Elder Abuse Restraint Orders
There is a special kind of restraint order that protects those 65+ years old from financial, physical and mental abuse. It’s called an elder abuse restraint order and can be both temporary and permanent.
A temporary restraining order (TRO) can be obtained without first having to give notice to the party to be restrained. Of the documents that must be filed, the most important is a declaration stating the specific past act or acts that caused the financial, physical or emotional abuse. The court must be convinced that a true emergency exists to justify the restraint order.
Once obtained, the order must be served on the party to be restrained. This can be done, for free, by local law enforcement. A hearing will generally be held within two weeks of the issuance of the TRO, and the court wants to know that the restrained party has received notice of the hearing and an opportunity to attend and be heard. It’s vitally important to keep a certified copy of the TRO with the protected person so it can be shown to the police if they’re called upon.
What happens at the hearing? The purpose of the hearing is to determine whether sufficient evidence exists to turn the TRO into a permanent restraining order (which can last up to three years). Witnesses, photographs, and other documents can be used as evidence. The court may need some clarification as to the standard of proof required to obtain a permanent restraining order. “Standard of proof” refers to the weight and sufficiency of the evidence to prove that the acts were significant enough to constitute elder abuse. The standard of proof in these cases is a “preponderance of the evidence” – not “clear and convincing” evidence. Trial courts, and attorneys, often misapply the standard.
A cumbersome situation arises when the elder, who needs protection, is mentally and/or physically incapacitated and unable to ask for help. The question then becomes: Who has standing to seek relief and ask for help? A family member, or other interested person, can apply to be appointed by the court as the elder’s “Guardian ad Litem” and receive authorization to represent the elder’s interests in obtaining the restraining order. If a conservator has already been appointed for the elder, then s/he can represent the elder in the restraining order process.
If you or a loved one needs assistance with these elder and senior law issues, then pick up the phone and give us a call. We’re here to help. The initial telephone consultation is always free.
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