The California Guide to Elder Financial Abuse

Elder financial abuse by family members is more common than you may think, and California courts have been cracking down on it more and more in recent years. Sometimes called “senior fraud,” elder financial abuse can range from something as simple as stealing cash out of grandma’s wallet to something as sophisticated as taking control of an entire estate through high-level fraud schemes. 

One of the most painful aspects of these cases is that it is often a trusted family member, friend, or caretaker who commits financial abuse against a senior loved one. Because of this, victims and their heirs are often reluctant to take appropriate legal action. While this is perfectly understandable, it’s important to note that elder financial abuse usually doesn’t result in criminal charges, meaning the offender will not go to jail or have a criminal record. And if you allow the abuses to continue unchecked, entire legacies can be lost in an alarmingly short amount of time.

 

TALK TO SCOTT

 

What is elder financial abuse?

Elder financial abuse and California law are the topics we will cover in this article. 

California Welfare and Institutions Code §15600 protects all adults ages 65 or older, and all dependent adults, from various types of abuse and neglect. Financial abuse of elders is an all-too-common offense, which occurs when a person: 

“Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” 

 “Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.”

“Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.

For any of these causes of action, the person alleging the abuse must also show that the perpetrator knew or should have known that their act was likely to cause harm to the elderly or dependent victim.

 

What is an example of elder financial abuse?

While unscrupulous large-scale scammers are launching new fraud campaigns against the elderly every day, the vast majority of perpetrators we deal with at RMO are people who are close to the victim. A nephew who keeps convincing his aunt with dementia to make massive “loans” to him. A sister who cashes mom’s social security check and spends it all on herself. A stepmother who pressures dad into changing his will after he’s been diagnosed with Alzheimer’s. A trusted caretaker who’s been forging Grandma’s signature on checks or tipping herself with an ATM card. 

More sophisticated examples of elder financial abuse often involve personal representatives. Trustees, power of attorneys, conservators, and other types of guardians usually have privileged access to a senior’s assets, as well as broad authority over financial decisions. It’s unfortunate, but perhaps not surprising, that many such representatives abuse their powers to profit from another’s infirmity. 

 

Where do I report financial abuse of the elderly?

In California, you may report elderly financial abuse to Adult Protective Services or to local law enforcement. Ideally, it is best to first have a consultation with a good elder abuse lawyer in the victim’s area. An experienced lawyer can advise you on where and how to best make your report. It may also be helpful to review the California Department of Business Oversight’s guidelines for preventing and reporting elder financial abuse, which includes downloadable report forms.

For a state-by-state list of where to report, go to the U.S. Administration on Aging’s National Center on Elder Abuse website ncea.aoa.gov, or call them directly at 1-800-677-1116.

 

How to Report Elder Financial Abuse

How and where to report elder financial abuse will depend on your state and its policies. In most states, you can report it either to local law enforcement or Adult Protective Services. Some states even have a hotline you can call. 

It is important to note that reporting elder financial abuse is different from pursuing a legal remedy for it. If a victim or their loved one wants to be justly compensated or recoup their losses, they will need to hire a good elder abuse attorney to file a civil suit against the offender.

 

Does California have a statute of limitations for financial elder abuse?

The statute of limitations for financial elder abuse in California is generally four years from when the plaintiff discovered, or should have discovered, the abuse. If the financial abuse is current and ongoing, the statute of limitations doesn’t apply. For example, if you caught your brother embezzling trust funds seven years ago, and he is still doing it, you’re likely not precluded from bringing suit. 

Whatever the case, don’t assume the statute of limitations bars your claim until you’ve consulted with a good elder abuse lawyer. There are many exceptions to the rule, and alternative legal avenues can often be used to get your case into court. 

 

What do I do if I’m accused of financial elder abuse?

If you are accused of financial elder abuse, the first thing to do is cease all communication with your accusers, any mutual associates, and of course the alleged victim. Do not say or do anything before speaking with an experienced elder abuse defense attorney, and refrain from making any large, irregular, or otherwise suspicious transactions. 

A good senior fraud defense lawyer will guide you through the process of proving that your actions were lawful, justified, and in the best interest of the elderly party.    

 

TALK TO SCOTT

 

What are warning signs of elder financial abuse?

Some warning signs of elder financial abuse to watch out for are:

  • Money missing from accounts
  • Excessive cash withdrawals or credit card use
  • Missing or forged checks
  • Invoices, bills, or collection letters piling up in the mail
  • Lack of food and basic necessities in the elder person’s home
  • Property or valuables going missing from the elder person’s home
  • A noticeable change in the elder person’s mood or demeanor

If you notice any of these warning signs, further investigation is definitely warranted. Contact a financial elder abuse attorney to learn how best to proceed. 

 

How do I prove financial elder abuse?

To win a financial elder abuse claim in California, you need to prove that it is “more likely than not” that the abuse did occur, that the victim was 65+ (or dependent) when the abuse occurred, and that the perpetrator knew or should have known that their act was likely to cause harm to the elderly victim. 

Consider pursuing a financial elder abuse lawsuit if you can prove that:

  • Someone has taken property from an elderly person without their permission
  • Someone has “borrowed” money or property from an elderly person and failed to return it or pay it back
  • Someone has used fraud, coercion, or undue influence to wrongfully obtain property from an elderly person
  • Someone has knowingly assisted another person in perpetrating financial elder abuse. 

Bear in mind that the plaintiff’s burden of proof in civil court is far lower than in criminal court, which helps us win these cases for clients every day at RMO. 

 

Is there jail time for financial elder abuse?

It’s possible, if the offense was theft, embezzlement, or financial fraud, and the victim chooses  to press criminal charges. Depending on the nature and severity of the crime, jail time can be anywhere from a couple of months up to four years in California. 

Generally, though, we see financial elder abuse treated only as a civil matter, which means there is no jail time or criminal record for the abuser. They usually just have to pay restitution and punitive damages to the victim. 

 

Are there criminal charges for financial elder abuse? 

There can be, depending on the type of offense that was committed. California Penal Code § 368 provides criminal penalties for elder abusers who have committed theft, embezzlement, or any form of financial fraud. In such cases, the victim may choose to bring any number of associated criminal charges, or they may choose not to.

In our practice, we don’t see a lot of victims filing criminal charges. Our clients are typically more concerned with rectifying the situation financially — they don’t necessarily want to put anyone behind bars. If a victim does decide to file criminal charges, they may result in a misdemeanor or a felony. Misdemeanor convictions can lead to up to a year in jail, and a $1,000 fine, while felony convictions can result in up to four years in jail and fines up to $10,000.

 

What is the penalty for elder financial abuse?

Civil penalties are generally focused on simply returning the stolen assets or money, for starters. Sometimes, the wrongdoer also may need to pay interest, any gains, treble damages, punitive damages, and attorney’s fees or costs. For example, if the accused stole $100,000 and invested it, then the accused most likely would have to repay the $100,000 plus any interest, earnings or profits that accrued. And if a court finds the wrongdoer wrongfully took the elder’s property, then the elder may also be entitled to recover treble damages (or three times the monies taken, or $300,000) and their attorney’s fees and costs.

Due to the potential availability of treble damages, punitive damages, attorney’s fees and costs, the vast majority of financial elder abuse cases settle out of court, usually within 12 months. What this means is that an elder’s financial security often can be secured swiftly.

For more, see our article on the most common penalty for elder financial abuse

 

What are California financial elder abuse punitive damages?

Punitive damages in a financial elder abuse case refer to additional sums awarded over and above the amount required to directly compensate the victim for their loss. While restitution is ordered for the purpose of making the victim whole, punitive damages are ordered to punish the perpetrator for their wrongful acts. Depending on the facts of your case, you may be entitled to damages far beyond the amount of money the financial abuser actually cost the victim. 

 

How do I prevent elder financial abuse?

The best way to protect an elderly loved one from financial abuse is to make sure the lines of communication stay open, transparent, and continuous. If an older family member becomes unable to handle his or her affairs, it’s a good idea to call a family meeting, and invite any close friends and caregivers to attend as well. Come up with a plan for delegating tasks, and systems for staying accountable to each other, such as group access to online account summaries or automatic phone alerts when transactions occur. 

If possible, try not to let an elderly loved one become too isolated. Continue to visit them and encourage others to do so as well. The more isolated an older person becomes, they more likely they are to fall prey to a financial abuser.

Finally, work to simplify the entire financial picture. If dad has six outstanding credit cards, try to consolidate them down to two. If there are many separate financial holdings at different institutions, consider transferring all the accounts to a single money manager or investment firm. You want to keep everything as centralized, accessible and visible as possible — otherwise you might not notice someone taking a little bit here and a little bit there until major damage has been done. 

 

Can AARP help with elder financial abuse?

Yes, AARP is very involved in the fight against elder financial abuse. As scammers and defrauders continue to rob American seniors of over three billion dollars annually, AARP has been lobbying for heightened protective measures, harsher penalties for perpetrators, and increased oversight of appointed representatives. Visit AARP’s website for more on their fight against elder abuse and exploitation

 

When should I contact an elder financial abuse attorney?

You should contact an elder financial abuse attorney the moment you suspect that someone is taking advantage of an elderly or infirm person for their own monetary gain. 

We understand how stressful the prospect of litigation can be when the offender is a family member or friend, but in our experience, a financial abuser will not stop until someone holds them legally accountable. We strongly urge you not to wait until more damage has been done. If you wait too long to protect your inheritance, there may be no inheritance left to protect.

We recommend finding an experienced elder financial abuse attorney familiar with the county court in where the victim resides. For example, if the financial abuser lives in Miami, Florida, but the victim lives in Los Angeles, California, we recommend working with an elder financial abuse lawyer in Los Angeles. A Los Angeles elder law attorney will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.

 

Have questions? Contact RMO now for a free consultation.

(424) 320-9444 or hello@rmolawyers.com

 

TALK TO SCOTT

 

Read More

The Guide to Family Trust Embezzlement and Stealing

The Winner’s Guide to Family Trust Contests

The Trustee’s Guide to Breach of Trust Claims

The California Guide to Removing an Executor of Estate 

The Most Common Penalty for Financial Elder Abuse

 

About RMO Lawyers

RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com