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How to Protect Families from Elder Financial Abuse | CA Trust Litigation

Protecting Families from Elder Financial Abuse.jpgThe power and potency of California elder financial abuse litigation dramatically changed for the better a few years ago - to be exact January 1, 2014 - the date the Elder Abuse and Dependent Adult Civil Protection Act became effective. It is one thing to have a robust new statute to protect elders and their families and it is another thing to enforce it. The California Legislature noted at the time of the law's passing that "cases of abuse of . . . (infirm elderly persons and dependent adults) are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse." It's 2018, and while the law has changed and become more forceful, it is my experience that these cases are still "seldom prosecuted as criminal matters" and "few civil cases are brought in connection with this abuse."

Criminal prosecution is beyond my authority - it is up to law enforcement agencies to enforce the criminal law. Civil litigation is in our purview - we are licensed California private attorneys with a heavy focus on estate, trust, and elder financial abuse litigation. Elder financial abuse litigation is a potent force - the Legislature acted with a stated goal of encouraging private attorneys to investigate and prosecute civil elder abuse claims. One aspect of this goal is the recovery of attorneys' fees if the plaintiff proves liability for elder financial abuse by a preponderance of the evidence. Preponderance of the evidence means proof that something "is more likely to be true than not true." Punitive damages are available if the plaintiff demonstrates by clear and convincing evidence "oppression, fraud, or malice." An additional remedy under California law allows the court to order a finding that the abuser be disinherited under California Probate Code Section 259.

Disinheritance, attorneys' fees, punitive damages - all potent - all possible against a wrongdoer - so why aren't there more civil cases? A few reasons - probate lawyers like probate court. Probate courts do not hold jury trials. Elder financial abuse cases are usually tried by law firms like Hackard Law who try estate and trust cases in probate court and elder financial abuse cases in civil court. The Legislature has encouraged private attorneys to take these cases and we do. That said, we only have so much time available with our busy litigation caseload to take on new cases. We can't accept every case, and any case that we do take must meet the criteria that we have established for our representation. I really wish that more lawyers would litigate elder financial abuse cases - there are more cases than lawyers willing to prosecute them.

If you would like to speak with us about your elder financial abuse case call us at Hackard Law - (916) 313-3030. If you would like to read more about this area of law, you can purchase my book - The Wolf at The Door: Undue Influence and Elder Financial Abuse on Amazon. We donate all proceeds to the Alzheimer's Foundation of America.

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