What many estate planners and occasional probate litigation attorneys don't understand about undue influence and elder financial abuse is how public policy has changed. California law now encourages firms like Hackard Law to investigate and prosecute elder financial abuse cases in civil court.
The California legislature has enacted laws to insure that the wrongdoer, not the elderly victim or his/her survivor, should pay the attorney's fees in successful cases. This is a game changer. A wrongdoer finds it much harder to hide behind the protracted processes of a probate court and in the proper circumstance will find himself as a defendant in civil jury trial subject to liability for his wrongdoing, attorney's fees and possibly punitive damages.
California jury instructions for actions brought by the victim of the abuse, or by the survivors of the victim, under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) must prove, by a preponderance of the evidence, that:
(1) "the defendant
(2) "[[took/hid/appropriated/retained] [name of plaintiff/ decedent]'s property;] (and/or) [[assisted in [taking/hiding/appropriating/retaining] [name of plaintiff/decedent]'s property;]
3. That [name of defendant] [[took/hid/appropriated/retained]/ assisted in [taking/hiding/appropriating/retaining]] the property [for a wrongful use/[or] with the intent to defraud];
4. That [name of plaintiff/decedent] was harmed; and
5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm."
A probate litigation attorney or elder financial abuse litigator who files an EADACPA for a jury trial in the civil side of the California Superior Court is armed with the power of California Welfare & Institutions Code §15657.5 that establishes preponderance of evidence as the burden of proof and allows for the recovery of attorney's fees in meritorious cases. The trust, estate, probate and elder financial abuse litigators at Hackard Law are aggressively enforcing the provisions of the relatively new financial elder abuse statute. Traditional probate court litigators, often unaware of the new law, are shocked that an estate related matter may be tried before a jury in the Superior Court.
Defense lawyers often make the mistake of believing that the only factor in an elder financial abuse case is whether the victim had mental capacity. Mental capacity is one thing; victim vulnerability is quite another. Victim vulnerability in undue influence cases does not rest on capacity alone. In fact, a victim with capacity may be vulnerable for a host of other reasons, including illness, a disability, an injury, advanced age, limited education, impaired mental abilities, emotional distress, isolation, dependency, alcoholism, substance abuse, or other factors that make him or her vulnerable to exploitation. Since public policy favors the protection of elder financial abuse victims, our civil litigation toolbox is expanding to address elements of vulnerability well beyond a simple issue of capacity.
Victims of elder financial abuse and their surviving family members have new rights to make wrongdoers accountable. If you choose to enforce those rights, there is now a powerful legal basis to prevent a wrongdoer's conduct from being rewarded. The bottom line is that the enforcement of new laws against elder financial abuse will help to prevent and protect America's elders from future harm.
Hackard Law is committed to safeguarding California families from elder financial abuse in trust and estate disputes. Whether it's Los Angeles, Sacramento, Alameda or San Diego, we're there to enforce beneficiary rights. Call us today at 916-313-3030 to see how we can help you.