Five FAQs Regarding Financial Elder Abuse

By: Ingrid Evans Legal 3 Followers


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What is Financial Elder Abuse? 

In California, financial elder abuse is broadly defined as taking of a senior’s property for a “wrongful use or with intent to defraud.” Cal. Welf. & Inst. Code § 15610.30(a)(1). This statute also extends to anyone who is assisting another person with taking or appropriating wealth and assets from an elderly person. Cal. Welf. & Inst. Code § 15610.30(a)(2). Unfortunately, most cases of financial elder abuse are perpetrated by the victim’s close family members, caregivers, spouses, girlfriends or boyfriends, or trusted advisors. In the state of California, financial elder abuse is a crime as well as grounds for civil liability.  Cal. Penal Code § 368.  Always report financial elder abuse to the authorities but also seek out a lawyer to pursue all remedies available to the victim.

 

What are some common ways financial elder abuse can occur? 

Some of the most common forms of elder financial abuse are: Family or caregivers who take advantage of the elder’s trust and mental state for their own gain; the abuse of trust funds meant to care for the elder; misuse of a Power of Attorney over the senior’s bank accounts and other property; unauthorized charges to credit cards and forged checks; the alteration of a will or trust due to another person’s undue influence; the confiscation of personal belongings or bank funds; and, the execution of Wills, trusts, Powers of Attorney and other legal instruments or documents when an elder’s mental state is tenuous.

 

What is undue influence? 

Undue influence is often at the core of acts of financial elder abuse.  California law specifically recognizes taking a senior’s property by undue influence as a form of abuse.  Cal. Welf. & Inst. Code § 15610.30(a)(3). In determining whether a transaction was the result of financial elder abuse, a court will likely inquire whether an elder person was unduly influenced by another person’s coercive or manipulative efforts. Undue influence occurs whenever there is “excessive persuasion” that ”overcomes that person’s free will and results in inequity.” See Cal. Welf. & Inst. Code § 15610,70(a).  For example, if a nursing home caretaker is spending a substantial amount of time bad-mouthing the elder’s children in an effort to thwart their inheritance, a court might find that undue influence was at play. In order to prove undue influence, however, there must be evidence of undue influence.  Evidence of an inequitable result alone is not enough.  Cal. Welf. & Inst. Code § 15610.30(b)

 


What constitutes evidence of undue influence?

 A court will consider a variety of factors in determining whether there was undue influence. The court will determine whether the senior citizen was particularly vulnerable and whether the alleged abuser was aware of their vulnerability; examine the alleged abuser’s authority or power over the elder; take a close look at some of the actions or tactics the abuser used to influence the elder’s decision-making; and examine whether the ultimate result was egregiously unfair. Cal. Welf. & Inst. Code § 15610.70(a).

 

Can a financial elder abuse claim be prosecuted after the victim’s death? 

Fortunately, yes. See Cal. Welf. & Inst. Code § 15657.3 (d)(personal representatives, heirs, successors in interest and other interested parties may have standing to bring the elder abuse claims after the victim’s death). Elder abuse claims can be argued in court even after the victim has passed away. In fact, each year courts hear a significant number of financial elder abuse claims where the victim has already died.

 

What remedies are available for financial elder abuse claims?

Remedies available in California for financial elder abuse victims and their families include restitution (getting your money back), rescission (undoing an invalid contract), punitive damages, and recovery of attorneys’ fees and costs incurred in bringing a financial elder abuse action against wrongdoers. Cal. Welf. & Inst. Code § 15657.5.

 

Author Bio

Ingrid Evans

Ingrid Evans is the founding partner of the Evans Law Firm. She is an experienced litigator in state and federal courts, and is licensed to practice law in California, the District of Columbia, and New York.

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