Do you think you may have a case of elder financial elder abuse? In 1991, the California legislature passed laws specifically to help people bring elder abuse claims. There are two types of elder abuse recognized in California courts: physical and financial. This blog post deals with financial elder abuse.
For purposes of elder abuse law, an “elder” is described as a person 65 years and older, but the laws also pertain to dependent adults who are 18 to 64 years old and unable to carry out normal activities or to protect his rights.
Financial elder abuse is defined in our statutory laws as taking, secreting, appropriating, obtaining or retaining (or assisting in doing these) the property of an elder or dependent adult for a wrongful use or with the intent to defraud (or both.) Among other things, wrongful use includes acts that one knew or should have known would be harmful to the elder or dependent adult.
It is also defined as taking, secreting, appropriating, obtaining or retaining (or assisting in doing these) the property of an elder or dependent adult by undue influence, which is excessive persuasion that overcomes the elder’s free will and which results in inequity to the elder or dependent adult.
So, who can sue for financial elder abuse? It doesn’t have to be the elder himself, although if they are still alive, the claim is brought in the elder’s name. If the elder does not have the capacity to bring the claim, a conservator or a guardian ad litem can bring the claim for the elder. A Durable Power of Attorney is not enough to allow the agent to bring an elder abuse claim on the principal’s behalf.
If the elder or dependent adult is no longer alive, the personal representative for the estate (such as the executor or administrator), or a successor in interest (such as an heir) can bring the elder abuse claim.
However, you need to bring the lawsuit within 4 years of the time of the abuse or within 4 years of the time you discovered or should have discovered the abuse.
If you prove elder abuse, what are you entitled to? In addition to normal remedies, if you successfully prove elder abuse, you may be entitled to punitive damages, damages for pain and suffering and for attorney fees. If a conservator is bringing the claim for elder abuse, he may be entitled to fees for bringing the case as well. This means that a person who commits elder abuse may be held responsible not just to return the money that he obtained by his actions, but also for the cost of the attorney and the conservator who bring the case against him, and for additional damages to punish him and to cover the pain and suffering that the elder or dependent adult experienced because of the abuse.
Can you sue for other things at the same time? Yes, you can add a claim for financial elder abuse to a lawsuit for fraud, conversion or undue influence among other things, and they are often brought at the same time.
If you have more questions, feel free to post them below or to call for a free consultation.
Originally published by Susan on September 15, 2014.