Elder Law in California
California Elder Law Attorneys
Elder abuse takes many forms. Sometimes it can be physical, such as when a nursing home employee slaps or pushes a patient. Other times, it can be financial, such as when an unscrupulous stockbroker pushes an elderly client into a risky investment. In many cases, it can be insidious and difficult to detect, such as prolonged emotional abuse or the persistent failure of a caretaker to meet an elder’s basic physical needs. No matter the form, California’s elder abuse laws prevent harm to seniors and allow for recovery in lawsuits should abuse occur.
As individuals over the age of 65 continue to constitute a larger and larger percentage of the American population, these issues have in recent years been thrust into the national spotlight. However, this problem is not new — only the attention paid to it and the urgency to address it have changed. Although we still have much work to do to ensure that none of our senior citizens ever experience abuse, many states have already enacted strong legal frameworks to detect its occurrence and punish its perpetrators.
Here, we will examine some key provisions of California’s civil elder abuse statue — the Elder Abuse and Dependent Adult Civil Protection Act — and related civil and criminal laws. If you have any questions or concerns regarding elder abuse, contact our California elder abuse attorney today.
The Elder Abuse and Dependent Adult Civil Protection Act
California was one of the first states in the nation to pass comprehensive legislation to combat elder abuse. The Elder Abuse and Dependent Adult Civil Protection Act of 1982 (the “Act”) provides a civil cause of action for a wide range of acts commonly understood to constitute “elder abuse,” including physical abuse, neglect, and financial abuse, as well as requires certain individuals to report suspected incidents of elder abuse to the proper authorities. Its scope has been expanded through several amendments in the intervening years. In its legislative findings, the Legislature stated three general rationales for enacting the law:
- Elderly, infirm, and dependent adults are a disadvantaged class,
- Criminal prosecutions against those who abuse these individuals are rare, and
- Civil actions for elder abuse are also rare due to problems of proof, court delays, and the lack of incentives to press these cases
As such, the primary motivation behind passing the Act was to “foster and promote community services for the economic, social, and personal well-being of its citizens in order to protect those persons described in this section.”
California’s Stance on Physical Elder Abuse
Defining Physical Abuse
While “physical elder abuse” is somewhat of a catch-all term in common parlance for any behavior that tends to cause physical pain to an elderly person, the Act defines it very specifically. According to the Act, physical abuse means any of the following:
- Assault with a deadly weapon or force likely to produce great bodily injury
- Unreasonable physical constraint
- Prolonged or continual deprivation of food or water
- Sexual assault, including:
- Sexual battery
- Rape in concert
- Spousal rape
- Oral copulation
- Sexual penetration
- Lewd or lascivious acts
- Use of physical or chemical restraints or psychotropic medication for the following reasons:
- For a period beyond that which was ordered by a physician, or
- For any purpose not authorized by a physician
The Act also differentiates physical elder abuse from neglect, and defines neglect as “the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in that position would exercise.” Neglect can include the following behaviors and many more:
- Failure to assist in personal hygiene
- Failure to assist in the provision of food, clothing, or shelter
- Failure to provide medical care
- Failure to protect from health and safety hazards
- Failure to prevent malnutrition or dehydration
There can often be overlap between acts that constitute abuse and those that constitute neglect, which can lead to confusion. If you have questions about the difference between elder abuse and elder neglect, please contact a California elder abuse lawyer.
The Act requires certain individuals to report incidents of elder abuse or suspected elder abuse to law enforcement. These “mandated reporters” generally are individuals who exercise total or partial responsibility for the care of elders, including nursing home staff, healthcare professionals, clergy members, employees of county adult protective services, and law enforcement. These reporters must make a report whenever they observe or have knowledge of an incident that reasonably appears to be physical abuse (as defined above). Failure to do so is a misdemeanor and is punishable by up to six months in jail or a fine of up to $1,0000 (or both).
Civil Actions and Damages
One of the touchstones of the Elder Abuse and Dependent Adult Civil Protection Act is its provisions authorizing enhanced damages in civil actions for physical abuse. When a plaintiff shows by clear and convincing evidence that the defendant has engaged in either physical abuse or neglect (as defined above) and that the defendant’s behavior was reckless, oppressive, fraudulent, or malicious, the plaintiff is entitled to the following damages (in addition to those otherwise provided by law):
- Reasonable attorney’s fees and costs
- Pain and suffering damages in actions brought by a deceased plaintiff’s personal representative (these damages are limited, however, to $250,000 in actions against healthcare providers)
Victims of physical elder abuse are also entitled to recover punitive damages where the defendant engaged in oppression, fraud, or malice.
Special Considerations for Actions Against Nursing Homes
Most incidents of nursing home abuse are perpetrated by nursing home employees against their patients. It is a well-settled principle of law that employers generally are liable for the acts of their employees (a doctrine known as respondeat superior), and this principle applies in the context of elder law. Rather than pursuing a cause of action against an individual nursing home employee who likely has limited resources, most victims of nursing home abuse are better served by pursing the nursing home itself, which bears the ultimate responsibility for the conduct of its employees.
In order to succeed on a claim of physical elder abuse against a nursing home employee’s employer, the Act requires that the plaintiff show the following:
- The employer had advance knowledge of the employee’s unfitness and employed him or her with conscious disregard of the safety of others,
- The employer authorized or ratified the employee’s conduct, and
- The employee engaged in oppressive, fraudulent, or malicious conduct
For more information about pursuing legal action against nursing homes and to what extent employers can be held liable for the actions of their employees, contact a California elder abuse attorney.
Financial Elder Abuse in California
Physical elder abuse is not the only type of abuse that senior citizens suffer. They can also suffer from financial elder abuse, which occurs whenever a senior is harmed financially, either through outright theft or through coercion, trickery, or deception. Because many seniors have limited resources and live on fixed incomes, financial elder abuse can be devastating to their well-being and ability to maintain their way of life. The California Elder Abuse and Dependent Adult Civil Protection Act addresses this form of abuse.
Defining Financial Abuse
As with physical elder abuse, the Act defines “financial elder abuse” very specifically. According to the Act, financial abuse of an elder person occurs when a person does any of the following:
- Takes, secrets, appropriates, obtains, or retains real or personal property for a wrongful use or with an intent to defraud (or both)
- Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property for a wrongful use or with an intent to defraud (or both)
- Takes, secrets, appropriates, obtains, or retains, or assists therein, real or personal property by undue influence (i.e., excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will, resulting in inequity)
A defendant will be deemed to have engaged in financial elder abuse when
- He or she takes, secrets, appropriates, obtains, or retains the property, and
- He or she knew or should have known that this conduct was likely to be harmful to the senior
The Act also defines “real or persnoal property” very broadly to include all property rights the senior may possess, including those acquired by means of an agreement, donative transfer, or testamentary bequest.
Elder Abuse Lawsuits and Damages
The causes of action and damages available in financial elder abuse cases are very similar to those in physical elder abuse cases. Where the plaintiff can prove by clear and convincing evidence that the defendant is liable for financial abuse (as defined in the Act), a plaintiff is entitled to recover reasonable attorney’s fees and costs in addition to all other remedies otherwise provided by law. The Act also allows a decedent’s personal representative or successor in interest to recover pain and suffering damages and allows for actions against employers for the acts of their employees.
Other Sources of Enhanced Damages for Financial Elder Abuse
When it comes to financial elder abuse, the California Elder Abuse and Dependent Adult Civil Protection Act is not the only statute that provides enhanced damages to its victims. In addition to the enhanced damages provided by the Act, California Civil Code § 3345 allows a judge or jury to award treble (triple) damages to victims of financial elder abuse when that abuse involves unfair or deceptive practices or unfair methods of competition. In deciding whether to award these enhanced damages, the judge or jury must consider:
- Whether the defendant knew or should have known that his or her conduct was directed to a senior citizen,
- Whether the defendant’s conduct caused a senior citizen to suffer loss of their residence, employment, source of income, payments under a retirement plan or government benefits program, or assets essential to the health or welfare of the senior citizen, and
- Whether the senior citizen was substantially more vulnerable to the defendant’s conduct than other members of the public due to the senior citizen’s age, poor health, or impaired understanding
If the judge or jury, in its discretion, finds that one or more of these factors was involved in a scheme of financial elder abuse involving unfair or deceptive practices or unfair methods of competition, it may award up to three times the amount of damages it would have awarded in the absence of such a finding.
What About California’s Criminal Laws about Elder Abuse?
There is a great degree of overlap between criminal liability and civil liability for certain types of behavior. For example, when an individual is assaulted, he or she can either press criminal charges against the perpetrator or file a civil action to recover damages (or both). Many of the actions that constitute elder abuse, such as assault, battery, sexual assault, and theft, are also criminal acts and can expose the perpetrator to criminal prosecution. The California Elder Abuse and Dependent Adult Civil Protection Act highlights this overlap very clearly in that most of the definitions of actions that constitute “physical elder abuse” are drawn directly from the California Penal Code.
Several sections of the California Penal Code address both physical and financial elder abuse, including:
- 368(b)(1)(2): Causing or permitting infliction of physical pain or mental suffering on an elder or dependent adult under circumstances likely to produce great bodily harm or death
- 368(c ): Causing or permitting infliction of physical pain or mental suffering on an elder or dependent adult under circumstances not likely to cause great bodily harm or death
- 368(d): Theft or embezzlement by a person other than a caretaker of an elder or dependent adult
- 368(e): Theft or embezzlement by a caretaker of an elder or dependent adult
Please note that a previous criminal prosecution for elder abuse — even one in which the defendant was found not guilty — does not bar subsequent civil actions for the same events.
Contact a California Elder Abuse Law Firm
As demonstrated herein, there is a complex web of laws and procedures that govern the imposition of liability for acts of physical and financial elder abuse. If you or someone you care about has suffered elder abuse, you don’t have to navigate this maze alone. For more information about obtaining justice for victims of elder abuse, contact a California elder abuse attorney at Evans Law Firm by calling 415-441-8669.