Financial Elder Abuse claims have become increasingly common in California. Buffington Law Firm’s litigation team has handled numerous cases involving allegations of Financial Elder Abuse. These claims are a growing area of law in California.
It is an eternal fact that human beings age. Those of us who are lucky will have children or loved ones to look after us when and if we become elderly and infirm, and perhaps unable to manage our own affairs due to age. Some lucky folks are hale and hearty right to the end, but many are not. Frequently a child or other loved one steps forward to help an elderly person manage his or her financial affairs in the elder’s last years of life.
Unfortunately, sometimes people abuse this trust. In California the law provides stiff penalties for those who financially abuse an elder. Some authorities report that California has the broadest and most severe Financial Elder Abuse laws of any state. Financial Elder abuse, as defined by California law, can have an almost infinite number of variations. This article focuses on the narrow (but very common) scenario in which someone close to an elder manages the elder’s financial affairs.
Firstly, for purposes of the Elder Abuse Statute, an “Elder” is anyone residing in California over age 65.
Financial abuse occurs when a person (1) takes, secretes, appropriates, obtains, or retains; (2) the real or personal property; (3) of an elder or dependent adult; (4) for a wrongful use or with intent to defraud, or both. [Cal. Welfare & Institutions Code Section 15610.30(a)]. Anyone who assists in doing these things is also liable.
This statute provides for attorneys fees and costs in addition to compensatory damages and all remedies provided by law. The attorney’s fee provision is unilateral — if the defendant wins he or she cannot obtain attorney’s fees and costs under the statute from the losing accuser. [Wood v. Santa Monica Escrow Co. 151 Cal. App. 4th 1186, 1190]. The standard of proof is “preponderance of the evidence” which is a lower standard than “clear and convincing evidence.”
This statute has the potential to do a lot of good. Elders can be very vulnerable to abuse, and it is a good thing to deter and if necessary punish such wrongful acts. Unfortunately, the statute can be and sometimes is abused. Often times a resentful relative will bring an elder abuse claim against someone who is genuinely trying to act only for an elder’s good. Transactions that may be perfectly innocent can be mischaracterized as elder abuse claims. It is a fact of life that often the children of an elder resent and/or dislike one another. When one child of the elder is managing an infirm elder’s affairs, the Elder Abuse Statute provides a tool for the vengeful and resentful other sibling to file an Elder Abuse Lawsuit. Often the elder is not a competent witness, meaning that even if the elder is perfectly happy with the help he or she has obtained, the elder cannot testify to exonerate the child or relative who has been helping the elder. It happens.
If a person is helping an elder manage his or her financial affairs, it is vital that person thoroughly document all financial transactions. Otherwise, a completely innocent transaction can result in an elder abuse claim. It is vital that in such a situation that the defendant have his or her activities in handling the elder’s finances well-documented and explainable.
If you are faced with a situation, either as plaintiff or defendant, involving a Financial Elder Abuse claim, we urge you to contact Buffington Law Firm for a free legal consultation. In this consultation you will speak, at no cost, to an experienced litigation attorney.