Financial Abuse of Dependant Adults

In California, like in many other states, the legislature enacted elder abuse laws. These laws are designed to protect people over 65 years old from a variety of abusive situations including being subjected to physical abuse, isolation, abandonment and financial abuse. Many of these cases are filed against nursing homes for neglect in the care that is given to their elderly patients. However, there are situations where family members can be liable for elder abuse or abuse of a dependant adult.

Like the elder abuse laws, the legislature enacted laws to protect dependant adults. Dependant adults are persons between the ages of 18 and 64 years who have physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights including persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.

As a Los Angeles business attorney I recently represented one of two brothers in a dispute over real property. One brother was a successful business attorney while the other brother qualified as a dependant adult. Title to the property was in both of their names following the death of their parents but the lawyer brother had a deed recorded putting the title in his own name to the exclusion of his brother and then went to a bank and borrowed against the property.

After the lawyer brother filed suit to partition the property, we filed a cross complaint and added the bank on a claim they assisted in the financial abuse of a dependant adult.

Welfare & Institutions Code section 15610.30 defines financial abuse of an elder or dependent adult when a person or entity takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both or assists in that conduct. A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith. A person shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the dependent adult or to his or her representative.

Welfare and Institutions Code section 15657.5 also provides that where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs. The term costs includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

In California the attorney provision flows one way, meaning a plaintiff is entitled to attorney fees if they prevail on an elder abuse or abuse of a dependant adult claim, but if they do not prevail they are not subject to attorney fees. The reason for this is that the legislature wanted lawyers to get involved in cases of elder abuse and as an extra incentive to have lawyers take these cases added this financial incentive.

If you or your loved one is a victim of elder abuse including financial abuse you should contact an attorney in your area about seeking legal representation.

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