Physical and Financial Elder Abuse
Physical and Financial Elder Abuse
“Elder abuse” typically consists of: (1) physical abuse, (2) neglect or (3) financial abuse. In California, elder persons and dependent adults are given special protection from abuse under the Elder Abuse and Dependent Adult Civil Protection Act. These laws are designed to protect those who cannot protect themselves. If you or a loved one has experienced elder abuse or adult dependent abuse, you have rights under the law. The Irvine Elder Abuse Lawyers at Brown & Charbonneau, LLP can help.
Protected Persons
Under California’s Welfare and Institutions Code, the Elder Abuse and Dependent Adult Civil Protection Act protects both “elders” and “dependent adults” from abuse. The state of California distinguishes an “elder” as any person 65 years of age or older and a “dependent adult” as any person between the ages of 18 and 64, who have physical or mental limitations that restrict their ability to carry out normal activities and protect their rights. An experienced Orange County elder abuse litigation attorney can help with these issues.
Types of Abuse
Prohibited abuse can take the form of any of the following:
• Physical abuse, including assault, battery, physical or chemical restraint and prolonged or continual deprivation of food or water
• Sexual abuse, including incest, spousal rape, and lewd acts
• Neglect, defined as the failure of any person having the care or custody of an elder or dependent adult to exercise the degree of care that a reasonable person in like position would exercise, including the failure to assist in personal hygiene or to provide food, clothing, shelter or medical care for physical or mental health needs
• Financial abuse, including taking, appropriating, obtaining or retaining real or personal property for a wrongful use, or with intent to defraud or by undue influence
• Abduction, defined as the removal from California and/or restraining from returning an elder or dependent adult from returning to California
• Abandonment and isolation or other treatment with resulting physical harm or mental suffering
• Deprivation of care by a custodian of goods or services that are necessary to avoid physical harm or mental suffering
Financial Abuse & Who Can Bring a Claim
In California, elder persons and dependent adults are given special protection from financial abuse under the Elder Abuse and Dependent Adult Civil Protection Act. Financial abuse may include taking, appropriating, obtaining or retaining real or personal property for a wrongful use or with intent to defraud, or by undue influence.
The elder or dependent adult victim of financial abuse themselves has standing to bring an action under the Elder Abuse and Dependent Adult Civil Protection Act. In addition, an action for financial abuse under the Act may also be initiated or maintained by the elder or dependent adult’s representative, including a conservator, trustee, or attorney-in-fact. Indeed, in many cases, the elder or dependent adult victim may be incapacitated, and the appointment of a conservator should be sought to initiate or maintain the claim. Such a conservatorship can be either temporary or permanent, and in the former, terminated after the lawsuit if appropriate.
When the elder or dependent adult victim of financial abuse is deceased, the victim’s personal representative may pursue an action, the right to initiate or maintain the action passing to the personal representative upon death.
If no personal representative exists, the personal representative refuses to bring the action, or if the personal representative’s family or affiliate is alleged to have committed the financial abuse, the right to initiate or maintain the action passes to any of the following:
• An heir whose interest is affected by the action;
• The decedent’s successor in interest, defined as the beneficiary of the decedent’s estate or someone who succeeds to the beneficiary’s cause of action or to a particular item of property that is the subject of the cause of action; or
• An “interested person,” as defined in Probate Code section 48, who is also an heir or beneficiary of the decedent’s estate.
Restraining Orders
Restraining orders can be obtained in many cases. This can stop the wrongful conduct immediately until the legal process can be addressed. For more information on Restraining Orders CLICK HERE.
If two or more persons claim to have standing to initiate or maintain an action for elder abuse, the Court, upon petition or motion, will make an order concerning the parties that is appropriate to ensure the proper administration of justice in the case, standing being interpreted in a manner that will deter financial abuse.