A financial elder abuse complaint in California is the topic of this blog post.
A financial elder abuse complaint in California is governed by the provisions of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) which is found in Chapter 11 of the Welfare and Institutions Code. The specific statutes that authorize a financial elder abuse complaint in California are found in Article 8.5 of Chapter 11, specifically Welfare and Institutions Code sections 15657 through 15657.8.
Originally passed in 1982 the Elder Abuse Act was created to “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.”
The Elder Abuse Act provides very powerful remedies which can be used in a wide variety of situations due to the broad language of the statues, nearly any situation in which the plaintiff is over the age of 65 or is otherwise a dependent adult allows for a cause of action for financial elder abuse.
Financial elder abuse in California is defined by the provisions of Welfare and Institutions Code section 15610.30 which states that,
“(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) 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.
(2) 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.
(3) 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 Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
(d) 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.”
Damages that may be recovered in a financial elder abuse complaint in California.
The damages that may be recovered in a financial elder abuse complaint in California include reasonable attorney’s fees and costs, and punitive damages are available if the plaintiff can prove by clear and convincing evidence that a defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse.
Welfare and Institutions Code section 15657.5 states that,
“(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney’s fees and costs set forth in subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any punitive damages may be imposed against an employer found liable for financial abuse as defined in Section 15610.30. This subdivision shall not apply to the recovery of compensatory damages or attorney’s fees and costs.
(d) Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code.
(e) Any money judgment in an action under this section shall include a statement that the damages are awarded based on a claim for financial abuse of an elder or dependent adult, as defined in Section 15610.30. If only part of the judgment is based on that claim, the judgment shall specify what amount was awarded on that basis.”
Advantages of a financial elder abuse complaint in California.
One of the most powerful advantages of filing a financial elder abuse complaint in California is the fact that California law authorizes the use of prejudgment writs of attachment in cases of financial elder abuse. While California law generally limits the type of claims for which a writ of attachment is available the Elder Abuse Act states that plaintiffs may seek a writ of attachment “whether or not other forms of relief are demanded.” See Welfare and Institutions Code section 15657.01.
A demand letter should be sent demanding the return of the property before filing a financial elder abuse complaint in California. Where there are no published cases that discuss this requirement, the language of Welfare and Institutions Code section 15657.6 requires that a formal demand be sent as it states that,
"A person or entity that takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining the real or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Section 812 of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to Section 39 of the Civil Code, shall, upon demand by the elder or dependent adult or a representative of the elder or dependent adult, as defined in subdivision (d) of Section 15610.30, return the property and if that person or entity fails to return the property, the elder or dependent adult shall be entitled to the remedies provided by Section 15657.5, including attorney’s fees and costs. This section shall not apply to any agreement entered into by an elder or dependent adult when the elder or dependent adult had capacity."
Attorneys or parties in California that would like to download a FREE sample demand letter for financial elder abuse in California created by the author can use the link shown below.
Attorneys or parties in California that would like to view a portion of a sample 13 page verified financial elder abuse complaint in California containing a cause of action for financial elder abuse under Welfare and Institutions Code section 15610.30 as well as causes of action for fraud, quiet title, cancellation of written instrument and constructive trust and including brief instructions and a sample verification sold by the author can use the link shown below.
Over 300 sample legal documents for California and Federal litigation for sale.
To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.
Follow Stan Burman on Twitter at:
https://twitter.com/LegalDocsPro
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.