Elder Abuse – the Legal Remedies & Process
The Welfare & Institutions Code and Penal Code §368 prohibit and punish physical abuse, physical neglect, or financial abuse of an elder (over 65 years) or a dependent adult (18-64 years of age). This means that there are both civil litigation and criminal penalties for elder abuse.
Sometimes such allegations are the result of misunderstandings and lack of “sunshine”. The prompt use of a Geriatric Care Manager can often help to prevent misunderstandings and eliminate family disharmony, by resolving disputes before they grow into litigation, triggering the various legal remedies for elder abuse. Often with a care plan and appropriate support services, the elder can continue to live at home in dignity and comfort. The HEALTH CARE AGENT can ensure that Care is provided, in the least restrictive environment.
The financial legal remedies are temporary or permanent, depending upon the circumstances. When a TEMPORARY CONSERVATOR OF ESTATE gets all of the financial and insurance information together, the Court is able to looking at the Big Picture. Informed decisions can be made about the care plan, to ensure that the elder’s funds will be used for the elder’s care, and without abuse or neglect.
When investments need ongoing supervision [such as a stock portfolio (which should not be sold without know the Long-Term Capital Gains Tax consequences)], a GENERAL CONSERVATOR OF ESTATE may be needed to oversee investments. That legal position (which has Court supervision) may be needed to chase funds taken from the elder.
Other times, a GUARDIAN AD LITEM may be appointed to represent the elder’s Best Interest as Plaintiff in that one and only matter. If everyone is willing to rescind the transaction, to restore the property to the elder, no litigation may need to be filed.
If the elder has a Revocable Living Trust, the elder’s Successor TRUSTEE undertakes the ongoing financial management without the Court supervision of Conservatorship, but should s/he?
If the Trustee and/or Health Care Agent are NOT providing proper care, what happens? The Trust can be put under Court supervision. Then the Trustee must file Accounts with the Probate Court. Notice of the Accounts is sent to all known Trust beneficiaries and all intestate heirs.
Sometimes informal, pre-filing mediation can resolve a dispute, or develop the Care Plan, so that a Court hearing is necessary. This avenue of a contested Conservatorship appointment can be an expensive process: the Conservatee is entitled to a Jury Trial, which may be requested. After hearing the evidence from all parties involved, the Judge (or the Jury) decides whether (or not) a Conservator should be appointed.
Each situation is unique: so address and resolve as quickly as possible any abuse situation:
___Call APS/Adult Protective Services to have social services offered to the Elder;
___make a POLICE REPORT to start an investigation;
___call a GERIATRIC CARE MANAGER to design a Care Plan.