California Financial Elder Abuse
One of the most despicable and craven acts I can imagine is the act of taking advantage of a senior citizen. Seniors tend to be trusting, loyal, and often lonely. Unfortunately, this also can make them prey for the unscrupulous, the cheat and the con.
Thankfully, California has perhaps the strongest and most protective elder abuse laws of any state. In California, our financial elder abuse laws apply to anyone 65 or older regardless of whether the senior has any diminished physical or mental capacity.
What is Financial Elder Abuse?
California defines financial elder abuse as: when any person or entity “takes, secrets, appropriates, obtains or retains real or personal property of an elder for a wrongful use or with intent to defraud.” It also includes “assisting” in the taking of any property of someone 65 or older. “Wrongful use” is: if the person “knew or should have known that this conduct is likely to be harmful to the elder” Cal. Welfare & Institutions Code §15610.30.
This language is so broad that is applies to virtually every business transaction with someone who is 65 years or older.
Requirements to Prove Financial Elder Abuse in California:
The ONLY requirements are: 1) that the person is an “elder;” 2) s/he has been deprived of something/anything; and 3) the perpetrator “should have known” that their actions were “likely” to cause “harm.”
Attorney Fee Provision:
In addition to any actual economic damages, the elder is entitled to attorneys’ fees if s/he prevails. One of the strongest protections of the California financial elder abuse statutes provides that even if the action is proven to be frivolous, and even if the senior does not prevail, s/he is not required to pay the other side’s attorney’s fees.
Taken to an extreme, If a worker who is over 65 years of age can show that a $10 mistake was made in her paycheck, she can potentially recover thousands of dollars in attorneys’ fees with absolutely no risk of paying the other side’s fees. Now, realistically, neither I nor most attorneys would be willing to file a suit as frivolous as that example points out, but it does serve to demonstrate how potent these remedies are for protecting your loved ones.
California Financial Elder Abuse Law Trumps Contract Law:
The language of the California financial elder abuse statutes is so broad that the elder abuse statute even preempts basic contract law for agreements entered with elders. So if you have negotiated an attorneys’ fee clause in your contract with someone 65 or older, understand that it was probably just converted to a one-way clause benefitting only the elder because all they have to do is attach an financial elder abuse cause of action to their contract claim.
Your Loved One May Be Able to Receive Punitive Damages:
Under traditional contract law, the plaintiff is almost never permitted to recover punitive damages, absent a showing of fraud, which is a very difficult cause of action to prove. Normally, breach of contract damages are limited to either the party’s actual economic losses or the “benefit of the bargain” if they were deprived of an opportunity and can prove it probably would have panned out. Under the California financial elder abuse laws, however, if the senior plaintiff can demonstrate “by clear and convincing evidence” that the defendant was guilty of “recklessness, oppression, fraud or malice,” the plaintiff can also recover punitive damages. Cal. Welfare & Institutions Code §15657.5.
Free Financial Elder Abuse Consultation With An Attorney:
Most of the time, the senior or elder who has been victimized is not the person who calls my office; it’s almost always a relative or friend who is concerned. Please, if you believe that an elder senior citizen whom you love has been victimized, call me. Your consultation is free, and in most matters involving financial elder abuse, I can recover all of my fees from the person who victimized your loved one; the elder won’t need to pay me any fees at all.