California's statute on elder abuse is set forth in its Welfare and Institutions Code, and it has great significance in the ownership of real property because the elderly, and many others for that matter, are easily deceived as to the true meaning of real estate transactions and documents and can easily become financial victims. The area of real estate has its own vocabulary and specialized documents that require preparation specific to each transaction, and the detrimental effect of executing a fraudulent document can be catastrophic to the finance health of the elder abuse victim.
The California Legislature acted to protect elders by providing enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.An“elder” means any person residing in California who is 65 years of age or older. (§ 15610.27)
Abuse of an elder or dependent adult includes financial abuse, and the financial abuse provisions are, in part, premised on the Legislature’s belief that in addition to being subject to the general rules of contract, financial agreements entered into by elders should be subject to special scrutiny.
Financial abuse occurs when a person or entity does any of the following:
1. Takes, secretes, appropriates, obtains, or retains real property of the victim for a wrongful use or with intent to defraud, or both.
2. Assists in taking, secreting, appropriating, obtaining, or retaining real property of the victim for a wrongful use or with intent to defraud, or both.
3. Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real property of a victim by undue influence. (§ 15610.30)
“Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity, and it can take many forms. (§ 15610.70)
In determining whether a result was produced by undue influence, all of the following shall be considered:
1. The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
2. The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
3. The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
a. Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
b. Use of affection, intimidation, or coercion.
c. Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
4. The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. However, evidence of an inequitable result, without more, is not sufficient to prove undue influence.
The defendant is deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the defendant knew or should have known that this conduct was likely to be harmful to the victim.
The taking occurs when the victim is deprived of any property right, including by means of an agreement, will, or trust, regardless of whether the property is held directly or by a representative of the victim. A “representative" includes a conservator, trustee, or other representative of the estate of the victim, and an attorney-in-fact who acts within the authority of the power of attorney.
If it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, in addition to compensatory damages and all other remedies otherwise provided by law, the court is required to award to the plaintiff reasonable attorney’s fees and costs, which include reasonable fees for the services of a conservator devoted to the litigation of an elder abuse claim. (§ 15657.5(a))
If it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, and it is proven by clear and convincing evidencethat the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, the limitations imposed on recovery after death do not apply. (§ 15657.5(b))
In addition to compensatory damages (e.g., loss of value of real property or interest therein), the plaintiff can request an award of punitive damages.
Any money judgment for elder abuse must include a statement that the damages are
awarded based on a claim for financial abuse of an elder or dependent adult, and if only part of the judgment is based on that claim, the judgment shall specify what amount was awarded on that basis.
An action for financial abuse must be commenced within four (4) years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.
Whether such a claim is appropriate in a specific case requires through consideration of many factors and issues that can be provided by an attorney experienced in the many forms of elder abuse regarding real estate transactions.
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