Financial elder abuse is a form of mistreatment that involves the illegal or improper use of an elderly person’s financial resources. In California, the prevalence of financial elder abuse poses a significant threat to the well-being and security of our senior population, making it imperative to address this issue head-on.
This blog aims to provide a clear understanding of what constitutes financial elder abuse, highlight the importance of recognizing and addressing it, and offer practical remedies and legal actions available in California to protect our seniors from such exploitation.
What Constitutes Financial Elder Abuse?
Financial elder abuse encompasses a variety of actions that lead to the improper or illegal use of an elderly person’s financial resources. Common types include:
- Theft: Directly taking money or property from the elder without their consent.
- Fraud: Deceiving an elder through scams or fraudulent schemes to gain access to their funds.
- Unauthorized Use of Assets: Misusing or misappropriating an elder’s bank accounts, credit cards, or other financial resources.
- Coercion: Forcing or manipulating an elder to sign financial documents, such as checks, wills, or contracts.
- Identity Theft: Stealing personal information to gain access to financial accounts or create new ones in the elder’s name.
Financial exploitation can take many forms, including:
- Telemarketing Scams: Persuading an elder to provide money or personal information over the phone under false pretenses.
- Investment Fraud: Convincing an elder to invest in bogus or high-risk schemes that offer no real return.
- Power of Attorney Abuse: Misusing the authority granted by a power of attorney to benefit oneself rather than the elder.
- Real Estate Scams: Deceiving an elder into selling property at a loss or signing over the title without understanding the consequences.
Legal Framework for Financial Elder Abuse in California
The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is a comprehensive legal statute designed to protect elderly and dependent adults from various forms of abuse, including financial exploitation. Enacted to address the growing issue of elder abuse, the Act provides a legal framework for identifying, reporting, and remedying instances of abuse, ensuring that victims receive the protection and justice they deserve.
Under EADACPA, financial elder abuse is explicitly defined, and a range of legal protections are established to safeguard seniors. These protections include:
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- Civil Remedies: Victims of financial elder abuse can file civil lawsuits to recover lost assets and obtain compensation for damages. Courts may also award punitive damages and attorney’s fees.
- Criminal Penalties: Perpetrators of financial elder abuse may face criminal charges, leading to fines, restitution orders, and imprisonment. The severity of penalties depends on the nature and extent of the abuse.
- Protective Orders: Courts can issue restraining orders to prevent abusers from contacting or exploiting the victim further.
Mandatory Reporting Requirements
California law mandates that certain professionals, known as “mandated reporters,” must report suspected cases of elder abuse. These individuals include:
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- Healthcare providers (doctors, nurses, therapists)
- Social workers and case managers
- Law enforcement personnel
- Financial institution employees
- Care facility staff
Procedures for Reporting Financial Elder Abuse
Mandated reporters must follow specific procedures when reporting suspected of this type of abuse:
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- Immediate Reporting: If a mandated reporter observes, suspects, or has knowledge of financial abuse, they must report it immediately to Adult Protective Services (APS) or local law enforcement.
- Written Report: A written report must be submitted within two working days of the initial report. This report should detail the suspected abuse, including the victim’s information and the circumstances of the suspected abuse.
- Confidentiality: Reports are kept confidential, and reporters are protected from retaliation under California law.
Remedies and Legal Actions for Financial Elder Abuse
Civil Remedies
Restitution and Compensation: Victims can seek restitution and compensation for their losses. Restitution aims to restore the victim’s financial position by returning stolen assets or compensating for financial damages caused by the abuse. Compensation may cover a wide range of financial harms, including lost income, medical expenses, and emotional distress.
Civil Lawsuits and Litigation: Filing a civil lawsuit is another powerful remedy for victims of financial elder abuse. Victims or their representatives can sue the abuser for monetary damages and other relief. Courts can award compensatory damages, punitive damages, and attorney’s fees to the victim. Civil litigation also serves as a deterrent to potential abusers by highlighting the serious consequences of financial exploitation.
Criminal Remedies
Criminal Prosecution and Penalties: Financial elder abuse is a criminal offense in California, and perpetrators can face severe legal consequences. Criminal prosecution involves law enforcement investigating the abuse, gathering evidence, and prosecuting the abuser in court. Penalties for financial elder abuse can include fines, restitution, and imprisonment, depending on the severity of the crime.
Protective Orders and Restraining Orders: Courts can issue protective orders and restraining orders to prevent further abuse. These legal orders can prohibit the abuser from contacting or approaching the victim and may include provisions to protect the victim’s assets. Violating a protective order is a criminal offense and can result in additional legal penalties for the abuser.
Conservatorships and Guardianships
Conservatorships provide a legal mechanism to protect seniors from financial abuse by appointing a responsible person (the conservator) to manage the financial affairs of the elder (the conservatee). This arrangement ensures that the elder’s finances are handled prudently and prevents abusers from accessing their assets. Conservatorships are particularly useful when the elder is unable to make sound financial decisions due to cognitive impairment or other vulnerabilities. For more information about Conservatorships, see our blog regarding conservatorships for elders.
How Your Attorney Can Help
An estate planning attorney plays a crucial role in both preventing financial elder abuse and assisting victims in seeking justice. Prevention begins with comprehensive estate planning, which involves setting up legal instruments such as durable powers of attorney, trusts, and advanced healthcare directives. By carefully selecting trustworthy individuals to manage financial and healthcare decisions, an estate planning attorney ensures that seniors’ assets and well-being are protected from potential abusers.
In cases where financial elder abuse has already occurred, an estate planning attorney provides invaluable assistance in navigating the legal system to seek remedies and justice. They can help victims pursue civil litigation to recover lost assets and obtain compensation for damages. Furthermore, attorneys can work to secure protective orders to prevent further abuse and assist in criminal prosecutions by collaborating with law enforcement and prosecutors to build a strong case against the abuser.
For personalized legal advice and support with financial elder abuse cases, please contact the skilled attorneys at Lowthorp Richards today by dialing (805) 981-8555 or completing our convenient online contact form. Our legal practitioners are deeply rooted in the California Tri-Counties region, serving Ventura, Santa Barbara, and San Luis Obispo.