What is happening in California financial elder abuse law? We're in the midst of an awakening in America. People now see more clearly the existence and frequency of the abuse of our seniors - elder abuse. This is not mere contrivance; the abuse of elders is a dark part of the human condition. Even Scripture warns against it: "But if anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever." 1 Timothy 5:8.
The aging of America, the political and cultural power of the Baby Boomers, and the ease of information flow have come together as a catalyst for passing and implementing laws focused on protecting our older population. Such laws help to bring this wrongdoing against seniors into clearer focus.
The Elements of Elder Financial Abuse
- An individual wrongfully took a victim's property.
- The victim was 65 years of age of older at the time of the wrongdoing.
- The wrongdoer took the property with intent to defraud or by undue influence.
- The victim was harmed; and
- The wrongdoer's conduct was a major factor in causing the victim harm.
If claims of financial elder abuse are to be litigated in California, our Courts will look to and expect more than the fact that an elder was some part of a financial transaction. There are over 5 million elders in California (people 65 or older) and the mere fact of age does not make them subject to elder abuse. Given the frequency of telephone calls that I gladly field regarding financial abuse of seniors I thought that it might be helpful to address some of the legal requirements of meeting an elder financial exploitation case.
"The Judicial Council of California has adopted award-winning plain language civil and criminal jury instructions that accurately convey the law using language that is understandable to jurors." The Judicial Council met its goal to simplify jury instructions to ensure that jurors understand the law and apply it to the facts during jury deliberations. The particular instructions for the financial exploitation of seniors are set out as follows:
CACI 3100 Financial Abuse-Essential Factual Elements (Welf. & Inst. Code, § 15610.30) states:
[Name of plaintiff] claims that [[name of individual defendant]/ [and] [name of employer defendant]] violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of [him/her/[name of decedent]]. To establish this claim, [name of plaintiff] must prove that all of the following are more likely to be true than not true:
1. That [[name of individual defendant]/[name of employer defendant]'s employee] [insert one of the following:]
[[took/hid/appropriated/obtained/ [or] retained] [name of plaintiff/decedent]'s property;]
[assisted in [taking/hiding/appropriating/obtaining/ [or] retaining] [name of plaintiff/decedent]'s property;]
2. That [name of plaintiff/decedent] was [65 years of age or older/a dependent adult] at the time of the conduct;
3. That [[name of individual defendant]/[name of employer defendant]'s employee] [[took/hid/appropriated/obtained/ [or] retained]/assisted in [taking/hiding/appropriating/obtaining/ [or] retaining]] the property [for a wrongful use/ [or] with the intent to defraud/ [or] by undue influence];
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]'s/[name of employer defendant]'s employee's] conduct was a substantial factor in causing [name of plaintiff]'s harm.
[One way [name of plaintiff] can prove that [[name of individual defendant]/[name of employer defendant]'s employee] [took/hid/appropriated/obtained/ [or] retained] the property for a wrongful use is by proving that [[name of individual defendant]/[name of employer defendant]'s employee] knew or should have known that [his/her] conduct was likely to be harmful to [name of plaintiff/decedent].
[[Name of individual defendant]/[Name of employer defendant]'s employee] [took/hid/appropriated/obtained/ [or] retained] the property if [name of plaintiff/decedent] was deprived of the property by an agreement, gift, will, [or] trust [or] [specify other testamentary instrument] regardless of whether the property was held by [name of plaintiff/decedent] or by [his/her] representative.]
The mere fact that a senior was involved in a transaction where a senior lost money or other things of value does not mean that the other party's conduct constitutes elder abuse.
The Judicial Council does a good job of explaining California's statutory approach to elder abuse:
CACI 3117 Financial Abuse-"Undue Influence" Explained states:
"Undue influence" means excessive persuasion that overcomes another person's free will and causes the person to do something or to not do something that causes an unfair result. In determining whether [name of defendant] exerted undue influence on [name of plaintiff], you must consider all of the following:
a. [Name of plaintiff]'s vulnerability. Factors to consider may include, but are not limited to, [incapacity/illness/disability/injury/age/education/impaired mental abilities/emotional distress/isolation/ [or] dependency], and whether [name of defendant] knew or should have known of [name of plaintiff]'s vulnerability.
b. [Name of defendant]'s apparent authority. Factors to consider may include, but are not limited to, [name of defendant]'s position as a [fiduciary/family member/care provider/health care professional/legal professional/spiritual adviser/expert/ [or] [specify other position]].
c. The actions or tactics that [name of defendant] used. Actions or tactics used may include, but are not limited to, all of the following:
[(1) Controlling [name of plaintiff]'s necessaries of life, medications, interactions with others, access to information, or sleep;]
[(2) Using affection, intimidation, or coercion;].
[(3) Initiating changes in personal or property rights, using haste or secrecy in making those changes, making changes at inappropriate times and places, and claiming expertise in making changes.]
d. The unfairness of the result. Factors to consider may include, but are not limited to, [the economic consequences to [name of plaintiff]/any change from [name of plaintiff]'s prior intent or course of conduct or dealing/the relationship between any value that [name of plaintiff] gave up to the value of any services or other consideration that [name of plaintiff] received/ [or] the appropriateness of the change in light of the length and nature of the relationship between [name of plaintiff] and [name of defendant]].
Evidence of an unfair result, without more, is not enough to prove undue influence.
So as a practical matter, what do CACI 3100 and 3117 mean when we look at a potential case? There are many places to start but one obvious place is whether the potential defendant "stood in a position of trust and confidence" with the plaintiff/decedent? Facts must be identified to support such an allegation. Evidence of an unfair result (the elder lost money) is not enough to prove undue influence (CACI 3117).
What then do we look for? We look for the factors that support whether a position of trust and confidence existed. It is far easier to show trust and confidence in a family member, financial advisor, or caretaker than a random person in the plaintiff/decedent's life. That said, neighbors, friends, and others might well stand "in a position of trust and confidence." Each case is different but the admonition is important that mere damages do not constitute elder abuse.
When I speak to a client or prospective client about a potential financial elder abuse claim I apply the CACI factors (however unconsciously) in analyzing the case. I hope that this helps those who wonder whether third party actions against their elder loved one might constitute elder abuse.