When most people hear about elder abuse, they think of cruel or apathetic caregivers leaving elderly family and friends unattended or physically abusing them. But elder abuse is more than physical abuse: when someone takes any property – including real estate, cash, or any other asset or interest – from a person over the age of 65 by fraud or undue influence, it constitutes financial elder abuse.
Financial elder abuse includes more than simple theft. It includes a trustee taking assets from a trust held for the benefit of a person over 65, a family member or friend convincing someone over 65 to change his or her estate plan, or a con man swindling someone over 65 out of his or her money in a shady investment.
California law protects anyone over 65 (as well as adults under 65 with significant physical or mental limitations) from financial abuse. The Legislature created a specific claim that allows persons over 65 – or people authorized to file claims on their behalf during their lifetime or after their passing – to pursue these claims. Among other remedies, they may (1) attempt to put a lien on assets of the abuser, (2) obtain the actual value taken, (3) obtain punitive damages, (4) obtain attorney’s fees, and (5) seek to disinherit the abuser under certain circumstances.
The goal of the Legislature in creating the statute was to empower the elderly and their advocates to fight to protect themselves, and to provide a stronger avenue of recourse against those that target some of the most vulnerable members of our community. By providing strong remedies, persons over 65 that were the victim of financial elder abuse have more leverage than they may realize to fight back and restore what has been taken from them.
Is this a good time to update your estate plan? Any time is a good time for review, and an unanticipated consequence of Sheltering in Place may be that individuals will do so.
The Epidemic of Financial Elder Abuse & Undue Influence
Married couples often don’t give much thought to the characterization of their property as community or separate. In general, community property is all real or personal property acquired by a married person during the marriage. Separate property is all property owned by the person before the marriage, all property acquired by the person after marriage by gift, bequest or devise, and the rents and profits from the person’s separate property.