ELDER ABUSE LITIGATION
Every family has serious and legitimate concerns about the health, protection, rights, and privileges of elderly family members. Declining health or diminished capacity can, if not carefully planned for, result in a loss of freedom and personal autonomy. As a result, elders are among the most vulnerable members of our community and are particularly susceptible to abuse. If you are concerned that an elderly person is being harmed or mistreated, do not hesitate to contact us for review of the situation.
Statistically, California has the largest elderly population in the United States. Due to this fact, the California legislature has encouraged attorneys to be advocates for the elderly and to protect those who are vulnerable against manipulation, fraud, and exploitation. This means that it is sometimes necessary to protect the elderly by litigating against nursing homes; residential care facilities; unscrupulous businesses; fiduciaries; and other defendants, caregivers, or even family members.
At The Law Offices of Stephen E. Penner, we have regularly served as advocates for the rights and the protection of the elderly. We are prepared to utilize a range of options and remedies, from filing an Elder Abuse Restraining Order to filing a civil lawsuit for elder abuse causes of action. Another part of this advocacy means keeping up-to-date with recent law. Our office does this by regular legal research and education in multiple areas, including the following: the status of 2016 regulations prohibiting pre-dispute arbitration agreements with nursing homes, recent developments regarding the targeting of elders for identity theft, various kinds of financial fraud by fiduciaries, predatory lending, and telemarketing fraud.
ELDER ABUSE GENERALLY
Elder abuse occurs when an elderly person is (1) mistreated physically or psychologically, (2) exploited financially, or (3) neglected. Additionally, the law on elder abuse includes remedies for “abduction” and for “protective orders” against threatened invasions of the elder’s heightened interest in peace and safety (Welfare & Institutes Code Sections 15610 and 15657.03).
“Physical abuse” includes a lengthy list of criminal conduct, the deprivation of food or water for extended periods, and the misuse of psychotropic medication (Welfare & Institutions Code Section 15610.63). “Neglect” includes the failure to comply with duty to act reasonably, or the denial of care (Welfare & Institutions Code section 15610.57). “Financial abuse” constitutes transactions affecting an elder’s real or personal property interests in a way that the defendant knows or should know would be harmful to the elder (Welfare & Institutions Code section 15610.30).
PROTECTING ELDERS AGAINST FINANCIAL ABUSE
Two things are important to remember when thinking about elder financial abuse. First, financial abuse is the most common form of elder abuse in California. Second, the existence of a fiduciary or confidential relationship is often the most important underlying factor in most financial abuse cases. If a fiduciary relationship exists, there are a list of fiduciary duties owed to the principal in need of assistance. Fulfillment of these fiduciary duties is required by law, and almost every elder abuse case involves the violation of one or more of such duties.
Financial abuse occurs when a person or entity takes real or personal property for a wrongful use or with intent to defraud, assists in doing so, or obtains such property through undue influence (Welfare & Institutions Code section 15610.70). A conclusive presumption of financial abuse is presumed when the person taking or obtaining the property knew or should have known that this conduct would likely be harmful to the elder or dependent adult (Welfare & Institutions Code section 15610.30(b)).
Litigation involving elder financial abuse can occur under the California Probate Code (involving actions against personal representatives, conservators, inheritance, and trusts) or under civil actions which may include restraining orders and/or civil complaints.
ANALYZING FIDUCIARY RELATIONSHIPS
Establishing a fiduciary or confidential relationship as a basis for a fiduciary duty owed to the elderly plaintiff yields important advantages to the victim of elder abuse in tort and contract actions.
Some relationships are simply deemed fiduciary relationships as a matter of law. This includes principals and agents, husbands and wives, partners or joint venturers, attorneys and clients, trustees and beneficiaries, and health care providers and patients. Many other fiduciary relationships are created by estate planning documents, powers of attorney, and healthcare directives. The key factor in the existence of a confidential relationship lies in control by a person over the property of another (Vai v. Bank of America National Trust & Savings Ass’n (1961) 56 Cal.2d 329, 337-338).
The essential elements of a fiduciary relationship are: (1) the vulnerability of one party in regard to the other, which (2) results in the empowerment of the stronger party by the weaker, which (3) empowerment has been solicited by the stronger party and (4) prevents the weaker party from effectively protecting itself (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1161).
REMEDIES AND SOLUTIONS
Our office is prepared to be your advocate or the advocate of the elderly person that you love. With a free consultation, you are welcome to state your concerns and ask any questions that you may have about a potential elder abuse situation. We will be happy to assist you and describe the options that you have in resolving any problems involving the care and safety of an elder.
The remedies and solutions that are most commonly utilized include:
- creating powers of attorney to prevent elder abuse;
- filing elder abuse restraining orders;
- seeking the recovery of misappropriated property;
- seeking recovery for attorney’s fees and costs; and
- seeking punitive damages.
If you believe that an elder you know is being abused, in addition to seeking legal advice or counsel in a law office, please also contact Adult Protective Services at 1-844-751-6729 for Santa Barbara County, 1-805-781-1790 for San Luis Obispo County, or 1-805-654-3200 for Ventura County. Additionally, the California Advocates for Nursing Home Reform can be contacted at 1-415-974-5171
- Phipps, Sheryl (Ed.). (2017). California Elder Law Litigation: An Advocate’s Guide. Oakland, CA: Continuing Education of the Bar (CEB).
- Magistrale, Jean & Neal, Travis (Eds.). (2017). California Elder Law Resources, Benefits, and Planning: An Advocate’s Guide. Oakland, CA: Continuing Education of the Bar (CEB).
- Balisok, Russell. (2017). Elder Abuse Litigation. Glendale, CA: The Rutter Group (TRG), A Division of Thomson Reuters.