Vondran Legal® - Financial Elder Abuse - Business, Real Estate and Intellectual Property Issues Affecting Elders. Call us at (877) 276-5084. Contingency Cases Possible!
Introduction
HISTORY AND IMPORTANCE OF CALIFORNIA FINANCIAL ELDER ABUSE LAWS
California has enacted comprehensive legislation to protect elderly individuals from various forms of financial exploitation, recognizing the vulnerability they may face due to age-related cognitive decline, isolation, or dependency on others. The legislative response to financial elder abuse in California dates back to the mid-1980s. Prior to that, elder financial abuse cases were largely dealt with under general theft and fraud statutes. Recognizing the need for dedicated laws and enhanced protection for this vulnerable group, the legislature began to address the issue more comprehensively.
In 1982, California passed the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), clearly distinguishing elder abuse as a distinct category of harm within the law. However, it wasn't until 1991 that the Financial Elder Abuse Reporting Act (FEAR Act) was enacted, specifically targeting financial exploitation of seniors.
The legislative history of California's financial elder abuse laws evinces a strong intent to combat exploitative practices and hold perpetrators accountable. The FEAR Act was enacted with the primary objective of establishing mandatory reporting requirements for suspected instances of elder financial abuse. It aimed to facilitate timely intervention and interagency cooperation to protect senior citizens from further harm. Furthermore, the Elder Abuse and Dependent Adult Civil Protection Act was subsequently modified in 1994 to include specific provisions related to financial elder abuse. This amendment sought to streamline remedies available to victims and impose both civil and criminal liability on perpetrators.
In conclusion, the history of the California financial elder abuse laws demonstrates a commitment by the legislature to protect the elderly from financial exploitation and enhance their overall well-being. These laws are instrumental in providing critical protections, mandating reporting, enabling legal remedies, and reinforcing public awareness to combat and prevent financial abuse against the elderly. As the elderly population continues to grow, the significance of these laws in safeguarding their financial interests cannot be understated.
California financial elder abuse law
The California financial elder abuse laws are crucial for several reasons:
1. Protection: These laws provide essential safeguards for the elderly, ensuring that they are protected from financial exploitation, fraud, and undue influence. They help preserve their financial security, dignity, and independence.
2. Awareness and Reporting: The laws incorporate mandatory reporting requirements, compelling certain professionals, such as financial institutions, health practitioners, and law enforcement personnel, to report suspected cases of financial abuse promptly. This facilitates identification and intervention in situations where elderly individuals may be suffering silently.
3. Remedies and Liability: California's financial elder abuse laws establish civil remedies, such as the ability to seek damages, restitution, attorney's fees, and injunctive relief. They provide a legal recourse for victims to recover their losses and hold their perpetrators accountable. Additionally, criminal penalties can be imposed, acting as a deterrent against potential abusers.
4. Prevention and Education: These laws emphasize the importance of preventive measures and public education aimed at increasing awareness and vigilance concerning financial elder abuse. The laws promote training programs and research to develop effective strategies for identifying, preventing, and addressing such abuse.
Proving Undue Influence in Financial Elder Abuse Cases
Under California Welfare & Institutions Code
Statute of Limitations is generally 4 years
To state a private cause of action for elder abuse, the plaintiff must plead facts showing two elements:
(1) the defendant has subjected an elder to statutorily defined physical abuse, neglect or financial abuse;
and
(2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (Welfare & Inst. Code, § 15657.)
Claims for elder abuse are subject to a limitations period of four years from the discovery of facts constituting financial elder abuse. (Welfare & Inst. Code, § 15657.7; see also Dennison v. Rosland Capital LLC (2020) 47 Cal.App.5th 204, 212.)
Welfare and Institutions Code section 15610.30 provides that "financial abuse of an elder occur[s] when property [is] taken for a wrongful use, or with intent to defraud, or by undue influence as defined in Civil Code section 1575. (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1355.) Civil Code section 1575 defines undue influence as:
(1) In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) In taking an unfair advantage of another's weakness of mind;
or,
(3) In taking a grossly oppressive and unfair advantage of another's necessities or distress." (Civ. Code, § 1575.)
"[A]n action to set aside a deed upon the ground of undue influence [is] governed by the four-year period of limitation prescribed in section 343 of the Code of Civil Procedure." (Dunn v. Los Angeles County (1957) 155 Cal.App.2d 789, 805.
Ackerman v. Zimmerman, 2023 Cal. Super. LEXIS 47269, *7-8Cases we consider
Here's a list of potential legal issues related to Business, Real Estate, and Intellectual Property that could potentially lead to financial elder abuse cases under California law (this is not an exclusive list):
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Fraudulent Investment Schemes: Seniors may be targeted with fraudulent investment opportunities, such as Ponzi schemes or unregistered securities offerings and crypto, blockchain and NFT scams.
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Predatory Lending Practices: Elderly individuals may be subjected to predatory lending practices when seeking financing for business ventures or real estate transactions. This can include new technologies that involve "peer-to-peer" lending and DeFi.
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Contract Disputes: Disputes over business contracts or real estate agreements may arise, potentially leading to allegations of financial exploitation if one party takes advantage of the elder's vulnerability. For example, an elderly partner in a business that gets locked out of a YouTube account.
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Undisclosed Fees or Charges: Seniors may be deceived by undisclosed fees or charges related to a wide variety of business services, real estate transactions, or intellectual property agreements. Here is a blog I wrote about financial elder abuse in California real estate transactions.
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Misrepresentation of Property Values: Misrepresentation of property values or other material facts during real estate transactions could result in financial losses for elderly individuals. Also, willful failure to disclose material facts in a real estate transaction, in bad faith, may also be grounds to file a lawsuit.
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Intellectual Property Infringement: Seniors may face issues related to the infringement of intellectual property rights, such as patents, trademarks, or copyrights, which could lead to financial losses if not addressed properly. Other issues may include abusing the rights of an elderly musician, rights of elder heirs, or other related acts directed toward the elderly and their intellectual property rights. For example, fraudulently inducing them to sign a transfer of a copyright, trademark, trade secret or a patent.
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Breach of Fiduciary Duty: Fiduciaries entrusted with managing an elder's business interests, real estate holdings, or intellectual property may breach their duty, leading to financial harm. Many times this can arise with a family member or a "caretaker" who gets greedy and hatches a plan to fleece the elder of their assets or their rights.
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Coercive Business Practices: Coercive tactics employed by business partners or real estate agents to manipulate elderly individuals into unfavorable agreements may constitute financial elder abuse.
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Forgery or Fraudulent Transfers: Forged signatures or fraudulent transfers of property or intellectual assets could result in financial losses for seniors.
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Mismanagement of Assets: Negligent or intentional mismanagement of business assets, real estate properties, or intellectual property could lead to significant financial harm for elderly individuals.
It's important to note that each case is unique, and whether a particular situation constitutes financial elder abuse under California law would depend on various factors, including the specific circumstances and intent of the parties involved. Consulting with a qualified attorney experienced in elder law would be advisable for individuals facing such legal issues.
Contact a Financial Elder Abuse Law Firm
We can be reached at (877) 276-5084. You may also fill out the contact form. We have handled a wide variety of financial elder abuse cases since our founding in 2004.
