Elder abuse is a far more common occurrence than most people think. According to the National Council on Aging, 1 in 10 Americans aged 60+ have experienced elder abuse. Elder abuse can include physical abuse, emotional abuse, financial exploitation, neglect, and deprivation.
Elder financial abuse, which can involve the misuse, misappropriation, or withholding of the older adult’s financial resources, is of particular concern, as older adults are more susceptible to financial exploitation due to mental incapacity or physical disability.
California law is very concerned with elders being unduly influenced by care providers who seek to improperly access an elder’s financial resources. California probate law PRESUMES undue influence on the part of caregiver that receives any financial gain (outside of salary) through their relationship with an elder.
What is Undue Influence?
California law defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity” [California Welfare and Institutions Code Section 15610.70(a)].
In simpler terms, undue influence occurs when one person coerces another into doing something that results in an unjust benefit to the influencer. When determining if someone has been unduly influenced, California law considers factors such as vulnerability of the victim, the influencer’s apparent authority, the influencer’s actions and tactics, and the equity of the result.
Caregivers and Undue Influence
As I mentioned, elders are susceptible to financial abuse when unduly influenced by another. In particular, California law has been concerned with caregivers, or “care custodians,” unduly influencing the elders who are dependent on them. The law defines a “care custodian” as an employee of a public or private organization who provides care for elders or dependent adults [California Welfare and Institutions Code Section 15610.17].
This includes in-home support services (IHSS), clinics, nursing homes, adult day care centers, independent living facilities, regional centers for individuals with developmental disabilities, and other similar agencies.
In caregiver financial abuse situations, elders who have mental or physical disabilities are coerced into transferring their assets to their caregivers, often after the caregiver withholds care or otherwise puts pressure on the older adult.
As the caregiver has more authority and control over the elder, these relationships have the potential to become very dangerous for the elder. Because of this, any financial transfers, gifts to caregivers, or actions to influence the estate plan of the elder are presumed to be undue influence. This means that in a court of law, the caregiver has the burden of proof – they must prove why the gift was not a result of undue influence.
For questions about elder financial abuse or caregiver abuse, please call our Walnut Creek Financial Elder Abuse Law Firm at 925-322-1795 for your consultation.
I believe you have my problem….and solution too…
I have been struggling with this situation til I am blue in the face…
My mom had will, trust, achd (I am the agent). Reading my own writing of the events which have left my mother in such dire straits…(possibly wrongly spelled)…I realize that one of the details I missed was that which has named CAREGIVERS into gainful (really without limit} position when I have come to the conclusion that caregiving agencies are more than accommodated. My daughter and I were family caregivers for mom…I guess we really started some years back with housekeeping and driving mom and dad to doctor appointments and hair appts etc. I have an agreement with my mother for $10/hr which was the hourly pay when I worked at IHSS as a care provider.
2016, we hired Senior Helpers in Napa. The non-medical caregivers were scheduled 2 shits every day. My mother paid them by autopay. It was quite expensive (of course)…the main problem my Mom had was the non-medical caregivers frequently didn’t show up &/or didn’t call to let us know. I would estimate at least 2 shifts per week almost the whole time they worked for us.
My dad’s sister, Aunt Phyllis, came to the house 2017…my mother asked her not to come.
While Phyllis was here she called Council on Aging and My mom’s attorney Joyce Milks. At some point, my aunt arranged for them to come to our house. I was not home, but my aunt discussed with me that she thought mom had dementia. There was no reason to change or create new documents since my mother already had an established fiduciary relationship with Bob Trent & mom’s bills were paid thru value checking. The Council on Aging(COA) DIRECTOR Connie Aust brought a flier telling mom that she would do a better job at keeping her informed than I (Patty) did. In reality, mom was the ONLY SIGNER on all her bank accounts. The flier didn’t even show her rates. I asked her to write it in …
she wrote $75 which looked more like $25. The "daily management" was underlined, though mom owned her home (outright) and she was already paying her bills on time.
Connie Aust and Joyce Milks came this day to try to get mom to go to the bank
with Connie to release her authority and resign from her banking. Mom asked to think about it.
Long Story Short 3 APS workers (carol Ann in 2017). Craig Oleson (in 2018) and Tara Farrell in 2019…all were unfounded/unsubstantiated. They never opened a case file. The COA fiduciary was involved in persuading my caregiver companies that she had taken over mom’s care. I have proof.
It was odd, that later (not in 2017) but 2018 Connie Aust appears as Trustee on bank statement…August 31, 2018. More suspicious yet was when the Value Checking Closed and autopay accounts caused disconnection of water, phone etc . Although my mom thought to get her trust checkbook to pay the phone & service was restored, there were returned items (like my checks, 2 of which bounced) and others as well. My mom would not have closed this account or written checks on a closed account.
COA Connie Aust, a certified Guardian, court appointed Conservator, etc. set about to
make my mom release her banking and not only that….she filed a Petition for Conservatorship …asking for CS OF ESTATE & PERSON…My mother was not even acknowledged by Connie Aust …she did not receive bank statements since Connie Aust forwarded her mail & she made my mom seem incapacitated even though the APS WKR is not allowed to determine capacity in an adult over 18….(CPS has been able to determine children)…
In April 2019, my mom had a UTI and she was dehydrated as well. Delirium is a temporary condition even if my mother was in the hospital….
In 2017, my mother was not seeking to create new document/s …
if she was going to sign a document resigning from her banking, I am sure mom wouldn’t have wanted to trade wealth management for Council on Aging Private Professional Fiduciary (alternative to a bank)…it doesn’t make sense for my mom who shows on cash sweeps at almost $300K to make a change that would hurt her financially especially given the size of the caregiver invoices billing her.
Nevertheless, Connie Aust’s Petition was denied by Judge Elliott Daum because May 22, 2019 Court Investigators Report Recommendation …tenative rulings denying the Petition NO GOOD CAUSE SHOWN…unannounced visit by investigator found the house clean, my mother was well groomed, she interviewed the caregiver, the physical therapist (who told her that my mom was making progress). She interviewed me and my mother….
Nevertheless another judge came on the bench the following week….and even though the attorney for COA did not have her file with her in court, the judge suspended my ahcd and let COA have temporary with later hearings granting Connie all the powers, VOIDING ALL MY MOTHERS ESTATE DOCUMENTS…
She is in terrible danger now…she doesn’t get out of bed at all when she got up and dressed with shoes and socks every day up to this point…She has never been a mental health patient yet she has been given liquid morphine and antipsychotropics which are from HOSPICE (SUTTER)…THEY have given her comfort care RATHER THAN CURATIVE CARE….which makes sense since she is not sick…she was taking NO meds for over ten years….Her wedding rings are missing, and she doesn’t even sit up since the halodol Seroquel etc makes her too dizzy…