringing the claim is entitled to recover reasonable attorney’s fees and costs, and the statutory restriction on pain and suffering damages also is lifted (although such damages may not exceed $250,000). An abuser who acts with recklessness, oppression, fraud, or malice in engaging in either financial or physical abuse also can be liable for punitive damages. Where the abuser also is found to have acted in bad faith in committing financial abuse, he or she also may be liable under California’s statutes for twice the value of property taken.
A number of public entitles have published information addressing elder abuse issues. For example, the State Bar of California has published “WHAT SHOULD I KNOW ABOUT ELDER ABUSE?”, which can be found at:
The San Diego County District Attorney discusses a number of elder abuse issues, beginning with “Warning Signs of Elder Abuse,” at:
The Office of the California Attorney General has a pamphlet entitled, “A Citizen’s Guide to Preventing & Reporting Elder Abuse,” which can be found at:
(Law Offices of James A. Bush, P.C. does not endorse, and is not endorsed by, any of these agencies or any of these publications. The above links are presented for informational purposes only.)
If you believe someone has committed elder abuse against someone in whom you are interested, or if you have been accused in a civil or probate matter of elder abuse, please contact Jim Bush for a no-charge discussion of the matter.
*The law in this area frequently evolves. This discussion is meant only to set out current general principles, which are subject to exceptions as well as to change by statute and by case law. You should not rely on this discussion in addressing your legal obligations and rights or your legal questions but should instead consult an attorney.