Financial elder abuse is a highly emotional situation, made that much more complicated by the fact that all-too-frequently the abuser is a family member. Due to that familial relationship, it’s only natural that victims are concerned about what will happen to the abuser if an elder financial abuse attorney is hired.
Generally, we see financial elder abuse treated only as a civil matter, which means there is no jail time or criminal record for the abuser. The penalty may be just returning the stolen assets or money. Sometimes, the wrongdoer also may need to pay interest, any gains, treble damages, punitive damages, attorney’s fees and/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.
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.
Also, due to the potentially significant exposure associated with financial elder abuse claims and the inability of the abused elder to pay, we often offer contingency financial elder abuse arrangements. This allows the elder to prosecute their claims without worrying about how they are going to pay their attorney and the costs associated.
Although extremely difficult, if a financial elder abuser is found to have wrongfully taken an elder’s belongings California law does provide a mechanism to have them disinherited. Under Probate Code section 259, someone guilty of wrongful financial elder abuse can be found to have predeceased the elder, effectively disinheriting them.
A financial elder abuse case goes to court when the accused refuses to return assets, such as money, stolen from an elder. Depending on the response of the wrongdoer – i.e. if they claim they did nothing wrong, that the money was given voluntarily, etc. – then a court case may be required.
Court cases tend to take much longer than negotiated settlements, but if the wrongdoer won’t cooperate you may have no choice but to go to court. Court cases can take years, although we routinely wrap cases in less than one year. Court also costs more. However, going to court has the advantage of securing a legally enforceable judgment that can be used to force the abuser to repay the funds within a prescribed timeframe or on a set schedule. It is important to understand that court processes are an important weapon, a tool that can be used to bring an uncooperative wrongdoer to answer for their deeds.
California Penal Code section 368 provides that financial elder abuse includes theft, embezzlement, or a form of financial fraud. So, if the victim chooses, they may file charges of theft, forgery, bribery, or any number of criminal charges against the abuser.
We don’t typically see victims filing criminal charges. However if the victim so chooses, and criminal charges are filed, financial elder abuse can lead to misdemeanor and felony charges. Misdemeanor convictions can lead to up to a year in jail, and a $1,000 fine. Felony convictions can result in up to four years in jail and fines up to $10,000.
Generally, family members simply want their loved elder’s assets returned. As long as the assets are returned and the elder’s financial future secured the desire to send a family member or trusted family friend to jail wanes.
The real answer is: It depends. Financial elder abuse cases can result in thousands of dollars of attorney time and costs. However, in many cases, fees and costs can be recovered from the abuser, if they have the resources to pay them. Often the best solution is to retain a contingent fee elder abuse lawyer, or negotiate a hybrid attorney fee structure, where the lawyer agrees to take a reduced hourly fee coupled with a smaller contingency or success fee. That way the drain on the elder’s remaining assets is lessened while aligning the lawyer’s interests with the client’s.
Contact a financial elder abuse attorney the moment you suspect abuse. The single biggest regret we have seen is family members who have waited, not wanting to cause family disharmony, until it’s too late and the elder is left in a precarious financial or health situation. What’s more, the longer you wait to pursue claims, the less likely there will be anything to recover from the abuse.
We recommend finding an experienced financial elder abuse attorney familiar with the county probate court in the county where the victim lives. For example, if the victim lives in Los Angeles, we recommend working with an attorney in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
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