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Elder Abuse

How does CA Law define Elder Abuse and Undue Influence?

Matthew Talbot discusses CA Probate law as it related to elder abuse

Elder Abuse typically takes place when there is a family member over the age of 65 who is unable to care for themselves, either because of physical or mental decline. Elder Abuse, including elder financial abuse, often plays a part in a number of Estate Matters, including Conservatorships, Probates, and Trust Litigations. Our firm specializes in elder abuse that has occurred within the context of a Probate matter, as well as related financial elder abuse matters.

Elder Abuse can occur out of malice or neglect, and most often includes financial abuse and isolation. Elder abuse can also include physical abuse, emotional abuse, malnourishment, abandonment, and any other actions or inactions that cause harm to an elder.

Elder Abuse matters are often pursued through a trust or estate action, after the death of the loved one has occurred.

Who can bring an Elder Abuse Lawsuit?

Anyone who believes elder abuse is occurring can bring a lawsuit. Kinds of elder abuse can include:

  1. Financial Elder Abuse
  2. Isolation
  3. Malnourishment
  4. Lack of Medical Care/Over-Medication

An experienced Elder Abuse attorney can guide you as to your best course of action. In Probate Court, during a person’s lifetime we seek to protect the elder through conservatorship or direct mediation and seek financial damages. After the death of the loved one, financial elder abuse actions can be brought within a trust or estate lawsuit.

Financial Elder Abuse and Undue Influence

Undue Influence, as defined by California Probate law, is influence exerted over someone that is “excessive” and either causes an action to be taken, or prevents an action from being taken. Undue influence is typically applicable to persons who are over the age of 65.

Financial elder abuse typically takes the form of an individual such as a family member or caregiver exerting pressure upon an elder to take or refrain from an action that financially benefits the family member or caregiver. For example, an adult child convinces his elderly mother who has recently been diagnosed with dementia to change her will and exclude the child’s siblings.

Allegations of undue influence can be both difficult to prove and difficult to disprove. One way attorneys deal with this is to “flip the burden of proof” to the other party. 

Financial Elder Abuse can occur when:

  1. Undue influence is applied to change a trust or will
  2. Inappropriate changes are made to accounts or property
  3. Trustees misuse or steal funds from a trust
  4. Family/caregivers exercise inappropriate influence
  5. Family/caregivers take advantage of diminished capacity
  6. Trustees misuse or steal funds from a trust
  7. Theft of personal belongings occurs
  8. Family/caregiver/friend steals or uses funds

How is Financial Elder Abuse defined under California Law?

California has specific laws in place to protect elderly persons. Elder financial abuse is defined by the State as when a person or entity does any of the following:

  1. Takes, secretes, appropriates, obtains, or retains real or personal property of an elder 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 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 and by undue influence. 

Indicators that Financial Elder Abuse may be occurring:

  1. Refusal to spend money on an Elder’s care by a caregiver
  2. Long lost relatives or friends, or new acquaintances influencing an elder
  3. Expensive gifts given by elder
  4. Contributions to newly formed institutions, such as nonprofits or religious organizations
  5. Suspicious banking activity such as large withdrawals
  6. A new will being made when the elder is not mentally competent
  7. The elder adding caregivers’ names to property or bank accounts
  8. The elder transferring property to a new girlfriend or boyfriend
  9. Change of power of attorney made by an elder who lacks mental capacity
  10. Loans taken out against the home to fund investments or other costs

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