| Elder financial abuse has existed for as long as elders | | | | with all other remedies allowed. Now, attorneys are |
| have owned property and money. This article will | | | | more likely to accept such cases and devote the |
| discuss seven key elements to identify and combat | | | | time and energy needed to litigate. |
| elder financial abuse, and to recover what was | | | | To prove an EADACPA claim, it must be shown by |
| wrongfully taken. | | | | "clear and convincing" evidence that the defendant's |
| Key # 1: Age | | | | acts were done with "malice, oppression, fraud or |
| In California, an "elder" is defined as someone 65 | | | | recklessness". This is a much higher burden of proof |
| years of age or older. Age is an important factor | | | | than the standard of a "preponderance of the |
| because an "elder" is entitled to the remedies | | | | evidence" that is required in most other civil cases. |
| provided under the Elder Abuse and Dependent Adult | | | | However, a successful EADACPA claim will allow |
| Civil Protection Act, known as "EADACPA". | | | | recovery of special damages, general damages, |
| Key # 2: Mental Capacity | | | | punitive damages, attorney fees and costs, as well |
| Probate Code 811 provides a list of mental categories | | | | as the potential for "enhanced remedies". |
| that a psychologist or medical doctor can use to | | | | Key 5: Common types of elder financial abuse |
| assess an elder's mental capacity. When you read this | | | | Elder abuse occurs in a myriad of ways. Somewhat |
| statute, you might think that you'd need a Master's | | | | ironically, the majority of perpetrators are the ones |
| Degree in order to pass this "test". It covers such | | | | to whom the elder often devoted his/her life to: their |
| assessments as logical thinking, analytical ability, and | | | | children. |
| memory. However, a poor score in any one category | | | | Financial powers of attorney are a classic form of |
| does not warrant a determination that the elder lacks | | | | financial abuse. Given this document, the "agent" can |
| sufficient mental capacity. | | | | perform any financial transaction that the elder could, |
| In elder financial abuse cases, the mental capacity | | | | including mortgaging or selling the home and |
| assessment must be focused in the context of a | | | | withdrawing money from bank accounts. Placed into |
| particular transaction, and the conclusion will be | | | | the wrong hands, this document can become a |
| whether or not the elder possessed mental capacity | | | | "license to steal". |
| at the time of the transaction. | | | | Often, the elder signed the power of attorney many |
| For example, the question may be whether an elder | | | | years ago and has forgotten all about it. Or, the bad |
| had the mental capacity to sign a grant deed that | | | | son or daughter simply tricks their aging parent into |
| transferred title of a home to a caregiver. In | | | | signing. |
| performing the mental capacity evaluation, the | | | | A typical scenario involves a son or daughter who |
| psychologist or psychiatrist will make this | | | | uses manipulation and trickery to have title to the |
| determination based upon the elder's performance | | | | elder's home transferred. Often the home is owned |
| when the assessment is given. | | | | outright, and the perpetrator can easily obtain an |
| The bottom line purpose of the test: At the time the | | | | equity line of credit or other type of loan. |
| elder signed the Grant Deed, did s/he have the | | | | Unfortunately, these loans are often defaulted on for |
| mental capacity to understand that title to the home | | | | non-payment, leaving the elder to face eviction |
| was being transferred to the caregiver? | | | | proceedings -- totally unaware of how they became |
| This can be a challenging task for the evaluator, | | | | a victim. |
| particularly when the Grant Deed was signed three | | | | Key # 6: Civil and Criminal Litigation |
| years or more prior to the mental evaluation. It then | | | | Fortunately, there are remedies available. Many of |
| becomes a forensic evaluation, and the mental | | | | these cases are both civil and criminal in nature. |
| capacity issue may have to be determined by a | | | | Penal Code Section 368 is very similar to the |
| review of the elder's medical and/or psychological | | | | EADACPA statute, and can be prosecuted by the |
| records during the months leading up to the date the | | | | District Attorney's Office -- if they have the |
| Grant Deed was signed. Sometimes, no such records | | | | resources and personnel. California mandates that |
| exist and the evidence of mental incapacity must be | | | | each county have an elder abuse prosecution unit; |
| obtained from other sources. | | | | however, some counties lack sufficient funds and can |
| Key # 3: Identifying Elder Financial Abuse -- Undue | | | | spare only one deputy district attorney to handle all |
| Influence | | | | of the cases. They are often overwhelmed and |
| First of all, not all "influence" is undue. A wife of 40 | | | | unable to promptly respond. |
| years certainly "influences" her husband, and vice | | | | Civilly, these cases can be brought under the |
| versa. There is nothing inherently wrong with this | | | | EDACPA statues. If the client is 70+ years old, then |
| type of influence. | | | | a motion for preferential setting can be brought that |
| The type of influence that is "undue" takes place | | | | requests a quick trial date. If granted, then a trial |
| when one person takes advantage of another's | | | | must take place within 120 days. |
| weaker state of mind. There are statutes and | | | | Key # 7: Recovery of property & money |
| numerous cases that provide both definitions and | | | | Acting quickly is critical. Action must be taken |
| factual backgrounds to illustrate various scenarios | | | | immediately to stop the perpetrator from stealing |
| when such undue influence was used to manipulate | | | | any more property or money. |
| and coerce an elder into unknowingly parting with | | | | If title to a home has been transferred, then a Notice |
| their property and money. | | | | of Pending Real Property Claim (lis pendens) must be |
| Key # 4: Combating Elder Financial Abuse -- | | | | recorded with the County Recorder's Office where |
| EADACPA | | | | the real property is located. Remember, this is a |
| The EADACPA statutes, under the Welfare & | | | | notice of a "pending claim". The "pending claim" is the |
| Institutions Code, provide nearly every remedy under | | | | civil lawsuit that has been filed with the Court. There |
| the sun. Interestingly, EADACPA was enacted to | | | | must be a pending court case (challenging ownership |
| provide an incentive for lawyers to take on elder | | | | to the property) before a lis pendens can be |
| abuse cases. Before EADACPA, attorneys were | | | | recorded. |
| reluctant to accept such cases because their clients | | | | If the bad guy is making withdrawals from bank |
| were often of ill-health and would sometimes die | | | | accounts, then the bank must immediately be |
| before their case went to trial. The right to recover | | | | notified. Remember: all bank employees are now |
| "general damages" for pain and suffering would also | | | | "mandated reporters" and must alert law |
| die. A lawyer may have worked hundreds of hours | | | | enforcement when elder financial abuse is reasonably |
| on the case, and then "lose" because his client passed | | | | suspected. |
| away before trial. | | | | Understanding these seven key elements will assist |
| However, under EADACPA, the case continues even | | | | elders, their family and loved ones to prevent financial |
| if the elder passes away during litigation. The elder's | | | | abuse and to take quick action to recover property |
| family (successor in interest) is entitled to | | | | and money when such abuse has already occurred. |
| post-mortem recovery for pain and suffering, along | | | | |