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self-study / Family Law

Jan. 3, 2023

The elder abuse act and its expansion to address isolation

Family Justice Center Courthouse

Shawna Schwarz

Judge,

Juvenile Dependency

The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) was enacted to prevent the recurrence of abuse of elders and dependent adults. (Welf. & Inst. Code, § 15657.03(c).) The EADACPA provides petitions may be brought to protect persons from abuse, and effective Jan. 1, 2023, the statute was expanded to alleviate abuse that was exacerbated by the COVID-19 pandemic in the form of isolation. This article and self-study test will review who is protected under the EADACPA, the types of abuse covered, who can petition for relief, and the types of orders that can be obtained from judges, including starting in 2023, "an order enjoining a party from abusing an elder or dependent adult by isolating them." (§ 15657.03(b)(5)).

Who is Protected

An elder adult is defined as any person residing in California who is 65 years of age or older. (§ 15610.27.) A dependent adult is a person, regardless of whether the person lives independently, who is between the ages of 18 and 64 with physical or mental limitations that restrict the ability to carry out normal activities or to protect their rights. (§ 15610.23.)

The category of a dependent adult includes those who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age, or who are between 18 and 64 and have been admitted as inpatient to a 24-hour health facility defined by Health and Safety Code §§1250, 1250.2 and 1250.3. (§ 15610.23 & § 15610.25.)

In addition, a protective order issued by a court can cover persons who are not themselves elderly or dependent adults, but who nonetheless could greatly benefit by being protected. A restraining order issued under the statute can cover "the petitioner, and, in the discretion of the court, on a showing of good cause, of other named family or household members or a conservator, if any, of the petitioner." (§ 15657.03(b)(5)(A).) The court can even make an order, on a showing of good cause, with respect to "an animal owned, possessed, leased, kept, or held by the petitioner, or residing in the residence or household of the petitioner." (§ 15657.03(b)(5)(A).)

Abuse

Under the EADACPA, abuse is broadly defined. Physical abuse within the statute includes assault, battery, assault with a deadly weapon or force likely to produce great bodily injury, unreasonable physical constraint, or prolonged or continual deprivation of food or water, sexual assault, and use of a physical or chemical restraint or psychotropic medication for punishment, "[f]or 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" and for any purpose not authorized by a physician and surgeon. (§ 15610.63.)

Abuse also includes neglect (§ 15610.57); financial abuse (§ 15610.30); abandonment (§ 15610.05); isolation (§ 15610.43); abduction (§ 15610.06); and treatment with resulting physical harm, pain or mental suffering (§ 15610.53). The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering from being inflicted also amounts to abuse of an elder or dependent adult. (§ 15610.07.)

Further, "other treatment" of an elder that is not physical abuse, neglect, abandonment, isolation or abduction can constitute elder abuse if the treatment results in physical harm or pain or mental suffering to the elder (§ 15610.07(a)(1)), even if the alleged abuser has no responsibility to care for the elder and no control of the elder's property. (Darrin v. Miller, 32 Cal.App.5th 450 (2019).) Hence, under the Court of Appeal opinion, a victim's abusive next-door neighbor may be restrained under the EADACPA.

Who Can Petition

The following persons may file a petition for relief:

Elder/dependent adult (§ 15657.03(a)(1)),

Conservator (§ 15657.03(a)(2)),

Trustee (§ 15657.03(a)(2)),

Attorney-in-fact acting within authority of power of attorney (§ 15657.03(a)(2)),

Guardian ad litem (§ 15657.03(a)(2)),

Other person authorized (§ 15657.03(a)(2)).

Also, per section 15657.03(a)(3), the county adult protective services may file a petition if: (i) elder/dependent adult has suffered abuse (§ 15610.07) and has impaired ability to appreciate and understand circumstances that place him/her at risk of harm, or (ii) elder/dependent adult has provided written authorization to adult protective services agency to act on his/her behalf.

Mutual orders may also be obtained once a petition is filed. The respondent to a petition can file a cross-complaint if the respondent is an elder/dependent adult. (§ 15657.03.) If the respondent is not an elder/dependent adult, relief may be obtained by filing a civil harassment action. (Code Civ. Proc., § 527.6.)

Court Orders

On request of a party, orders may issue upon a showing by a preponderance of the evidence of a past act or acts of abuse. (Bookout v. Nielsen, 155 Cal.App.4th 1131 (2007).) An order may be renewed (§ 15657.03(i)(1)), upon a showing, by a preponderance of the evidence, of reasonable apprehension of future abuse, without the need to show further abuse occurred since issuance of the original order. (Gordon B. v. Gomez, 22 Cal.App.5th 92 (2018).)

In response to a petition, a court may issue a Temporary Restraining Order (TRO). The court may also issue an order after conducting a hearing.

TRO's

Personal conduct orders (§ 15657.03(b)(5)(A)),

No contact and stay away orders (§ 15657.03(b)(5)(A)),

Pets: care, stay away, other protections (§ 15657.03(b)(5)(A)(i) & (ii)),

Other restraints to effectuate the court's orders (§ 15657.03(b)(5)(C)),

Prohibit getting address of protected party (§ 15657.04(a)).

Residence exclusion orders are available. (§ 15657.03(b)(5)(B) and (d).) However, per section 15657.03(d), for ex parte residence exclusion, there must be showing of:

Party who will stay has right under color of law to possession of premises;

Party to be excluded has assaulted/threatened to assault petitioner, family or household member, or conservator, and

Physical or emotional harm would otherwise result to petitioner, other named family or household member, or conservator.

TRO's barring owning or possessing firearms/ammunition may be issued. (§ 15657.03(u).) But no firearms orders may issue if the protective order is sought for financial abuse unaccompanied by force, threat, harassment, intimidation or other form of abuse. (§ 15657.03(u)(4).)

Orders After Hearings

All ex parte orders (§ 15657.03(h)),

Residence exclusion, if court finds that physical/emotional harm would otherwise result to petitioner, family or household member (§ 15657.03(h)),

Attachment may be issued for damages if financial abuse (§ 15657.01).

No residence exclusion order may issue after a hearing if legal/equitable title or lease is in sole name of party to be excluded, or in name of party to be excluded and any other party besides petitioner. (§ 15657.03(b)(5)(B).)

Attorney's fees and costs can be awarded to the prevailing party. (§ 15657.03(t).) Where clear and convincing evidence that a defendant is liable for physical abuse (§ 15610.63) or neglect (§ 15610.57), and that a defendant has been guilty of recklessness, oppression, fraud, or malice, a court shall award reasonable attorney's fees and costs, including, fees for the services of a conservator devoted to litigation of a claim brought under the EADACPA. There are no limitations as to recovery for only losses or damages prior to death. (Code of Civ. Proc., § 377.34(f).)

TRO's last up to 21 days, and 25 days if good cause is shown. (§ 15657.03(f).) If a hearing is continued, a granted TRO remains in effect. (§ 15657.03(n)(2).)

Orders After Hearing may last not more than 5 years. (§ 15657.03(i)(1).) If the order is silent, it lasts 3 years. (§ 15657.03(i)(2).)

Duration of renewal: Five years or permanently, brought w/in 3 months before the expiration of order. (§ 15657.03(i)(1).)

New Isolation Provisions

Pursuant to an amendment of the EADACPA (AB 1243 (2021-2022 reg. sess.), an order pertaining to isolation was added to the types of protective orders that may be issued. (§ 15657.03(b)(5).)

As explained by the author of the new law when the bill was heard in the Legislature, "Due to the ongoing COVID-19 pandemic, visitation to vulnerable groups including elderly individuals has been limited to prevent/minimize exposure to the virus. For many families caring for relatives in community this meant little to no visitation outside of primary caregivers. AB 1243 helps prevent isolation of vulnerable Californians by allowing family members or other persons with a pre-existing relationship (as defined in the bill language) to petition the court through the existing elder and dependent adult abuse restraining order process for orders enjoining the isolation and allowing contact with the vulnerable adult as long as the elder or dependent adult wants that contact. This legislation specifically focuses on preventing isolation of elders and dependent adults living in the community with family or caregivers." (Assem. Floor Analysis of AB 1243 (Sep. 8, 2021), p. 3.)

Section 15657.03(b)(5)(E) now provides a protective order includes,

(i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:

(I) The respondent's past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.

(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.

(III) The respondent's isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult's desire not to have contact with the interested party.

(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.

(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.

(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.

(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.

#1223

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