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  • © The Regents of the University of California, 2010-2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Greed, Elder Abuse, or Both?

A lottery win has spawned a financial elder abuse claim: A mother is accusing her son of stealing her $51 million lottery jackpot. As ABCnews.com reports, financial elder abuse is a growing problem and, this lottery case notwithstanding, often in the shadows because the elderly are too embarrassed to admit they’ve been scammed.

Financial elder abuse claims revolve around questionable transfers obtained from the elder, most commonly occurring during a decline in the elder’s health and/or near the end of life. Under California’s Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §§15600-15675), financial elder abuse occurs when a person or entity does any of the following (Welf & I C §15610.30):

  • Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with the intent to defraud, or both.
  • Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
  • Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in CC §1575.

The broad definition of financial abuse makes the EADACPA applicable to causes of action such as fraud, constructive fraud, conversion, and unfair business practices perpetrated by any person or entity against an elder or dependent adult.  The most common types of financial elder abuse include theft, fraud, misuse or neglect of authority, and/or the use of undue influence to gain control over an elder’s money or property. But undue influence isn’t a prerequisite for financial elder abuse; any act by which an individual uses, for his or her benefit, the resources of an elder without the elder’s consent is considered financial elder abuse, regardless of the elder’s mental or physical capacity.

In the lottery case, the elderly mother was allegedly so overwhelmed by winning that she couldn’t sign her name to endorse the winning ticket and asked her son to sign his name to it. In the local news report on BakersfieldNow.com, the mother claims that her son has used the money to buy multiple homes, cars, and other items, and has put millions into accounts that she cannot access. The mother’s attorney has obtained a Temporary Protective Order freezing all assets and accounts.

Obtaining a protective order under the EADACPA is an important first step when representing an elder in these situations. A trial court may issue a protective order to prevent a “recurrence of abuse, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.”

It remains to be seen whether the son in the lottery case will be found to have committed financial elder abuse. But regardless of outcome, this case has put a needed spotlight on this issue and has shown that the law is in place to protect the elderly in these situations.

For excellent coverage of the issues involved in litigating financial abuse actions, turn to CEB’s California Elder Law Litigation: An Advocate’s Guide, chap 6A. Also check out CEB’s California Trust and Probate Litigation, chap 8, on remedies under the elder abuse provisions. CEB has an excellent program on the issue as well, Elder Law: Remedies for Financial Abuse, available On Demand.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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