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Mar 28, 2018 by |

San Mateo County and California Financial Elder Abuse Attorney: Financial Elder Abuse and Confidential Relationships

ATTORNEY NEWSLETTER

Financial Elder Abuse

Senior victims of financial elder abuse are frequently targets of abuse from the very people they have entrusted to care for them or manage their financial affairs once they have lost the ability to manage for themselves. Courts often characterize the relationship between the senior and the party managing their affairs or caring for them as a “confidential relationship” and extend a form of fiduciary duty upon the acting party in such instances.  The fiduciary relationship does not have to be a legal one; it can be a domestic or personal relationship built on trust, dependence, and reliance. Examples of people that may have a fiduciary duty with a senior include caregivers, financial advisors, accountants, insurance agents, pastors, rabbis, and attorneys.

Unfortunately, some parties who assume such roles may abuse their position. When the party betrays a confidential relationship, their actions constitute breach of fiduciary duty and financial elder abuse. The San Mateo County and California financial elder abuse attorneys at Evans Law Firm, Inc. represent victims in civil actions against all manner of abusers: caregivers, trustees and those acting under Powers of Attorney, insurance agents, brokers, reverse mortgage lenders, financial advisors, embezzling family members and caregivers and scam artists. If you or someone you know is the victim of financial elder abuse in San Francisco or elsewhere in California, call Evans Law Firm today at 415-441-8669.

Constructive Fraud

The legal theory of “constructive fraud” can play an important role in suing for recovery in financial elder abuse cases. Under a constructive fraud theory, it is not necessary to show that a fraud was intended or that the aggrieved party relied on the fraud.  Rather, the court considers the totality of the relationship between the senior and the alleged abuser to conclude that the victim was defrauded even in the absence of the particular elements typically part of a fraud case.  That is, the court primarily looks to see if a confidential relationship existed and the actor took advantage of that relationship to enrich himself or herself. 

The theory is consistent with California’s broad interpretation of what constitutes financial elder abuse. Under California law, any “taking” of a senior’s property for a “wrongful use” (for example, for one’s own benefit instead of the benefit of the senior) constitutes financial elder abuse.  Victims of financial elder abuse are entitled to restitution and additional remedies including the award of attorneys’ fees and costs and punitive and treble damages in certain situations.

Remedies and Prevention

If you’re a senior or the loved one of a senior be cautious in all financial matters. Know that anyone could be a potential financial predator.  Report financial elder abuse to the authorities when you first suspect but also seek counsel to pursue all available remedies under California law including the mandatory award to you of attorneys’ fees for bringing your case.  

Seek the advice of people you trust. Do not share confidences and personal matters with people you do not really know. Do not relinquish authority by a Power of Attorney to anyone unless it’s someone you completely trust.  Make sure checks are kept in a safe place.  If in-home care is required, do a thorough background check on anyone before hiring them.  Dependent seniors are often victims of financial elder abuse by caregivers.  Keep an eye out for strangers who suddenly become over-involved in a senior’s daily life.  Don’t respond to door-to-door or phone or internet solicitations for money; these are the most recurring types of financial elder abuse.  Lastly, if you’re a senior, don’t isolate; let loved ones and longtime friends and professionals help you just as you helped them in your younger years.  If you’re the loved one of a senior stay involved and maintain daily contact.

Contact Us

If you or a loved one been the victim of financial elder abuse in San Mateo County or elsewhere in California, contact financial elder abuse attorney Ingrid Evans and the other Evans Law Firm financial elder abuse attorneys at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our attorneys have experience with all types of financial elder abuse, investment and securities fraud and annuity fraud.  We can guide your case through a jury trial, through a FINRA arbitration if required when the abuser is a broker or financial advisor, or toward an equitable settlement.  We handle cases involving physical and financial elder abuse, qui tam and whistleblower law, nursing home abuse, whole life insurance and universal life insurance, and indexed, variable, and fixed annuities.

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