Walnut Creek Elder Abuse Attorney
Elder Abuse is an unfortunate reality that I come across all too often as an Elder Law attorney in Contra Costa and Alameda Counties.
Elder Abuse typically takes place when there is a family member over the age of 65 who is unable to care for themselves, either because of physical or mental decline. Elder Abuse, including elder financial abuse, often plays a part in a number of Estate Matters, including Conservatorships, Probates, and Trust Litigations.
Elder Abuse can occur out of malice or neglect, and includes physical abuse, isolation, financial abuse, emotional abuse, malnourishment, abandonment, and any other actions or in actions that cause harm to an elder.
Who can bring an Elder Abuse Lawsuit?
Anyone who believes elder abuse is occurring can bring a lawsuit. Kinds of elder abuse can include:
Financial Elder Abuse
- Lack of Medical Care/Over-Medication
An experienced Elder Abuse attorney can guide you as to your best course of action. In Probate Court, we seek to protect the elder individual and seek financial damages. The criminal courts handle prosecution of elder abuse as a criminal offense. Many (but not all) Elder Abuse cases that fall under the Probate courts involve financial elder abuse.
Financial Elder Abuse and Undue Influence
Undue Influence, as defined by California Probate law, is influence exerted over someone that is "excessive" and either causes an action to be taken, or prevents an action from being taken. Undue influence typically applies to influence over an elder, or person over the age of 65.
Typically, someone close to an elder exerts pressure upon the elder to take or refrain from an action that financially benefits them. For example, an adult child convinces her elderly mother, who has recently been diagnosed with dementia, to change her will and exclude the child's siblings.
Allegations of undue influence can be both difficult to prove and difficult to disprove. One way attorneys deal with this is to "flip the burden of proof" to the other party. California law provides guidelines on how to flip the burden of proof in cases involving undue influence.
Financial Elder Abuse can occur when:
- Family/caregivers exercise inappropriate influence
- Family/caregivers take advantage of mental capacity
- Trustees misuse or steal funds from a trust
- Undue influence is applied to change a trust or will
- Theft of personal belongings occurs
- Family/caregiver/friend steals or uses bank funds
- Inappropriate changes made to accounts or property
How is Financial Elder Abuse defined under California Law?
California has specific laws in place to protect elderly persons. Elder financial abuse is defined by the State as when a person or entity does any of the following:
- Takes, secretes, appropriates, obtains, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both.
- Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use or with intent to defraud, or both.
- Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of and by undue influence.
Indicators that Financial Elder Abuse may be occurring:
- Refusal to spend money on an Elder's care by a caregiver
- Long lost relatives or friends, or new acquaintances influencing an elder
- Expensive gifts given by elder
- Contributions to newly formed institutions, such as nonprofits or religious organizations
- Suspicious banking activity such as large withdrawals
- A new will being made when the elder is not mentally competent
- The elder adding caregivers' names to property or bank accounts
- The elder transferring property to a new girlfriend or boyfriend
- Change of power of attorney made by an elder who lacks mental capacity
- Loans taken out against the home to fund investments or other costs