Everything About Elder Abuse as Personal Injury Claim
Updated: Apr 26
Personal Injury claims from elderly abuse and neglect.
Abuse of the elderly can take several forms. Physical violence, such as when a nursing home employee slaps or moves a resident, is one example. It may also be a matter of money, such as when an unscrupulous stockbroker tricks an elderly client into a risky investment. In certain situations, such as excessive emotional abuse or a caregiver's repeated inability to meet an elder's basic physical needs, it can be subtle and difficult to identify. California's elder abuse laws protect seniors from the damage of any manner and provide for legal redress in the event of abuse.
As the number of people over the age of 65 continues to increase, these concerns have been sent into the spotlight in recent years. This issue, however, is not new; only the level of attention given to it and the urgency with which it must be addressed has changed. Although there is still much work to be done to ensure that none of our senior citizens are again subjected to violence, several states have now implemented robust regulatory mechanisms to identify and prosecute perpetrators.
Federal Legislation on Elder Violence
The Elder Justice Act was the first federal law passed to allow a particular source of federal funds to combat elder abuse, neglect, and exploitation. The Act was part of the Patient Protection and Affordable Care Act (PPACA) on March 23, 2010.
Congress passed the Older Americans Act in 1965 in response to lawmakers' fears about a shortage of community social care for the elderly. The Older Americans Act was reauthorized in 2016, with provisions to protect disabled elders by improving the Long-Term Care Ombudsman program and subsequent elder abuse screening and prevention efforts.
California's Regulations on Elder Violence
California was one of the first states in the country to pass robust anti-abuse laws. The Elder Abuse and Dependent Adult Civil Rights Act of 1982 (the "Act") creates a civil cause of action for a wide variety of actions generally known as "elder abuse," such as physical abuse, negligence, and financial abuse, and requires certain persons to report alleged cases of elder abuse to the appropriate authorities. In the intervening years, numerous amendments have broadened its reach. The Legislature reported three general reasons for enacting the law in its legislative findings:
Adults who are elderly, infirm, or dependent are a vulnerable group.
Criminal prosecutions against those who exploit these people are uncommon, and
Owing to difficulties with evidence, court delays, and a lack of incentives to prosecute these cases, civil actions for elder abuse are also uncommon.
As a result, the Act's primary purpose was to "foster and encourage community programs for the economic, social, and personal wellbeing of its residents in order to protect those mentioned in this section."
The State of California's on Physical Elder Abuse
Physical Abuse as Described by California's Elder Abuse Laws
Although the word "Physical Elder Abuse" is frequently used as a catch-all for any action that causes physical distress to an elderly person, the Act describes it very clearly. Physical violence, according to the Act, includes all of the following:
Attack/assault on an individual
Assault with a lethal weapon or force likely to inflict serious bodily harm
Physical restriction that is unnecessary
Deprivation of food or water for a prolonged period of time
Rape in a public place
Penetration of the sexual organs
Acts that are lewd or lascivious
Physical elder abuse is distinct from negligence, which is described as "the irresponsible failure of any individual having the care or custody of an elder or dependent adult to exercise the degree of care that a responsible person in that role would exercise."
Neglect can manifest itself in a variety of ways, including the following:
Failure to assist in the preservation of personal hygiene
Assistance in the provision of food, clothes, or shelter is not offered.
Inability to provide medical treatment
Failure to safeguard against health and safety threats
Failure to avoid dehydration and malnutrition
There is also a blurring of the lines between what constitutes violence and what constitutes negligence, which can cause confusion. Please contact a California elder abuse lawyer if you have any concerns about the distinction between elder abuse and elder neglect.
Financial Abuse of the Elderly
Financial abuse of the elderly and dependent adults is a long-standing and increasing issue in this state. California now has over 5 million elders (those aged 65 and up), a figure that is projected to steadily increase as the population ages.
With the population aging, it's more important than ever to understand the laws that protect the elderly and dependent adults. The California Legislature passed the Elder Abuse and Dependent Adult Security Act in response to the fact that "elders and dependent adults may be subjected to abuse, neglect, or abandonment" and that "this state has a duty to protect such individuals." [California Welf. & Insurance Code 15600(a)]
One of the Act's aims is to "pay particular attention to the needs and concerns of elderly people, acknowledging that they make up a large and recognizable segment of the population and are more vulnerable to violence, neglect, and abandonment."
The Legislature established a large and effective law with this Act, which "allow[s] concerned parties to hire lawyers to take up the case of neglected elderly persons and dependent adults." [15600(j) of the Welf. & Ins. Code.] Elderly and dependent adults are not only vulnerable to physical violence and neglect, but they are often subjected to financial assault.
What is the Financial Abuse of the Elderly?
When an individual takes, secretes, appropriates, obtains, or preserves the real or personal property of an elder or dependent adult for wrongful use or with the intent to defraud, or both, it is called financial exploitation of an elder or dependent adult. 15610.30(a)(1) (Welf. & Ins. Code.) If an individual "assists" another in the above, he or she is equally liable for financial elder abuse. 15610.30(a)(2) (Welf. & Ins. Code).
The first two elements (taking, concealing, appropriating, receiving, or holding real or personal property) are clear. A caregiver who forges a check from the elder's account is a common example.
The third component is also simple to identify. Any person living in California who is 65 years old or older is considered a "elder." 15610.27 (Welf. & Ins. Code.) This is any person living in California between the ages of 18 and 64 has physical or mental limitations that limit his or her ability to do normal activities to protect their rights. This includes those who have physical or developmental disabilities or whose physical or mental abilities have deteriorated with age. Regardless of whether the person lives independently, is considered a "dependent adult." 15610.23(a) (Welf. & Ins. Code).
Either of two approaches for demonstrating wrongful use and/or intent to defraud may be used. By meeting the standard elements of a fraud cause of action and pleading fraud with particularity, a plaintiff may seek to prove that the defendant behaved "with intent to defraud." It's a lot easier to prove "wrongful use." A plaintiff can establish that a defendant took property "for a wrongful use" by proving that the defendant knew or should have known that his or her actions were likely to injure the elder or dependent adult.
If a person takes, hides, appropriates, obtains, or keeps real or personal property of an elder or dependent adult, or assists in doing so, he or she is guilty of financial elder abuse. Excessive persuasion that overcomes a person's free will to cause them to act or refrain from acting, resulting in inequity, is known as "undue control." 15610.70(a) (Welf. & Ins. Code).
When deciding if anyone has used undue power, a variety of considerations are taken into consideration. The victim's vulnerability, as well as whether the influencer was aware of or should have been aware of the suspected victim's vulnerability
Find the following examples:
Impaired mental ability
Isolation or reliance
The apparent authority of the influencer, such as:
His or her fiduciary responsibilities
part of the family
Provider of medical services
Professional in the field of medicine
Advisor on spiritual matters
Expertise or other qualifications
The abusive acts of the influencer, which may include:
Controlling life's necessities
Interactions between the victim and others
Is it more important to have access to information
Coercion, manipulation, or use of affection
Changes an elder's personal or property rights
Swearing elders to secrecy is used
Financial Elder Abuse Claims: Other Relevant Things
When a defendant is found responsible for financial elder abuse by a preponderance of the facts, "the court shall grant to the plaintiff fair attorney's fees and expenses in addition to compensatory damages and any other relief otherwise given by law." 15657 (Welf. & Ins. Code). 5(a) Attorneys' fees are paid only by the complainant. As a result, the Elder Abuse and Dependent Adult Protection Act's expansive language, as well as the payment of your hired elder abuse attorney's fees and expenses to claimants, make it an indispensable tool for elder and dependent adult rights compliance.
Furthermore, if the defendant acted with recklessness, intent, deception, or injustice, damages for pain and suffering can be levied after the victim's death if a strong and compelling proof is provided. (Normally, such losses are not recoverable for decedent-victims.) [15657.5(b) of the Welf. & Ins. Code.] This clause only extends to deceased victims. Compensatory damages, lawyers' fees, and expenses are available to living victims of financial elder abuse.
Section 3294 of the California Civil Code allows for the recovery of punitive damages. [15657.5(d) of the Welf. & Ins. Code.] In cases of financial elder violence, the Legislature has also allowed the use of writs of attachment. 15657.01 (Welf. & Ins. Code) An "attachment" is a pre-judgment provisional remedy that allows a creditor to seize the defendant's properties in order to obtain a judgment if the plaintiff is eventually awarded the judgment. Certain significant limits on the right to attach have been relaxed in financial elder abuse cases, allowing for the use of writs of attachment on all property in cases where damages are sought.
Typical Financial Elder Abuse Patterns
There are many common fact trends that suggest financial elder abuse. Family theft or overreach, caregiver theft or overreach, lawyer or accountant fraud, and banker and teller misconduct are all examples of these.
The following are some common "red flags" to watch out for, but this list is by no means complete:
Signatures on checks that aren't the same as the elder's
When the elder is physically incapable of writing, he or she signs legal papers
The elder's lavish presents