It's 2016. We are in the midst of a year in which it seems that our American flag is always at half-mast, popular anger at the status quo from opposite ends of the spectrum is growing and common notions as to law and policy face upheaval.
Even for the staid and predictable processes of estate litigation, there are extraordinary changes underway. Attorneys long invested in the California estate process as it was are learning that the risks to estate wrongdoers are shifting. The risk of both civil and criminal prosecution of financial elder abusers now carries a much higher probability.
Well-seasoned lawyers - many of them pillars of the probate bar - can still misunderstand California's laws on financial elder abuse. New laws have redefined both the boundaries and venues of the prosecution of elder financial abuse claims. The right to a jury trial in seeking the prosecution of financial elder abuse claims is a part of this redefinition.
Financial elder abuse defendants hoping to hide behind increased standards of evidentiary proof before California courts and juries will find no comfort in the new law. Proving financial elder abuse requires showing that the necessary facts are more probable than not. Fiduciaries who should reasonably have known that the senior would suffer harm now face a presumption of undue influence. Failing to rebut this presumption will result in the return of wrongfully taken assets and a money judgment.
A defining feature of previous financial elder abuse litigation was its venue - the probate courts - courts where all disputed matters are heard by a judge without a jury. Many commentators and trial lawyers believe that a jury of one's peers is more likely to be a strong decision-making force in protecting seniors against dangerous financial predators.
Probate defense counsel, regular and comfortable participants in the probate court processes, often finds the uncertain and unfamiliar ground of a jury trial to be discomfiting.
When we see inappropriate banking activity, check signatures bearing little resemblance to that of the account owner or deeds signed by seniors physically or mentally incapacitated, we think financial elder abuse. The abuser's excuses - however honed - remind us of former Texas Governor Anne Richard's observation that "you can put lipstick and earrings on a hog and call it Monique, but it's still a pig."
The more that we litigate undue influence financial elder abuse cases in the various Superior Courts of this state, the more we see that the increasing budget and public policy commitments for Adult Protective Services are having a significant impact in extending our citizens assistance on how to protect our senior citizens. These protections - recently enhanced, explained and upgraded by the California legislature - are beginning to take center stage in elder financial abuse litigation. The next generation of California estate litigators should take note.