Protecting the Property Californians Age 65 and Over – Financial Elder Abuse
California law protects elders and dependent adults against abuse, neglect, or abandonment. These protections are known as the ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT, and can be found in California’s Welfare and Institutions Code beginning at section 15600.
A fundamental component of the law is that it protects elders against wrongful RETENTION of their property. This means that, even if the acquisition of the property may be excusable, the person wrongfully holding the property cannot KEEP it.
Statistics demonstrate that the majority of elder abuse cases involve family members.
What is “Financial Abuse” of an Elder or Dependent Adult?
Financial abuse is the wrongful taking or retention of property of an elder, or assisting someone else to do so, or exercising undue influence (Civil Code § 1575), when the person or entity knew or should have known that this conduct is likely to be harmful to an elder or dependent adult. [See Welfare and Inst. Code § 15610.30]
Attorney Fees Recoverable
The financial elder abuse law requires payment of attorney fees, and mandates that the court SHALL award to the prevailing plaintiff reasonable attorney’s fees and costs and further, clear and convincing evidence shows recklessness, oppression, fraud, or malice, the limitations of 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply unless the defendant is the employer of the person who did the wrongful act. [See Welfare and Inst. Code § 15657.5]
History of California Financial Elder Abuse Protections
In the 1970s, the California legislature began to investigate reports of abuses in nursing homes and began to gather data, which revealed widespread physical and financial abuse of the elderly. In 1985, the legislature made fiduciary abuse a crime, and in 1991 passed a law providing for civil lawsuits to promote a public policy to protect elders.
In 1998, “Financial Elder Abuse” was codified and removed the requirement of a fiduciary relationship.
Relationship With Other Causes of Action
Financial elder abuse cases often share facts that give rise to other claims, such as undue influence, trickery, fraud or constructive fraud.
Seek Professional Advice
If have concerns about an an elder who might be a victim of financial abuse, you should contact a knowledgeable attorney. Many attorneys in the field offer free consultations. Because the elder abuse laws provide for attorney fees, in some situations the attorney may not charge the client up-front fees, but rather will prosecute the case on a contingent-fee arrangement and receive compensation for the work only if the client receives money from a judgment or settlement.