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self-study / Torts

Navigating elder abuse restraining orders in California

Michael Antonovich Antelope Valley Courthouse

Scott J. Nord

Commissioner, Los Angeles County Superior Court

Family Court

Let's start with this hypothetical: Your grandfather is about to turn 99 years old. Generally, he is in good health and has all of his mental faculties. Your grandfather has been living with a woman, who is in her late 70s, for approximately five years. The woman is demanding that your grandfather marry her, or she would move out. The sole basis for the marriage is to make her eligible for his Social Security benefits when he dies. She is offering to sign a prenuptial agreement. Your grandfather already pays all of her expenses, prepaid for their assisted living residence for a year in advance which covers room and board, signed over part of his military pension to her, and provided for this woman financially upon his demise. She has convinced him that she will become homeless when he dies because she is not financially stable without his help. Your grandfather has come to rely on this person for his daily care and is scared of being alone if she left even though he has sufficient financial ability to pay for in-home care if she did leave. The woman, knowing that your grandfather has spoken to you about this situation, has begun to speak negatively about you to your grandfather and started calling you the "enemy" and saying, "it's a war between you." Is your grandfather the victim of elder abuse?

Elder Abuse Act

In some cultures, caring for the elderly is a responsibility passed down from generation to generation. Each succeeding generation taking care of the preceding generation. Unfortunately, some see the obligation to care for the elderly as a burden for which they have neither have the ability, emotionally or financially nor desire to undertake. This leaves the elderly potentially subject to abuse, neglect or abandonment which may require protection under the law. Welf. & Inst. Code Section 15600. Concurrently, in light of their age, health issues, mental acuity and other infirmities, the elderly are both more vulnerable and less capable of asking for help and protection. Welf. & Inst. Code Section 15600(c). According to the Centers for Disease Control and Prevention, it is estimated that one in 10 people over the age of 60 will experience elder abuse. Centers for Disease Control and Prevention, Preventing Elder Abuse (2020). California's Elder Abuse Act seeks to protect elders from mistreatment.

Who May Seek Protection for an Elder Abuse Protection Order?

An elder who has suffered abuse may seek a protective order from a third party. Welf. & Inst. Code Section 15657.03. The Elder Abuse Act defines "abuse" as physical abuse (including treatment that causes physical harm, pain or mental suffering), neglect (including deprivation of care), abandonment, isolation, abduction and financial abuse. Welf. & Inst. Code Section 15610.07.

If able, the elder can personally seek a protective order. However, many elders are vulnerable and unable to ask for help. In those cases, a petition for a restraining order may be brought on behalf of the abused elder by a conservator, trustee or a contingent beneficiary of a trust. Welf. & Inst. Code Section 15657.03; Estate of Lowrie, 118 Cal. App. 4th 220 (2004). Additionally, an attorney-in-fact of an elder acting within the authority of a power of attorney or a person appointed as guardian ad litem for the elder can file the petition on their behalf. Welf. & Inst. Code Section 15657.03(a)(2). Governmental agencies may also seek protection for an elder under certain situations as well. Welf. & Inst. Code Section 15657.03(a)(3)(A).

Which Type of Protection Order Is the Best Choice?

In addition to an elder abuse restraining order, other protective orders could also be available to an elder who is suffering abuse, such as a domestic violence restraining order (Family Law Code Section 6300), or a civil harassment restraining orders (California Code of Civil Procedure Section 527.6). Each type of restraining order has a different standard of proof: clear and convincing evidence for civil harassment restraining orders (CCP Sections 527.6(i)) versus preponderance of the evidence for domestic violence and elder abuse restraining orders Evidence Code Section 115; Gdwoski v. Gdwoski, 175 Cal. App. 4th 128 (2009). Domestic violence restraining orders require "affinity" or other specified relationship between the protected and restrained parties. Family Law Code Sections 6205, and 6211. By contrast, civil harassment and elder abuse restraining orders have no such requirement. Unlike civil harassment restraining orders, domestic violence and elder abuse restraining orders require no showing of future harm. Past abuse is sufficient. Welf. & Inst. Code Section 15657.03. Elder abuse restraining orders are limited to persons who are 65 years or older, whereas domestic violence and civil harassment restraining orders have no age-based limitations, although a guardian ad litem is required for minors under the age of 12. Welf. & Inst. Code Section 15610.27; Family Law Code Section 6301(a) and CCP Sections 372(b)(1), 374 and 527.6(a)(2). Finally, different remedies (move-out, stay-away orders, property control, support issues, financial orders) are available under the different types of protective orders.

In theory, an elder could choose an order of protection through an elder abuse restraining order, civil harassment restraining order, and/or domestic violence restraining order against the same person.

Acts of Commission and Omission

Unlike other orders of protection, an elder abuse restraining order can be sought against a party for both their acts of commission and their acts of omission. The topics discussed below apply to both the actual perpetrators and to those charged with protecting the elderly who either permit the conduct to occur or take no steps to end the conduct when put on actual or constructive notice of its occurrence

Physical Abuse

Physical abuse applies in a wide range of situations, including active assaultive conduct, as well as passive forms of abuse, such as extreme neglect. People v. Heitzman, 9 Cal. 4th 189 (1994). Speaking more broadly, physical abuse encompasses any person who willfully causes or permits an elder to suffer unjustifiable physical pain or mental suffering, causes injury, or causes or permits the elder to be placed in a situation in which his or her person or health is endangered. Penal Code Section 368; Welf. & Inst. Code Section 15610.07 (a). The definition of physical abuse also includes sexual abuse. Unlike other discussions below, an elder abuse restraining order based solely on physical abuse has no requirement that the restrained party live with or have any caretaking responsibility for the elder. Gdowski. Indications of physical abuse would be bruises, burns, cuts or scars which are unexplained, signs of punishment or restraint, or the elder stops taking part in activities they enjoy. National Institute of Health, Elder Abuse (2020)

Neglect

With an allegation of neglect, unlike physical abuse, the relationship between the elder and a third party can make a person potentially liable for either their actions or their failure to act. Whether by a family member or paid professional, any person having the care or custody of an elder who fails to exercise that degree of care to provide for the basic needs and comforts of the elder commits neglect. Welf. & Inst. Code Section 15610.57(a)(1) and (2); Delaney v. Baker, 20 Cal. 4th 23 (1999); Darrin v. Miller, 32 Cal. App. 5th 450 (2019). Neglect includes the failure to assist in personal hygiene, or in the provision of food, clothing or shelter (Welf. & Inst. Code Section 15610.57(b)(1)), the failure to prevent malnutrition or dehydration (Welf. & Inst. Code Section 15610.57(b)(4)), the failure to provide medical care or deprive an elder of medical care (Welf. & Inst. Code Section 15610.57(b)(2)), and the failure to protect from health and safety hazards (Welf. & Inst. Code Section 15610.57(b)(3)). Evidence of neglect may include unkempt physical appearance (unwashed hair, disheveled or dirty clothing), unclean living conditions, denial of medically necessary aids (walker, hearing aids, medication, dentures, broken eyeglasses/frames), and other preventable conditions (e.g., bed sores). National Institute of Health, Elder Abuse (2020).

Emotional Abuse

"Mental suffering" is defined as fear, agitation, confusion, severe depression or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, or harassment. Welf. & Inst. Code Section 15610.53. Emotional abuse includes both actual and threatened abandonment, isolation or abduction. Welf. & Inst. Code Section 15610.07(a). Emotional abuse can include hurtful words, yelling, threatening or repeatedly ignoring the elder. It may also include isolating the elder from friends or family members. Some common signs of emotional elder abuse could be withdrawal from normal activities, a sudden change in alertness, unusual depression; or frequent arguments between the caregiver and older adult. Centers for Disease Control and Prevention, Elder Abuse (2020); National Institute of Health, Elder Abuse (2020). Additionally, the denial of medical care, medical aid devices, living conditions imposed by a caregiver, and the overall care is taken of the elder could also be taken into consideration when determining if possible emotional abuse has occurred.

Financial Abuse

Financial abuse occurs when someone takes, secretes, appropriates or retains real or personal property of an elder for wrongful use or with intent to defraud, or both. Welf. & Inst. Code Section 15610.30(a)(1)). An example of financial elder abuse would be the use of an elder's assets without their consent or with their "consent" obtained by intimidation, threat, fear or manipulation. The Legislature has stated that when a person or entity obtains property and should have known that their conduct is likely to be harmful to the elder, the conduct is per se abusive, irrespective of whether the property was obtained through agreement, donative transfer, or testamentary bequest. A party will be liable for deprivation of an elder's property that is taken for wrongful use or with intent to defraud or that is committed by undue influence. Welf. & Inst. Code Section 15610.30 (a)-(c); Mahan v. Charles W. Chan Ins. Agency, Inc., 14 Cal. App. 5th 841 (2017). However, merely because a contract or transaction is disadvantageous to an elder does not necessarily render it elder abuse, e.g., foreclosure of real property arising from a defaulted residential mortgage. Stebley v. Litton Loan Servicing, LLP, 202 Cal. App. 4th 522 (2011); Welf. & Inst. Code Section 15610.70(b).

"Undue influence" means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity to the elder, such as a transfer of property (real or personal) to third persons (e.g., caretakers) for no value or significantly below fair market value. The test for undue influence is governed by a series of factors, including the vulnerability of the victim, the influencer's apparent authority, the actions or tactics used by the influencer, and the equity of the result. Mahan; Welf. & Inst. Code Section 15610.70(a)(1)-(4). Bad faith or intent to defraud are sufficient for a finding of elder abuse, even without actual physical harm or mental suffering. Stebley; Bonfigli v. Strachan, 192 Cal. App. 4th 1032 (2011).

Some indications of financial elder abuse include multiple or unusual charges on credit cards, unusual withdrawals from bank accounts or excess use of teller machines for cash withdrawals, transfer of financial accounts or the unexplained changing of beneficiaries on accounts, predatory loans or excessive or repetitive fees charged for professional services (e.g., accounting "churning"). National Institute of Health, Elder Abuse (2020).

Other Related Issues

While this article addresses elder abuse restraining orders, Section 15600 also applies to dependent adults and the standards are generally the same. Additionally, other topics covered under the Elder Abuse Act, but not included in this article, include criminal liability (Penal Code Section 368); civil and punitive damages, and attorney fees awards (Welf. & Inst. Code Section 15657 et seq.; Arace v. Medico Investments, LLC, 48 Cal. App. 5th 977 (2020)); and forfeiture from the elder's estate. Probate Code Section 259.

Finally, many signs discussed above could be indicative of elder abuse such as unkempt physical appearance (unwashed hair, disheveled or dirty clothing), unclean living conditions, failure to participate in activities, or financial irregularities, may also be warnings of medical issues (e.g., dementia) that should not be ignored. 

#872

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