• Bob Benjy, Esq.

Elder Abuse Restraining Orders: Protecting Senior Citizens from Neglect, Abuse, and Financial Fraud

As California's baby boomers continue to climb the age ladder, violence, harassment, harm, threats against and theft of property of senior citizens continues to become an ever increasing reality. Our seniors are a valuable resource that deserve and need special legal protections. Oftentimes such protections are necessary even against adult children vying to take advantage or get ahead of other siblings, step parents or family members.

Senior citizens (individuals 65 years of age or older) are given special protections and status under California law. This is because our legislators have concluded that senior citizens are vulnerable to being taken advantage of, abused (physically or mentally), abandoned, isolated and/or defrauded. When this occurs, the consequences can be devastating for the victimized senior and his or her family. In some cases, it may even result in premature death (e.g., when isolation and food and drug deprivation or abandonment results in serious physical injury, leading to death).


Consequently, California law provides for a specially designed, expedited legal procedure pursuant to which a senior (or certain authorized persons acting on the senior's behalf) can secure issuance of a court restraining order protecting the victim from those individuals that are abusing, neglecting, isolating or defrauding them. The tool is known as an Elder or Dependent Adult Abuse Restraining Order ("EARO"). California Welfare & Institutions Code Section 15657.03 (the "Code Section") provides the procedural mechanism for obtaining an EARO.


EARO's are not dissimilar to Civil Harassment Restraining Orders (which are separately governed by California Code of Civil Procedure Section 527.6). Except that EARO's are more tailored for the specific scenario of protecting against elder abuse.


The types of harms that may be restrained via an EARO include physical abuse, financial abuse (theft, duress-related fraud or similar), mental or emotional abuse, neglect, abandonment or abduction, isolation and/or deprivation by a caretaker of goods or services necessary to avoid harm or suffering to or by the senior.


Financial abuse of an elder adult is defined broadly in California Welfare & Institutions Code Section 15610.30(a) and is broad enough to include all manner of financial fraud, theft, and other unauthorized or improper appropriation, taking or stealing of real or personal property (e.g., title to real estate, money, jewelry, etc.). This includes conduct to take property of the elder by means of "undue influence". For example, if a caretaker has tricked a person 65+ years of age into signing away his or her title to real property or has added him or herself onto the bank account of a senior citizen and is flushing away cash for unauthorized use, that caretaker is a ripe target for a EARO. (Separately, the abusive person has opened him or herself up to a lawsuit for financial elder abuse, exposing him or herself to punitive damages and a potential attorney's fees award to boot (not to mention for fraud and deceit, conversion, common counts, etc.).)


A victimized senior may apply for an EARO. In addition to the senior, his or her attorney-in-fact under a power of attorney (assuming that POA gives broad authority to take legal action to protect the senior's interests), a duly appointed conservator or trustee with power to act for the senior, and a person appointed as the senior's guardian ad litem may also apply for an EARO.


If granted, an EARO (sometimes referred to as a "protective order") may enjoin (i.e., legally prohibit) certain conduct by the enjoined person (i.e, the culprit) as against the senior citizen that has been abused or harmed. This could include a prohibition against abuse, intimidation, molestation, attack, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, etc. The issued injunction can, on a showing of good cause, also protect non-petitioners, including non-senior family members or members of the senior-petitioner's household.


There is no filing fee for applying and a sheriff's deputy can serve process papers on the accused abusive person against whom the protective order is sought, free of charge. Alternatively, the petitioning party may pay to have the papers served on the adverse accused party via private process server.


In order to win issuance of a restraining order, the petitioning party must demonstrate to the satisfaction of the court, by way of properly drafted, sworn declaration(s), reasonable proof of a past act (or acts) by the alleged culprit of abuse against the senior.


The legal standard of proof applicable to issuance of an EARO restraining order is the usual civil standard: preponderance of the evidence (51% or higher likelihood of accuracy). See Bookout v. Nielsen (2007) 155 CA4th 1131 (protective orders issued under the Elder Abuse and Dependent Adult Civil Protection Act require proof by a preponderance of the evidence of a past act or acts of elder abuse); see also Gdowski v Gdowski (2009) 175 CA4th 128 (a protective order may be issued on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated).

COMPARISON TO CIVIL HARASSMENT RESTRAINING ORDERS:


Unlike an EARO restraining order issued under the Code Section, a civil harassment restraining order requires a hightened standard of proof (clear and convincing evidence, which is higher than "preponderance of the evidence" and lower than the criminal standard of "beyond a reasonable doubt"). Moreover, civil harassment restraining orders may only be issued if the court finds a likelihood of future harassment. See Cal. Code Civ. Proc. S. 527.6(i); see also Russell v. Douvan (2003) 112 Cal.App.4th 399, 401-404 (holding that, within the context of a civil harassment restraining order, trial court erred in issuing order based on a single act of violence without finding threat of future harm). To summarize, California law makes it easier to obtain injunctive relief on behalf of abused or neglected senior citizens than non-elder harassment victims.

If sufficient evidence is proffered by or on the senior's behalf to the court, injunctive relief may be awarded in favor of the senior for up to five (5) years (subject to renewal and extension by motion), but only after notice to the accused person and a hearing (mini evidentiary trial), with an opportunity for the accused person to respond in writing and present relevant evidence to oppose the requested relief.


The hearing on the petition is like a mini-trial. Evidence may be submitted to the court in the form of images, written under-oath declarations, medical or police reports, (potentially) live witness testimony, damaged property, bank records, threatening written messages or correspondence, etc.


The prevailing party, whether the senior making the accusations or the other accused party against whom the restraining order is being sought, may (in the discretion of the court) win a money award against the losing party in the total sum of reasonable attorney's fees incurred to prevail plus costs, if any.


If the senior prevails and a restraining order is issued, the restrained party (i.e., the culprit) shall be ordered to no longer own, possess, purchase, receive any firearm or ammunition during the life of the injunction. Failure to comply is a criminal offense. In fact, any violation of the restraining order (e.g., getting closer to the senior than allowed under the issued protective order) constitutes a crime, punishable under the penal code.


In some cases, if the court issues an EARO the culprit may be ordered by the Court, after notice and a hearing, order the culprit to participate in mandatory clinical counseling or anger management courses.


While it is not necessary for a petitioning senior to be represented by legal counsel, it is wise to do so. Among other things, competent and experienced legal counsel will know the ins and outs of the subject statute and applicable case law and will also ensure that the papers are properly and timely served on the accused party, to avoid any problems with issuance of the restraining order.

BENJY LAW CORPORATION represents senior citizens and their families or household members seeking issuance of EARO-related injunctive relief.


If you are a senior suffering abuse or harassment, undue influence, neglect, theft/fraud or other abusive behavior (or represent or related to such a person) you are encouraged and welcome to call and make an appointment for a free 45 minute legal consultation with Top Rated, Super Lawer Bob Benjy (AV Rated, Preeminent). Call now: (310) 203-2650 or email us at info@benjylaw.com .



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