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Elder Abuse Articals

"IMPORTANT AMENDMENTS TO CALIFORNIA'S ELDER ABUSE STATUTE STRENGTHEN VICTIMS'
RIGHTS TO HOLD ABUSERS ACCOUNTABLE"

Alameda County Bar Association Magazine 39:3 at 29-31
(Summer 2008)*


By Felicia C. Curran


Elder advocates welcome the addition of new laws, effective in 2008, that extend the reach of The California Elder Abuse and Dependent Adult Civil Protection Act, Cal. Welf. & Inst. Code §§ 15600-15660 et seq, (EADACPA).


1. Who Has Standing to Bring An Elder Abuse Lawsuit After the Elder’s Death?


EADACPA creates civil liability for physical and financial abuse, neglect, or abandonment of elderly and dependent adults. EADACPA was amended effective January 1, 2008, to expand and clarify the list of who may bring a lawsuit for abuse, abandonment, or neglect after the death of the abused or neglected elder. EADACPA previously provided that after the elder’s death, the right to bring a lawsuit on the deceased’s behalf transfers to deceased’s personal representative, or if there is none, to the person or persons entitled to succeed to the decedent’s estate. See Welfare & Institutions Code Section 15657.3(d). Yet, what if there is a personal representative, but that person does not wish to pursue an elder abuse lawsuit, even though other family members do? Or, worse still, what if the deceased was a victim of abuse by the personal representative? Or the personal representative used undue influence over the elder to have him- or her-self appointed as personal representative? In such cases, the very person who would be a defendant in the elder abuse lawsuit has the power, as personal representative, to block the lawsuit from going forward.


A case in point is Estate of Lowrie (2004) 118 Cal.App.4th 220. There, a son of the deceased elder, Laura Marie Lowrie, was appointed her first successor trustee. Laura Marie’s granddaughter was second successor trustee and beneficiary. After Laura Marie's death, her granddaughter filed an elder abuse lawsuit against the son, seeking findings that he had abused Laura Marie prior to her death. The court found that the son had financially and physically abused his mother, and awarded damages to the granddaughter. The son appealed, contending the granddaughter had no standing to bring an elder abuse lawsuit, because he was his mother’s personal representative, and thus, the only person empowered under EADACPA to bring a elder abuse lawsuit.


The Court of Appeal held that the granddaughter did have standing to sue as a plaintiff under EADACPA, and that the standing provisions of EADACPA must be read so as to “deter, not encourage elder abuse.” The Lowrie case is frequently used by lawyers representing families to provide a basis to pursue elder abuse cases on behalf of family members other than the deceased’s personal representative. The amendments to EADACPA will codify the Lowrie court's holdings and provide more flexibility to family members who wish to pursue elder abuse lawsuits after the elder’s death. The text of the new statute, which takes effect January 1, 2008, is as follows:


Welfare and Institutions Code § 15657.3.


(a) The department of the superior court having jurisdiction over probate conservatorships shall also have concurrent jurisdiction over civil actions and proceedings involving a claim for relief arising out of the abduction, as defined in Section 15610.06, or the abuse of an elderly or dependent adult, if a conservator has been appointed for plaintiff prior to the initiation of the action for abuse.


(b) The department of the superior court having jurisdiction over probate conservatorships shall not grant relief under this article if the court determines that the matter should be determined in a civil action, but shall instead transfer the matter to the general civil calendar of the superior court. The court need not abate any proceeding for relief pursuant to this article if the court determines that the civil action was filed for the purpose of delay.



(c) The death of the elder or dependent adult does not cause the court to lose jurisdiction of any claim for relief for abuse of an elder or dependent adult.


(d) (1) Subject to paragraph (2) and subdivision


(e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:


(A) An intestate heir whose interest is affected by the action.


(B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.


(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, "an interested person" does not include a creditor or a person who has a claim against the estate who is not an heir or beneficiary of the decedent's estate.


(d)(2) If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate, as those terms are defined in subdivision © of Section 1064 of the Probate Code, is alleged to have committed abuse of the elder or dependent adult, the persons described in subparagraphs (A),(B), and © of paragraph (1) shall have standing to commence or maintain an action for elder abuse. Nothing in this paragraph shall require the court to resolve the merits of an elder abuse action for the purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and © of paragraph (1) has standing to commence or maintain such an action.


(e)If two or more persons who are either described in subparagraphs (A), (B), or (C) of paragraph (1) of subdivision


(d) or a personal representative claim to have standing to commence or maintain an action for elder abuse, upon petition or motion, the court in which the action or proceeding is pending, may make any order concerning the parties that is appropriate to ensure the proper administration of justice in the case pursuant to Section 377.33 of the Code of Civil Procedure.


(f) This section does not affect the applicable statute of limitations for commencing an action for relief for abuse of an elderly or dependent adult.”


The amendment will provide the flexibility needed to give interested family members the ability to bring elder abuse lawsuits and hold wrongdoers accountable. Lawsuits for the wrongful death of the elder or dependent adult, which are brought by the deceased’s heirs, will continue to be governed by Code of Civil Procedure §377.60.


2. Plaintiffs In Financial Elder Abuse Lawsuit May Seek Writ of Attachment Against Funds Misappropriated by Defendant and Defendants’ Own Funds.


One of the biggest obstacles to financial elder abuse lawsuits is that the stolen funds may be gone by the time a judgment is obtained against the abuser. Indeed, previously there was nothing to prevent a defendant in a financial elder abuse lawsuit from using the monies he misappropriated from the elder to pay for his attorney fees to defeat the elder abuse lawsuit in which he is a defendant. Writs of attachment, in which a plaintiff has a lien on the defendants’ assets until final adjudication of the claims, were governed by Code of Civil Procedure §483.010, and generally limited to commercial breach of contract actions. Senate Bill 611, enacted as Cal Wel & Inst §15657.01, changes all that. It provides:


Notwithstanding Section 483.010 of the Code of Civil Procedure, an attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30. The other provisions of the Code of Civil Procedure not inconsistent with this article shall govern the issuance of an attachment pursuant to this section. In an application for a writ of attachment, the claimant shall refer to this section. An attachment may be issued pursuant to this section whether or not other forms of relief are demanded.


All of the pretrial procedures associated with writs of attachment, such as temporary protective orders and debtor’s examination of assets apply. See CCP §§ 481.010-493.060. Senate Bill 611 is expected to strengthen enforcement of the financial abuse provisions of EADACPA You can expect plaintiffs lawyers in financial elder abuse lawsuits to routinely seek writs of attachment at the beginning of the case, to preserve their clients’ ability to collect a judgment.


*This article may be reprinted only with the Permission of the Alameda County Bar Association

Many nursing homes maximize their own profits at the expense of their highly vulnerable elderly and disabled residents.
National Senior Citizens Law Center
Many nursing homes maximize their own profits at the expense of their highly vulnerable elderly and disabled residents.
National Senior Citizens Law Center
Many nursing homes maximize their own profits at the expense of their highly vulnerable elderly and disabled residents.
National Senior Citizens Law Center
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