What is Elder Abuse?
Elder abuse is simply any abuse or harm to any person residing in California that is over the age of 65. The term “abuse” is defined very broadly, some might say too broad. Obviously, physical abuse of an elder is included, but it's much broader than that. It includes “neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering”. (See Welfare & Institutions Code §15610.27)
"Financial abuse” is also very broad, and can simply be taking any property from an elder for a “wrongful use”. The use is broadly defined as “wrongful” if you knew or should have known that the taking of the property would be harmful to the elder. If you know that receiving property from an elder will reduce his or her net worth, then, in effect, your taking of that gift could be wrongful.
This definition means that if an elder gives you have $20.00 cash as a gift, then you might have committed elder abuse. Seems silly, right? We have seen judges find that elder abuse had been committed simply by receiving a cash gift. Typically, the defense of consent is applicable to protect the alleged elder abuser, but not always.
You might have the defense of consent, and thereby escape liability, but proving that defense can be difficult unless you have saved records. This becomes more difficult to prove as time goes on if records have not been properly maintained. There may be other defenses applicable, depending on the circumstances.
While financial elder abuse can occur in many different ways, a few common examples include:
- Joint bank accounts
- Lack of transparency with close family members or post-death beneficiaries by an agent or trustee
- Irregular transfers of assets, typically to a family member, close friend, or recent friend
- Substantial loans taken out without explanation or under suspect circumstances (i.e., no apparent reason for a loan)
- Large cash withdrawals, typically close together
If any of these examples apply to you, or you are concerned about a potential elder abuse claim being brought against you, you should consult with an attorney right away to ensure that you protect your rights and understand what steps you can take to mitigate the risk of an elder abuse claim.
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