Elder Abuse Act
Many states have laws that are specifically designed to add additional protections for the elderly. In California, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) was enacted, and many times amended, to provide remedies to elders who are financially or physically abused.
An “elder” is defined as a person 65 years of age or older. A “dependent adult” is generally a person between 18 and 64 years of age who is unable to carry out activities of daily living due to mental impairments.
The following is but one situation where EADACPA protects the elderly from financial rip-offs:
“Financial abuse” . This occurs when a person (or entity) either takes, secretes, appropriates, obtains or retains real or personal property for a wrongful use. The factual scenarios under which this occurs range from taking legal title to a house owned by an elder, using an ATM card to make bank withdrawals, or obtaining and using a power of attorneyto take a loan out on the elder’s home. “Assisting” another person in carrying out such wrongful acts also constitutes an EADACPA violation.
When property is wrongfully taken, it is ofter accomplished by the use of undue influence. The EADACPA statutes recognize this as a vehicle used by perpetrators, and therefore acknowledges the use of “undue influence” as a violation of the elder abuse act.
The statutes also consider whether the alleged wrongdoer knew, or should have known, that the taking of property would cause harm to the elder. Taking property is not always an EADACPA violation. For example, if mom is mentally and physically incapacitated and it is medically necessary for her to be placed into a long term care skilled nursing facility, then consideration of how the nursing home bills will be paid should be addressed. Will mom pay privately or should Medi-Cal eligibility and planning be explored?
Nursing home bills typically run about $6,000 per month. If mom had previously executed a power of attorney and/or revocable trust, then she may have left written instructions to her agent (or successor trustee) to take the steps necessary to accomplish Medi-Cal planning in order to qualify her to receive benefits to pay the nursing home bills and, at the same time, allow her estate to be passed on to her children when she dies. Under this scenario, the “taking” of mom’s property does not cause her harm. To the contrary, it would serve to carry out her estate planning wishes.
A little background on EADACPA: Prior to its passage, the elderly and their loved ones often found it difficult to retain an attorney to take on a case of financial or physical abuse. The law generally provided that if a plaintiff (victim) died before the conclusion of the case, then his or her claim to recover general damages (i.e., pain and suffering) also died with them. Lawyers were reluctant to take on such cases, particularly where their clients were very old, frail, and their life expectancy was short. Most of these cases are accepted by the lawyer on a “contingency” basis. If there is no recovery, then the lawyer does not get paid. Hundreds of hours of legal work would have been done for free and with no meaningful result for the client and their loved ones.
The California legislature addressed this problem by including the victim”s right to now recover post-mortem damages for pain and suffering.
Many other remedies are allowed in a successful case. The victim may recover attorney fees, court costs, and even punitive damages when the atrociousness of the financial rip-off or physical abuse or neglect can be proven.
Another unique remedy is that of disinheritance. If proven liable under EADACPA, then the wrongdoer will automatically be disinherited to the extent of the value of the property that was wrongfully taken. Other statutes provide remedies for the elderly that allow the judgment to include twice the value.
EADACPA has proven to be a powerful tool in combating elder abuse in California.
If you or a loved one have been the victim of elder or senior abuse, then pick up the phone and give us a call. We’re here to help. The initial telephone consultation is always free.
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