This post, written with California law in mind, provides some of the basic information you need to know if you believe you or a loved one is the victim of financial elder abuse. The article is intentionally written in summary fashion so that a lay reader can get the gist of the matter. If you believe you have a claim, you are well advised to consult with a competent elder abuse attorney with experience in the arena of financial abuse.
Basic Definition of Financial Elder Abuse Under California Law
California has enacted specialized protections for individuals that are (a) residents of the state and (b) 65 or older at the time of the incident(s).
These laws allow victims of financial abuse to sue their oppressor(s) in court and recover monetary damages, including attorney's fees, court costs, and - in extreme circumstances - punitive damages (i.e., an additional award of money, on top of out of pocket damage totals, to punish the wrongdoer for reprehensible conduct).
Note that such claims are in addition to, not in lieu of, traditional claims for fraud, conversion, negligence, etc. A qualified plaintiff could and should assert separate claims for both traditional causes of action and those offered under California's specialized senior citizen protection statutes.
Defining Actionable Abuse
One benefit of suing under the specialized elder abuse laws is that the definition of financial elder abuse is intentionally quite broad. In lay terms, the definition would include any conduct resulting in the taking of any property of a resident California elder (including real estate, cash, belongings, etc.) - so long as that conduct was either for a wrongful use (i.e., where the alleged wrongdoer knew or should have known that his/her conduct was or could be harmful to the elder) or where the conduct was carried out with the intent to defraud the elder.
Separately, even if there is no "wrongful use" or "intent to defraud," a financial elder abuse may also exist where the conduct results in the taking of any property of an elder by means of undue influence (i.e., utilization of excessive persuasion that overcomes the free will of the elder and results in an unfair outcome).
Note that anyone assisting in (aiding or abetting) anyone else in implementing any form of financial elder abuse is equally liable to the victim as the primary wrongdoer and is exposed to civil liability.
Claims may be brought against both individuals and business entities but may only be asserted based on victimization of a qualifying individual (not a business owned by such individual).
Statute of Limitations
These claims typically feature a default statute of limitations with a four year reach back period. With a few minor exceptions, otherwise actionable misconduct occurring more than four years prior to the filing of a lawsuit in court are typically no longer actionable and may fail.
As with any legal claims, time is of the essence. The sooner you consult an attorney, the more likely you will be to achieve a favorable outcome to your case.
Examples of Actionable Financial Elder Abuse
Any of the following may suffice for purposes of asserting a successful claim:
misuse of a power of attorney to transfer a senior's money for an improper use (e.g., theft).
misuse of promissory notes, real property deeds, deeds of trust - including by way of forgery and undue influence.
"borrowing" or taking of an elder's assets/property without appropriate authorization or by way of undue influence.
mail, phone or other fraud - including by way of bogus sweepstakes scams.
home improvement or construction fraud.
insurance or investment broker fraud by way "churning" (i.e., unnecessary changes or purchases and sales to generate commissions in a manner that benefits the wrongdoer at the elder's expense.
Other Available Remedies to Protect Senior Citizens
These laws also authorize courts to issue prejudgment writs of attachment (i.e., a court-ordered lien, in favor of the senior, on the assets that were allegedly misappropriated - so as to preserve the assets while the case is pending). This is a powerful and valuable tool that allows the plaintiff(s) to take immediate action, very early in the litigation process, to prevent the wrongdoer(s) from disposing, transferring or liquidating the misappropriated assets while the case remains pending in court. In lay terms, this remedy can "freeze" assets, including by way or a recorded, court ordered lien on real estate, so that the defendant(s) can't sell or liquidate them and intentionally frustrate the winning plaintiff's post-judgment collection efforts.
Moreover, these laws authorize courts to issue protective orders (similar to a restraining order) to protect the senior from abuse, harassment, or contact by a wrongdoer or person that is accused of financial (or other variety) of elder abuse.
Contact Benjy Law Corporation for a Free Legal Consultation
Attorney Bobby Benjy, a member of the California State Bar since 2000, a recognized SuperLawyer and an AV Rated attorney, is experienced in representing victims of financial elder abuse and financial fraud. More importantly, he is recognized by his peers for his integrity and places his client's best interests at the top of his priority list.
Call Benjy Law Corporation to arrange for a free legal consultation with Mr. Benjy. Mr. Benjy can be reached at (310) 203-2650 or info@benjylaw.com .
Benjy Law Corporation
8889 W. Olympic Blvd., Penthouse
Beverly Hills, California 90211
