ELDER FINANCIAL ABUSE - Seven Key Elements to Combat Financial Abuse
by George F. Dickerman
Elder financial abuse has existed for as long as elders have owned property and money. This article will discuss seven key elements to identify and combat elder financial abuse, and to recover what was wrongfully taken.
Key # 1: Age
In California, an "elder" is defined as someone 65 years of age or older. Age is an important factor because an "elder" is entitled to the remedies provided under the Elder Abuse and Dependent Adult Civil Protection Act, known as "EADACPA".
Key # 2: Mental Capacity
Probate Code 811 provides a list of mental categories that a psychologist or medical doctor can use to assess an elder's mental capacity. When you read this statute, you might think that you'd need a Master's Degree in order to pass this "test". It covers such assessments as logical thinking, analytical ability, and memory. However, a poor score in any one category does not warrant a determination that the elder lacks sufficient mental capacity.
In elder financial abuse cases, the mental capacity assessment must be focused in the context of a particular transaction, and the conclusion will be whether or not the elder possessed mental capacity at the time of the transaction.
Key # 3: Identifying Elder Financial Abuse -- Undue Influence
First of all, not all "influence" is undue. A wife of 40 years certainly "influences" her husband, and vice versa. There is nothing inherently wrong with this type of influence.
The type of influence that is "undue" takes place when one person takes advantage of another's weaker state of mind.
Key # 4: Combating Elder Financial Abuse -- EADACPA
The EADACPA statutes, under the Welfare & Institutions Code, provide nearly every remedy under the sun.
However, under EADACPA, the case continues even if the elder passes away during litigation. The elder's family (successor in interest) is entitled to post-mortem recovery for pain and suffering, along with all other remedies allowed.
To prove an EADACPA claim, it must be shown by "clear and convincing" evidence that the defendant's acts were done with "malice, oppression, fraud or recklessness".
However, a successful EADACPA claim will allow recovery of special damages, general damages, punitive damages, attorney fees and costs, as well as the potential for "enhanced remedies".
Key # 5: Common types of elder financial abuse
Elder abuse occurs in a myriad of ways. Somewhat ironically, the majority of perpetrators are the ones to whom the elder often devoted his/her life to: their children.
Financial powers of attorney are a classic form of financial abuse. Placed into the wrong hands, this document can become a "license to steal".
Often, the elder signed the power of attorney many years ago and has forgotten all about it. Or, the bad son or daughter simply tricks their aging parent into signing.
Key # 6: Civil and Criminal Litigation
Fortunately, there are remedies available. Many of these cases are both civil and criminal in nature.
Penal Code Section 368 is very similar to the EADACPA statute, and can be prosecuted by the District Attorney's Office -- if they have the resources and personnel. California mandates that each county have an elder abuse prosecution unit; They are often overwhelmed and unable to promptly respond.
Civilly, these cases can be brought under the EDACPA statues. If the client is 70+ years old, then a motion for preferential setting can be brought that requests a quick trial date. If granted, then a trial must take place within 120 days.
Key # 7: Recovery of property & money
Acting quickly is critical.
If the bad guy is making withdrawals from bank accounts, then the bank must immediately be notified. Remember: all bank employees are now "mandated reporters" and must alert law enforcement when elder financial abuse is reasonably suspected.
Understanding these seven key elements will assist elders, their family and loved ones to prevent financial abuse and to take quick action to recover property and money when such abuse has already occurred.
Abridged
SOURCE: Article Treasure
------------------------------------------------
Click for Updates, More Cases and Resources
No comments:
Post a Comment