Elderly adults can be especially vulnerable to abuse and exploitation. That's why the California superior courts issue restraining orders - to help safeguard seniors from abuse. California residents 65 years and older can request a restraining order for the following reasons:
- Physical abuse
- Financial abuse
- Mental or emotional abuse
- Abandonment or abduction
- Deprivation by a caregiver of goods or services you need to avoid harm or suffering
The court has a wide breadth of authority to protect an elder from an abuser or someone threatening abuse. It possesses the power to order a person to:
- Not physically abuse, harass, hit, or threaten you
- Not contact or go near you, and
- Not have a gun
This protection can also be extended to family members and other people who are living with you.
It's important to know that besides the just the elder, a few other individuals may also file for a restraining order on the elder's behalf. These include:
- The elder's conservator or trustee
- The elder's attorney-in-fact who acts within the authority of power of attorney
- A person who has been appointed guardian ad litem for the elder
- Any other person legally authorized to file for the restraining order
California superior courts don't charge any fees to file for a restraining order. Let's list the forms necessary to file for an elder abuse restraining order.
First off, you need to fill out all sections of Form EA-100, Request for Elder or Dependent Adult Abuse Restraining Orders.
Second, you'll need to fill out all sections of Form CLETS-001, Confidential CLETS Information.
If you need to attach additional information, you can use Form MC-025, simply titled Attachment.
There are two forms to go. In Form EA-109, Notice of Court Hearing, fill out items 1 and 2.
Finally, on Form EA-110, Temporary Restraining Order, fill out items 1,2 and 3.
In order to get an elder abuse straining order, you must file in the superior court of the county where the abuse occurred, or where the abuser lives. Once you hand your forms to the clerk of the court, you will get a hearing date back on the Notice of Court Hearing form. If the court approves your request and the order is filed, you will receive a copy of a Temporary Restraining Order signed by a judge.
Typically the court will decide on whether to approve a temporary restraining order within 24 hours, if not sooner. You can ask whether to wait or return at a later time to pick up the signed Notice of Court Hearing and Temporary Restraining Order.
Should the court grant your request for a temporary restraining order, it will last until your court hearing date. That's when the judge will decide whether to continue the order or cancel it. An elder abuse restraining order can be in effect for up to five years.
Once the order is issued, a person 18 or older - not including the vulnerable elder or anybody elder protected under the order - must serve a copy of the order to the accused abuser. After that, the server will fill out Form EA-200, Proof of Personal Service, and hand it to you so you can file it with the court.
If the restrained person doesn't obey the order, then it's time to call the police. The restrained individual can be put under arrest and charged with committing a crime.
To find out if an elder abuse restraining order will be approved, you will be required to go to court. Form EA-109, Notice of Court Hearing, will indicate in Section 3 when and where to arrive for the hearing.
You are free to bring witnesses to court to support your case. In addition to witnesses, you can also bring:
- Written statements from witnesses made under oath
- Medical or police reports
- Damaged property
- Threatening communications, such as letters, emails or telephone messages
Witnesses may be allowed to speak at the court hearing, or they may not. The best step is to bring written witness statements under oath, which can be put into Form MC-030.
While it's not mandatory, it is a good idea to get a lawyer. There are no free court-appointed attorneys for hearings on restraining orders.
There's one other point worth mentioning: the restrained person can choose to come to the court hearing. That said, they still don't have the right to speak to you. If you feel afraid, intimidated or upset, talk to the court officer and let them know.
In California, a great resource that includes most of this information is EA-100 INFO, titled Can a Restraining Order to Prevent Elder or Dependent Adult Abuse Help Me? Most restraining order and temporary restraining order forms are mandatory judicial council forms, which means that you have to use the specific forms created by the CA State Judiciary. All Judicial Council forms, mandatory or optional, can be found at www.courts.ca.gov/forms.htm.
If you're looking to protect yourself or an elderly loved one from elder abuse or financial exploitation, you can call us at Hackard Law. We represent clients throughout California, including in Los Angeles, Sacramento, Alameda, Santa Clara, and Orange County. Call us today at 916-313-3030, and we'll be glad to see how we can help you.