7 Key Elements To Combat Elder Financial Abuse
Elder financial abuse can be combated, on a case by case basis, if the rip-off is discovered before the perpetrator absconds with substantial assets and money. The following identifies seven key elements to combat elder abuse:
Key #1: Age. “Age” is a key because under California law, an “elder” is a person 65 years or older. This age element qualifies an elder abuse victim to file a lawsuit under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). The EADACPA statutes were specifically enacted to provide seniors with many additional remedies not otherwise available. It recognizes “elders” as a disadvantaged class and in need of additional legal protections.
Key #2: Diminished Mental Capacity. Without diminished mental capacity, an elder is not part of the disadvantaged class the legislature seeks to protect. But this is a key element in most financial abuse cases, where the defendant takes advantage of another’s weaker state of mind. These wrongful acts are done through manipulation, coercion and undue influence.
Diminished mental capacity is often a difficult element to prove, particularly when the rip-off took place years before its discovery. The law looks to the elder’s capacity at the time the abuse occurred. Diminished capacity at the time of discovery of the wrongful act, does not necessarily mean diminished capacity must have existed when the act occurred.
The gathering of medical records, interviews with family and close friends, can all help lead to admissible and persuasive evidence that at the relevant time, the elder did suffer from a mental impairment.
Probate Code Section 811 outlines numerous factors that can determine whether one possessed legal mental capacity at the time of the theft. A psychologist or other expert witness should be thoroughly familiar with this code section when gathering and evaluating evidence to prove whether diminished mental capacity existed.
Key #3: Undue Influence. Statutes and case law define what undue influence is and how it is used against an elder to separate them from their money and property. Remember: not all “influence” is “undue”. A wife from a long term marriage certainly has “influence” over her husband, and vice versa. The type of influence that is against the law involves the manipulation and coercion discussed in Key #2, above.
Key #4: EADACPA. To understand elder financial abuse and the elements that can be used to combat it, you and your attorney should be thoroughly familiar with the numerous statutes under the Elder Abuse and Dependent Adult Civil Protection Act. These statutes contain definitions of financial abuse, physical abuse, and physical neglect, and provide incentives for attorneys to accept these types of cases which might otherwise be neglected.
Many lawyers refused to take on such cases because, before EADACPA, if the elderly plaintiff died, then the right to recover general damages (pain and suffering) would die also. Many elderly victims are frail, in ill-health and with a short life expectancy. Most attorney fees on abuse cases are taken on a contingency basis: if there is no monetary recovery, then there are no attorney fees to be paid. If the case were successful, then the attorney would receive a percentage of the monetary recovery.
If the client passed away before the case went to trial, the lawyer might have put in hundreds of hours of work that, ultimately, were wasted.
EADACPA allows for post-mortem recovery of pain and suffering. If s/he were to pass away during litigation, then their successor in interest can continue with the case and seek recovery of all damages, including pain and suffering.
Key #5: Isolation. Recognizing and discovering the element of isolation is a key to combating financial abuse. Ironically, the defendants in most cases are close family members (usually children) or a purported caregiver. These are the persons who have easy access to the elder, and are often not monitored by other family members who live great distances away. Friends or neighbors are usually reluctant to intervene, feeling that these are “family matters” and they don’t want to intrude.
When the abuser begins to steal money or property, they must make sure that they aren’t discovered. The way to accomplish this is to isolate the victim from contact with other family members and friends. Telephone calls are not allowed because the elder is always “sleeping”, or at the doctor’s office, or visiting a senior citizen center. The promise to return calls is not kept.
In the most egregious cases, a son or daughter, holding their mom or dad’s health care power of attorney, warehouses the parent in a nursing home with instructions that no one is to have contact with the patient.
Key # 6: Civil Litigation and and Criminal Prosecution. As discussed above, the EADACPA statutes provide many civil remedies and protections. However, financial predators can also be prosecuted criminally by the District Attorney’s Office. In California, Penal Code Section 368 is the criminal version of EADACPA, and allows for prosecution against persons who commit financial abuse, physical abuse, or physical neglect.
Key #7: Recovery of Property and Money. Understanding the types of remedies available in combating elder abuse cases can empower you to pursue the recovery of property and money that was wrongfully taken. As stated, the remedies available to victims are numerous and tangible. In addition, any person found liable for an EADACPA violation will automatically be disinherited to the extent of the value of the property or money wrongfully gained.
These 7 key elements are an indication of the issues that will normally be utilized in combating elder abuse cases. They include some of the pieces of the puzzle in litigating against such abuse.
If you or a loved one have been the victim of senior abuse or elder financial abuse, then pick up the phone and give us a call. We’re here to help. The initial telephone consultation is always free.
Copyright. 2007 – 2012. Law Office of George F. Dickerman. All rights reserved.