Elder Abuse Litigation

What is elder abuse?

Elder abuse can happen to anyone, regardless of sex, social status or ethnic background. It wears many faces and, alarmingly, typically occurs at the hands of the people who are most trusted by the victims – like their spouses, children, grandchildren, caregivers or financial or other advisors.

California’s laws set forth several specific types of elder abuse:

Physical abuse
Neglect
Financial abuse
Abandonment
Isolation
Abduction

But nearly any behavior leading to harm, pain or mental suffering of a vulnerable adult may qualify as elder abuse – regardless of whether those specific results actually were intended.

What are the Signs of Elder Abuse?

The signs of elder abuse may be very subtle, particularly when the abuse is something other than physical. A few things to look for are:

Changes in the physical appearance, grooming or general behavior of the elder;
Unusual banking activity; or
Sudden changes in estate planning, or transfers of assets, deeds or trusts.

Other signs of elder abuse might be more apparent when observing relationships between elders and their caregivers:

Does the caregiver seem to express more concern about the elder’s finances than about his or her physical and/or mental health?
Has the caregiver isolated the elder, or does the caregiver prevent the elder from interacting with friends or family members unless the caregiver is present?

Any of these warning signs – alone or combined – may suggest the elder has fallen victim to neglect, abuse or financial exploitation.

How can you help?

Unfortunately, because such a high percentage of abusers tend to be the elder’s family members, caregivers or advisors, more often than not the persons who we would expect to be solving the problems turn out to be the ones responsible for causing the problems. As a result, hundreds of thousands of elder abuse cases go unreported or ignored every year.

If you suspect someone is a victim of elder abuse, please try to intervene. First‚ take steps to get more involved in his or her care. Talk to the caregiver or advisor, assess the situation, and do your best to determine the nature and extent of the problem. If the caregiver or advisor is standing in your way, or if you feel the problem is beyond your control, consider seeking assistance from the state Ombudsman‚ other government agencies‚ or a law firm like ours that focuses on elder or fiduciary abuse.

Help is available.

Statutory Definitions of Elder Abuse

Welfare & Institutions Code § 15610.07. Abuse of an elder or a dependent adult

"Abuse of an elder or a dependent adult" means either of the following:

Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Welfare & Institutions Code § 15610.63. Physical abuse

"Physical abuse" means any of the following:

Assault, as defined in Section 240 of the Penal Code.
Battery, as defined in Section 242 of the Penal Code.
Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.
Unreasonable physical constraint, or prolonged or continual deprivation of food or water.
Sexual assault, that means any of the following:
1. Sexual battery, as defined in Section 243.4 of the Penal Code.
2. Rape, as defined in Section 261 of the Penal Code.
3. Rape in concert, as described in Section 264.1 of the Penal Code.
4. Spousal rape, as defined in Section 262 of the Penal Code.
5. Incest, as defined in Section 285 of the Penal Code.
6. Sodomy, as defined in Section 286 of the Penal Code.
7. Oral copulation, as defined in Section 288a of the Penal Code.
8. Sexual penetration, as defined in Section 289 of the Penal Code.
9. Lewd or lascivious acts as defined in paragraph (2) of subdivision (b) of Section 288 of the Penal Code.
Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
1. For punishment.
2. For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given.
3. For any purpose not authorized by the physician and surgeon.

Welfare & Institutions Code § 15610.57. Neglect

"Neglect" means either of the following:
1. The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
2. The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
Neglect includes, but is not limited to, all of the following:
1. Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
2. Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
3. Failure to protect from health and safety hazards.
4. Failure to prevent malnutrition or dehydration.
5. Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

Welfare & Institutions Code § 15610.30. Financial abuse

"Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following:
1. Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
2. Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.
1. A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative.
2. For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity's authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).
For purposes of this section, " representative" means a person or entity that is either of the following:
1. A conservator, trustee, or other representative of the estate of an elder or dependent adult.
2. An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.

Welfare & Institutions Code § 15610.05. Abandonment

"Abandonment" means the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.

Welfare & Institutions Code § 15610.43. Isolation

"Isolation" means any of the following:
1. Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.
2. Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.
3. False imprisonment, as defined in Section 236 of the Penal Code.
4. Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.
The acts set forth in subdivision (a) shall be subject to a rebuttable presumption that they do not constitute isolation if they are performed pursuant to the instructions of a physician and surgeon licensed to practice medicine in the state, who is caring for the elder or dependent adult at the time the instructions are given, and who gives the instructions as part of his or her medical care.
The acts set forth in subdivision (a) shall not constitute isolation if they are performed in response to a reasonably perceived threat of danger to property or physical safety.

Welfare & Institutions Code § 15610.06. Abduction

"Abduction" means the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court.

Welfare & Institutions Code § 15610.53. Mental suffering

"Mental suffering" means fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.