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.