Civil Remedies for Elder Financial Abuse: Double Damages, Attorney Fees, and Asset Recovery

by Michael A. Hackard

Publication Date January 12, 2026 in Elder Financial Abuse, Elder Financial Exploitation Guide for Attorneys

The question I hear most often from families facing elder financial exploitation is: “Is it worth suing?” The answer depends largely on understanding the remedies available—and many families underestimate what they can recover.

Elder financial abuse cases are not ordinary civil litigation. State legislatures have recognized that exploitation of the elderly requires enhanced remedies to deter wrongdoing, compensate victims, and make litigation economically viable. This guide examines the civil remedies available, using California’s framework as a national model.

Statutory Presumptions That Shift the Burden of Proof

In ordinary undue influence litigation, the burden falls on the plaintiff to prove that a transfer resulted from improper pressure or manipulation. Elder abuse statutes in many states reverse this burden in specific circumstances.

Care Custodian Presumption. California Probate Code Section 21380 provides that any instrument making a donative transfer to a “care custodian” is presumed to be the product of fraud or undue influence if the transfer occurred during the period when the care custodian provided services, or within 90 days before or after that period. This presumption affects wills, trusts, deeds, beneficiary designations, and any other transfer without adequate consideration.

The presumption is rebuttable—but only by clear and convincing evidence. This is a heavy burden. The care custodian must prove not just that the transfer was voluntary, but that it was free from fraud and undue influence to a high degree of certainty.

Certificate of Independent Review. California law provides one mechanism for caregivers to rebut the presumption: an independent attorney can counsel the transferor and execute a Certificate of Independent Review (Probate Code Section 21384). However, the CIR process has strict requirements. The attorney must: be independent of the transferee; counsel the transferor about the nature and consequences of the transfer; determine that the transfer is the transferor’s free and voluntary act; and sign a certificate under penalty of perjury. A deficient CIR—one that fails to meet these requirements—does not rebut the presumption.

Double Damages for Bad Faith

California Probate Code Section 859 provides one of the most powerful remedies in elder abuse litigation:

“If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to… an elder… the person shall be liable for twice the value of the property recovered.”

The key elements are: (1) wrongful taking, concealment, or disposal; (2) of property belonging to an elder, estate, or trust; (3) in bad faith. “Bad faith” requires more than mere negligence—it implies intentional wrongdoing or conscious disregard of the elder’s rights.

This remedy transforms marginal cases into viable litigation. A $200,000 taking becomes a $400,000 recovery. When combined with mandatory attorney fees, even moderate-sized cases become economically rational to pursue.

State Variations: Illinois provides for treble damages (three times the value) in certain financial exploitation cases. Other states have various multiplier provisions. Practitioners should identify their jurisdiction’s enhanced damages statute.

Mandatory Attorney Fee Recovery

California Welfare and Institutions Code Section 15657.5 provides:

“Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse… the court shall award to the plaintiff reasonable attorney’s fees and costs.”

The word “shall” is critical. This is not discretionary fee-shifting—it is mandatory upon any finding of financial elder abuse liability. The fee award is in addition to compensatory damages and any enhanced damages under Section 859.

This provision fundamentally changes the economics of elder abuse litigation. It allows attorneys to accept cases on contingency with confidence that fees will be recoverable. It also changes settlement dynamics—defendants face not only damages exposure but also the plaintiff’s mounting attorney fees.

Additional Fee-Shifting: California Probate Code Section 17211(b) provides separate fee-shifting when a trustee “in bad faith” opposes a beneficiary’s accounting request or commits other breaches. This allows recovery of fees even in cases that don’t rise to the level of “elder abuse” under the Welfare and Institutions Code.

Disinheritance Penalties

California Probate Code Section 259 provides that a person found liable for physical abuse, neglect, or financial abuse of an elder “shall not” receive any property from the elder’s estate:

“Any person shall be deemed to have predeceased a decedent… where all of the following apply: (1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or fiduciary abuse of the decedent…”

This is an extraordinary remedy. The abuser is treated as having died before the victim, stripping them of any inheritance they would otherwise receive. If the abuser was named as the sole beneficiary, the estate passes as if that beneficiary predeceased—to alternates, or by intestate succession.

This remedy applies even to otherwise valid estate planning documents. An abuser cannot escape consequences by arguing that the will or trust they obtained through undue influence was “technically” valid.

Multi-Theory Pleading Strategy

Experienced elder abuse litigators never file single-claim complaints. Each available theory provides different remedies, different proof requirements, and different strategic advantages. A typical elder financial abuse petition might include:

1. Trust or Will Invalidation (lack of capacity, undue influence, fraud, improper execution)
2. Trustee Removal and Suspension (if the wrongdoer is serving as fiduciary)
3. Accounting Demand (both a right and a discovery tool)
4. Property Recovery (Probate Code Section 850 petition to recover assets belonging to the trust or estate)
5. Statutory Financial Elder Abuse (triggering mandatory attorney fees)
6. Double Damages (Section 859 for bad faith taking)
7. Common Law Claims (conversion, fraud, breach of fiduciary duty, unjust enrichment)
8. Disinheritance (Section 259 to bar abuser from inheritance)

Filing a single cause of action for “conversion” or “breach of fiduciary duty” leaves significant recovery on the table and misses the fee-shifting provisions that make elder abuse cases economically viable.

Emergency and Preliminary Remedies

Elder financial abuse cases often require immediate relief before full litigation can proceed.

• Asset Freezing. Courts can issue temporary restraining orders and preliminary injunctions preventing further asset transfers while litigation is pending. This is critical when dissipation is ongoing.
• Lis Pendens. For real property, recording a lis pendens provides notice of the pending claim and can prevent sale or refinancing.
• Trustee Suspension. Courts can suspend a trustee’s powers while removal proceedings are pending, appointing a temporary trustee to protect assets.
• Emergency Conservatorship. If the elder is still alive but lacks capacity to protect themselves, emergency conservatorship can provide immediate protection while a permanent arrangement is established.

State Comparison: Enhanced Remedies

Practitioners outside California should identify their state’s equivalent provisions. The absence of statutory remedies doesn’t preclude recovery—common law claims remain available—but it affects case economics and litigation strategy.