As we Americans age, our physical and, to a lesser extent, our mental functioning decreases making us vulnerable to abuse. Impaired judgment resulting from atrophy of the brain tissue far short of mental illness, predisposes elders to vulnerability. In spite of legislation, regularly and frequently amended, abuse continues unabated. Tragically, these abuses are physical, emotional, and financial. Perpetrators are not limited to low-paying nursing homes or other healthcare facilities, or home repair vultures, or greedy family members, but even include large, irresponsible corporations which target the elderly with financial schemes improperly targeting elders to simply improve their bottom lines.

Legislation

Legal protection and recourse is contained in the Elder Abuse and Dependent Adult Civil Protection Act, California Welfare and Institutions Code §15600, et seq. This law recognizes that the elderly are at risk of abuse, neglect, and abandonment. It recognizes that criminal prosecutions are few and civil cases even fewer for lack of incentive. As a result, this law encourages interested persons to engage attorneys to take up an abused, elderly person’s claim.

Financial Abuse

Financial abuse occurs when a person or entity takes, secrets, obtains, or retains personal or real property of a person 65 years or older for a wrongful use or to defraud. A person is presumed to have taken or retained the property if he knew or should have known that the taking is or likely to be harmful to the elder. It does not matter whether the property is held directly by the elder or by his representative. [Welfare and Institutions Code §15610.30.]1

Fiduciary Relationship

There are two categories of fiduciary relationship. One arises from the relationship of the parties such as principal and agent, attorney and client, and trustee and beneficiary. The second arises from the facts and is sometimes referred to as a “confidential relationship.” This relationship depends on the relative strength or superior knowledge of one party over the other who is reliant, as with an elder or dependent adult, and the other party’s financial or health services.

Regardless of how the relationship arises, the legal consequences are the same. The fiduciary owes a duty of the utmost good faith and strict standard of fidelity. If there is a failure of this duty, there are a number of remedies.

Remedies

Remedies for physical, emotional, or financial abuse of an elder are numerous. They include the following:

All remedies permitted under existing law
Punitive damages for reckless conduct; if willfulness is not alleged, these damages may be covered by insurance under the Act
Damages against healthcare providers are per defendant, not per case
Attachment to prevent a perpetrator from absconding with liquid or moveable assets
Reasonable attorneys’ fees and costs which are unilateral, not reciprocal
Conservators’ time
Elder pain and suffering are recoverable after death by the representative of the decedent’s estate; the limitations of California Code of Civil Procedure §377.24 do not apply
The Elder Abuse Protection Act is clearly skewed in favor of the elder, based on legislative findings of elder vulnerability. [Welfare and Institutions Code §15600. The Code section is slightly different – Welfare and Institutions Code §15657.]

As a result, financial institutions, health care providers, as well as friends and family of the elderly must be acutely aware of their heightened duties owed to elders or dependent adults.