California Law on Elder Abuse
Before we opened our private practice, Teresa and I were legal aid attorneys at a non-profit organization that exclusively served older adults. Many of our clients there were victims of elder abuse. The abuse was physical, emotional, financial—often a combination. In cases of severe, ongoing abuse, we sometimes represented clients in court to obtain restraining orders. We also coached clients through other options, like extricating the abuser (and sometimes their hoarded belongings) from the client’s home and life, getting assistance from Adult Protective Services, or working with the police to pursue restitution through the criminal courts.
Our driving motivation for opening a private firm was that we wanted to do something that was outside the non-profit’s remit: pursue civil lawsuits seeking money damages for clients who had suffered financial abuse or other types of abuse that were eligible for court-ordered compensation. The statutory basis for such suits is California’s Elder and Dependent Adult Civil Protection Act (“EADACPA”) (California Welfare & Institutions Code Section 15600 et seq.).
EADACPA creates a robust framework aimed at protecting adults who are 65 or over, as well as disabled adults of all ages, from a wide variety of abuses. However, when you are the victim of elder or dependent adult abuse—which I’ll group together as “elder abuse” for brevity’s sake—it may not be obvious that abuse is what you are experiencing. And if you don’t know you’re a victim of elder abuse, you certainly don’t know how to avail yourself of the help that EADACPA can offer.
The purpose of this post is to delve into how the law defines elder abuse, so that you can assess whether you or someone you know is a victim of such abuse. What follows is a list of harmful behaviors that fall under the elder abuse umbrella.
Physical abuse, which includes assault, battery, sexual assault and both physical and chemical restraint (drugging).
Abandonment or neglect by a caregiver. Neglect can include failure to assist in personal hygiene; failure to provide food, clothing, shelter or medical care; failure to protect the victim from health and safety hazards; and failure to prevent malnutrition or dehydration.
Isolation, which includes
Intentionally preventing the victim from receiving their mail or phone calls.
Falsely telling a visitor or caller that the victim isn’t home (or doesn’t want to see, talk to or meet with the visitor or caller) to prevent the victim from having contact with family, friends, or other concerned people.
False imprisonment, defined in the Penal Code as “the unlawful violation of the personal liberty of another.”
Physical restraint for the purpose of preventing the victim from meeting with visitors.
Abduction, which occurs when a caregiver removes the victim from the state or prevents them from returning to the state, if the elder or dependent adult lacks the capacity to consent to that removal or restraint. It is also abduction to remove from the state (or prevent from returning) any conservatee, without the conservator’s or court’s consent.
Deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
Financial abuse, which is taking—or assisting someone else in taking—real or personal property for a wrongful use, and/or with intent to defraud, and/or by undue influence.
Other treatment with resulting physical harm or pain or mental suffering, where “mental suffering” is defined as “fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.”
(Source: California Welfare & Institutions Code sections 15610.05-07, -30, -43, -53, -63 and -75, and Penal Code section 236.)
Reading through this list, you might have noticed that the final item, “other treatment with resulting physical harm or pain or mental suffering,” is something of a catch-all. This gives judges wide latitude to find that harmful treatment of an elder or dependent adult constitutes abuse—and therefore merits the award of money damages, a restraining order, or other relief.
If you believe that you or a loved one has been the victim of elder or dependent adult abuse in Santa Clara County and would like to explore your legal options, contact Caplan Wilkinson for a consultation.
