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Financial Abuse and Undue Influence
Elder financial abuse at its most basic is any type of theft or embezzlement of either money or property from an elder person, recognized in California as any person 65 years of age or older. Elder persons, due to the higher likelihood of diminished mental and physical capacity, are more susceptible to caregivers, family, and others close to them misusing their finances and assets. Individuals who have established a relationship of trust with an elderly person may eventually abuse it for their own pecuniary gain.
All too often, financial planners, insurance agents, friends, and even strangers take advantage of the elderly by pretending to have their best financial interests at heart before crossing the line into a financially abusive relationship. Some of the most common abuses include stolen cash and stolen income checks, identity theft, and misuse of personal checks, credit cards, and bank accounts. This predatory behavior for pecuniary gain needs to be better examined, as it costs elderly people over $3 billion annually.California Statutory Prohibitions Against Elder Financial Abuse Elder and Dependent Financial Abuse Prohibition
California has recognized the vulnerable nature of the elder persons and enacted specific laws to protect them from exploitation and abuse. These laws are designed to create bestow financial responsibility for damages upon anyone who:
- Takes, steals, obtains, or keeps an elderly person’s real property or personal property for a wrongful use or with intent to defraud or assists in doing so; or
- Uses undue influence to perpetrate this act.
Real property (or real estate) refers to land or structure on land like a house, while personal property is all other property the elder owns. The victim must also prove that the whomever allegedly engaged in elder financial abuse either knew their actions were likely to harm the elder or else should have known that harm was likely to result.
It should be understood that just because an elderly individual was party to a transaction that resulted in a financial loss on their part does not definitively mean financial abuse has occurred.Undue Influence
California law also pays particular attention to the common problem of elder financial abuse occurring as a result of the perpetrator’s undue influence over the victim and has codified a definition for it in civil statutes. Undue influence occurs when:
- Someone the elder has placed confidence in or who given authority to uses their position to secure an unfair advantage over the elder;
- Someone takes an unfair advantage over the elder’s mentally depreciated state; or
- Someone recognizes an elder is at a disadvantage and needs help or other aid, then capitalizes on the situation to unfairly take advantage of them.
The courts may consider factors such as the elder’s vulnerability, the influencer’s apparent authority, actions, and tactics, and the unfairness of the result on the elder in determining whether undue influence has occurred.
Undue influence can, for example, be seen when a caregiver has control over an elder person’s finances and uses this advantage for their own monetary gain, or when an elder individual provides excessive money or gifts in exchange for care or companionship to someone for whom they have an extreme emotional attachment. However, just because there is evidence an elder has lost money or experienced a financially disadvantageous result in a transaction does not itself prove elder abuse.Broad Application of the Elder Financial Abuse Law
The law prohibiting elder financial abuse is intended to be construed broadly to ensure that taking or misappropriating an elder’s property is not restricted to physically removing property from their possession. California law has expanded taking to include depriving an elder of any property right at all, even if the elder has retained a representative to hold that right on their behalf.Recoverable Damages for Elder Financial Abuse
The law provides for recovery of several types of damages upon a showing of elder financial abuse. An elder or family whose loved ones were injured may be awarded:
- Compensatory damages for economic injuries;
- Compensatory damages for non-economic damages including pain and suffering and infliction of emotional distress; and
- Punitive damages when a victim can demonstrate by clear and convincing evidence the defendant acted with fraud, oppression, or malice.
If your loved one has fallen victim to someone that took advantage of them financially or engaged in financial fraud, you should contact a lawyer without delay. Our experienced elder abuse attorneys can discuss your unique claim with you, advise you about your rights, and advocate aggressively on your behalf to achieve the best possible outcome in your case.
For a free and confidential consultation with an experienced financial elder abuse attorney, please call us directly at (866) 338-7079, or click here to submit your inquiry online.