Financial Elder Abuse is a serious problem in California. Elderly folk sometimes lack mental vigor and sharpness, and this can sometimes cause them to be excessively trusting, particularly of relatives and their own offspring. California law provides that any California resident age 65 or older is an “Elder” for the purposes of the statute. Buffington Law Firm’s elder law attorneys have frequently dealt with court cases involving allegations of financial elder abuse. In this brief Blog article we will discuss the basic nature of financial elder abuse in California.
Put simply, financial elder abuse occurs when a person or entity does any of the following:
· Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
· Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
· Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Welf. & Inst. Code § 15610.70. Welf. & Inst. Code § 15610.70 provides that undue influence is the excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity [Welf. & Inst. Code § 15610.70].
Put simply, Elder Abuse occurs when a person takes retains, obtains, etc. the property of an elder in less than an arm’s length transaction and when the elder has no intent to make a gift. This can be by fraud, or by undue influence. Undue influence is essentially “excessive persuasion” which causes a stronger person’s desires to supercede the desire of the elder. This definition is broad, and can extend to many types of transactions. One of the most common are situations in which an Elder allows a family member or trusted friend access to their bank accounts, often in order that such person can help the elder pay his or her bills. If the trusted person then dips into the bank account for his or her own benefit, this is usually a straightforward example of elder abuse. Pressuring an elder to deed real property to someone in a manner that contradicts the elder’s estate plan is another common scenario. There are countless types of financial elder abuse.
The Code defines who has standing to bring a lawsuit for financial elder abuse — certain family members, not just the elder, have standing to do so. When someone brings an action for financial elder abuse, this is very serious business. If the plaintiff prevails in such a suit, he or she is entitled to attorney’s fees and court costs. Pursuant to Probate Code Section 859, the losing defendant can also be liable for double damages. Serious business indeed! Notably, if the defendant prevails in the lawsuit, he or she is not entitled to attorney’s fees — the statute is not reciprocal.
If you are involved in a dispute concerning financial elder abuse, Buffington Law Firm’s experienced team of trust and elder dispute attorneys are here to help. We invite you to call us for a free legal consultation. All discussions are with actual experienced elder law attorneys, are protected by attorney-client privilege, and there is never any obligation.