Remedies for Elder Financial Abuse
| Publication year | 2016 |
| Author | By Vivian L. Thoreen, Esq., Christopher D. Carico, Esq., and David G. Knitter, Esq. |
By Vivian L. Thoreen, Esq.,* Christopher D. Carico, Esq.,** and David G. Knitter, Esq.***
Elder financial abuse continues to be a vehicle for predators to obtain wealth from the unwary. This article is part 2 to an article previously published in the Quarterly regarding elder financial abuse.1
The Elder Abuse and Dependent Adult Civil Protection Act (the "Act" or the "Elder Abuse Act") is codified in Welfare and Institutions Code section 15600 et seq. (References in this article to "elder" and "elder abuse" includes "dependent adult"2 and "dependent adult abuse," as defined by the Act.)
The Elder Abuse Act was originally designed to encourage the reporting of abuse and neglect of elders and dependent adults, and that continues to be a major component of the Elder Abuse Act as it stands in its current form today. The statutory scheme was later modified to provide incentives for private, civil enforcement through lawsuits. The Elder Abuse Act now permits, and even requires, certain heightened remedies, subject to statutory criteria and limitations. These remedies include attorney's fees and costs, punitive damages, pain and suffering damages (even after the abused elder's death), and fees for conservators who successfully bring elder abuse claims. In addition, remedies for elder financial abuse can be found throughout the other California Codes, including the Probate Code, the Business and Professions Code, the Insurance Code, and the Civil Code.
This article will undertake a comprehensive examination of the various remedies for elder financial abuse under California law.
Financial abuse of an elder occurs when a person or entity does any of the following: (1) takes, secretes, appropriates, obtains, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both; (2) assists in doing any of these things; or (3) does any of these things by undue influence.3
In addition, a person or entity "shall be deemed" to have done these things for a wrongful use or with the intent to defraud if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder. Succinctly, a "wrongful purpose" is a taking that is likely to be harmful to the elder.
The statute explains that a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.4
There is a statutory mandate that each county establish a 24/7 emergency-response adult protective services program (APS) to take and investigate reports of abuse of an elder or a dependent adult.5 "Protective services" include investigations, needs assessments, and remedial and preventive social work activities; providing the necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; the use of multidisciplinary teams; and operating a system in which reporting of abuse can occur on a 24-hour basis.6
When an allegation of abuse of an elder is reported to APS and an agency social worker has reason to believe an elder has suffered or is at substantial risk of abuse pursuant to Welfare and Institutions Code section 15762, the social worker is required to attempt to obtain consent to enter and meet privately with the elder or dependent adult in the residence or dwelling in which the elder or dependent adult resides without the presence of the person's caretaker, attendant, family or household member, unless the person requests the presence any such person, or refuses to meet with the social worker.7 Unless a Penal Code violation has been alleged, the private interview of the elder cannot be obtained without the consent of the elder of dependent adult.8
California currently adheres to the minority rule that prevents an attorney from reporting elder abuse or instituting a conservatorship proceeding without the elder client's consent. An attorney is bound to the duty of confidentiality and loyalty and cannot report to APS.9 However, an attorney can, and should, report to APS with the consent of, and full disclosure to, the client of the ramifications of a report ? such as the imposition of a conservatorship.
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If the elder is so incapacitated that he or she cannot legally give or deny consent to protective services, APS may initiate a petition for temporary conservatorship.10 A temporary conservatorship is typically accomplished through the County Public Guardian if a family member or other petitioner will not take action.
B. Law EnforcementAPS is required to report any known or suspected instance of criminal activity to the local law enforcement agency.11 A law enforcement agency may seek a search warrant to enable a peace officer to have access to, and inspect, the premises if a county welfare worker has been denied access by the person in possession of the premises and there is probable cause to believe an elder or dependent adult there is subject to abuse.12
Certain municipalities have peace officers dedicated to investigating elder abuse. In several California counties, the District Attorney's Office has Special Prosecution Units for crimes involving elders (e.g., Napa, San Diego, San Bernardino). The California Attorney General's Office also investigates and prosecutes elder abuse.
C. Federal and State Governmental AgenciesSeveral federal agencies take reports, investigate and, in some instances, prosecute different types of financial abuse. Such federal agencies include the Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Federal Bureau of Investigation (FBI), U.S. Attorney's Office (DOJ), and Consumer Financial Protection Bureau (CFPB).
State agencies that take reports and investigate abuse include the California State License Board (CSLB), Department of Consumer Affairs (DCA), and Department of Insurance (DOI).
Appendix "X" of the U.S. Government Accountability Office, GAO-13-110, Elder Justice: National Strategy Needed to Effectively Combat Elder Financial Exploitation, November 2012 report, lists numerous private non-profit, county and state resources available in California to combat abuse.
Superior court services, such as self-help clinics, are available in many counties and provide assistance in completing elder abuse restraining order and other judicial council forms.
D. Community ServicesMultidisciplinary teams, including financial abuse specialist teams, elder death review teams, senior roundtables, and other community resources, should be considered for reporting elder abuse and assistance in seeking recovery or stopping the abuse. There are at least 95 separate, nonprofit organizations that provide or support free legal services to indigent Californians, including elders (e.g., various Legal Aid, Legal Assistance, and Legal Services organizations throughout California).13 Community non-profits are a wealth of information and can provide assistance in some circumstances. Practitioners are encouraged to consult the websites of the State Bar of California, Educating Seniors Project; National Center on Elder Abuse (NCEA); National Committee for the Prevention of Elder Abuse (NCPEA); California Advocates for Nursing Home Reform (CANHR); and the California Attorney General's Office for information and links to useful resources to combat elder abuse.
Family members are abusers more often than any other group.14 Most family members, however, do not set out to "steal" from the elder and are often unaware that their actions have crossed the line into financial abuse. Because caring for the elderly is often difficult and time-consuming, the family member providing the bulk of the care may develop a sense of entitlement. Acting on that entitlement may amount to financial abuse without the family member truly understanding the damage to the elder. Of course, abusers can and do have different levels of culpability.
Banning an overreaching family member who is caring for the elder (whether physically, emotionally, or both) from the elder's life may not be practical. For one thing, the ban could leave a void filled by someone even more predatory. But for a variety of reasons, not all bad, the elder may want to continue his or her relationship with the family member. The authors believe that initiating litigation against a family member who is providing physical care that the elder cannot otherwise afford may be impractical and should be considered as a last resort.
B. Pre-Litigation MediationMediation between family members before litigation begins may result in workable compromises that keep the family intact. Changes as simple as separating the perpetrator from the elder's finances (including cancelling unnecessary credit cards, changing PIN numbers, and modifying online access) may prove adequate to stop the abuse. Placing the elder's funds under the control of a professional trustee may prevent further opportunities for abuse. Since family members may not be aware of pre-litigation mediation as an alternative, counsel may need to steer them to suitable mediators and be available during the mediation to document any final agreement.
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C. Estate Planning Modifications to Protect Against Further AbuseWhile careful estate planning cannot prevent all forms of elder financial abuse, it can reduce opportunities for continued abuse. Effective changes may be as simple as revoking outstanding powers of attorney...
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