Proving Elder Financial Abuse in California
- August 12, 2016 - Elder Financial Abuse,
California financial elder abuse claims have exploded in the last couple of years. Success in civil courts on these claims is dependent upon proof. So how do you prove a financial elder abuse claim when the victim (the elder) has died?
We start with the factual elements of a claim. California jury instructions provide a guide for these elements. That said, it is recognized that even these instructions are not intended to cover every circumstance in which a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act. In a general sense, factual elements begin with showing: that an individual (and/or his/her assistant) took/hid/appropriated/obtained/ [or] took the decedent’s property; the victim (the decedent) was 65 years of age or older; the taking was for a wrongful use with the intent to defraud or by undue influence; and the decedent was harmed.
To find liability, the plaintiff must prove by a preponderance of evidence to a judge or jury that the defendant committed financial elder abuse. Once this standard is met, the court “shall award to the plaintiff reasonable attorney’s fees and costs.”
The simplest way to explain preponderance of evidence is that the evidence on one side outweighs the evidence on the other side. In civil trial, the plaintiff is only required to prove only that something is more likely to be true than not true. There are higher standards of proof when punitive damages are sought.
As a practical matter, wrongdoers have a big credibility gap to overcome. They may have an uphill battle in showing positive facts in the abuser’s evidence column.
If you have a financial elder abuse claim against a wrongdoer and would like to discuss your options, give us a call at Hackard Law at (916) 313-3030. We are happy to speak with you.
Attorney Michael Hackard
Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]
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