Choosing the Appropriate Elder Abuse Civil Protective Order

GettyImages-940320528 (1)Unfortunately, elder abuse is a much more rampant problem than we’d like to admit. In fact, studies show that approximately 10 percent of Americans aged 60 or over have experienced some form of elder abuse.

For attorneys with older or at-risk clients, it’s important to keep in mind the different protective orders available and to select the most appropriate order to ensure your client’s ongoing safety and welfare.

Criminal Protective Orders. As a preliminary matter, criminal courts may issue protective orders when the defendant is charged with a crime involving elder abuse. Criminal protective orders typically: (1) enjoin specified conduct; (2) prohibit communications with the protected persons; (3) order that the defendant not come within a specified distance of the protected person; and/or (4) require the defendant to relinquish any firearm owned or subject to his or her immediate possession or control. Pen C §§136.2, 1203.097; CCP 527.9(b). In some jurisdictions, a criminal protective order may also require the defendant to be placed on electronic monitoring for up to 1 year. Pen C §136.2.

Law enforcement officers may also request an emergency protective order if they reasonably believe that a person is in immediate and present danger of elder abuse. Pen C §646.91.

Civil Protective Orders. There are also several civil protective orders available to a victim of elder abuse. And, the issuance of a criminal order doesn’t preclude the issuance of a civil order (though special rules apply to the priority of enforcement). The relief available differs among the types of civil protective orders, but can provide the enjoining of specified conduct, residence exclusions, stay-away orders, and firearm relinquishment, among other remedies.

Civil protective orders available to victims of elder abuse include:

  1. Elder Abuse Restraining Orders under Welf & I C §15657.03 of the Elder Abuse & Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §§15600–15675);
  2. Domestic Violence Restraining Orders under the Domestic Violence Prevention Act (DVPA) (Fam C §§6200–6389); and
  3. Civil Harassment Restraining Orders under CCP §527.6.

Selecting the Appropriate Civil Order. Determining the appropriate order requires careful consideration of a variety of factors, including the age of the abused elder, the nature of the abuse, the relationship between the parties, and the relief sought. For instance, the Domestic Violence Restraining Order only covers abuse by close relatives and other specified categories of individuals. There is no relationship requirement for a Civil Harassment Restraining Order, but the relief available is relatively limited.

Although far from comprehensive, the following chart may provide some guidance to help you select the appropriate order:

Protective Order Age of Abused Elder Relationship of Parties Type of Abuse Relief Available
Elder Abuse Restraining Order (Welf & I C §15657.03) Abused elder must be either:

65 years of age or older; or

A “dependent adult” under Welf & I C §15610.23.

No relational requirement. Elder or dependent adult abuse, including:

Any treatment resulting in physical harm, pain, or mental suffering, including physical abuse, neglect, abandonment, isolation, or abduction;

Deprivation of necessary goods or services by care custodian; or

Financial abuse under Welf & I C §15657.03

Enjoining specified conduct;

Stay-away orders;

Orders protecting animals;

Firearm relinquishment, except in purely financial abuse cases;

Residence exclusions (move-out orders), except in purely financial abuse cases.

Domestic Violence Restraining Orders (Fam C §§6200–6389) No age requirement. Abused elder and abuser must be:

Married or formerly married;

Cohabitants or former cohabitants;

Dating or formerly dating;

Co-parents; or

Related by blood or marriage within the second degree.

Domestic violence, defined as abuse perpetrated against persons with whom perpetrator has a specified relationship, including:

Intentionally or recklessly causing or attempting to cause bodily injury;

Sexual Assault;

Placing another person in reasonable apprehension of imminent serious bodily injury to that person or another; or

Other conduct that has been or could be enjoined under Fam C §6320.

Note that abuse is not limited to actual infliction of physical injury or assault.

Enjoining specified conduct;

Stay-away orders;

Orders protecting animals;

Residence exclusions (move-out orders);

Firearm relinquishment;

Property control orders;

Permission to record prohibited communications from restrained person;

Requiring participation in batterer’s program;

Restitution.

Civil Harassment Restraining Orders (CCP §527.6) No age requirement. No relational  requirement.

Harassment, which includes:

Unlawful violence;

Credible threat of violence; or

Knowing and willful course of conduct directed at specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.

Enjoining specified conduct;

Stay-away orders;

Orders protecting animals;

Firearm relinquishment.

In addition to pursuing a protective order, counsel should help the client develop an interim safety plan. Counsel may also encourage the client to contact Adult Protective Services for additional support, counseling, and other resources. Advise the client to call 911 in an emergency and inform the client about a law enforcement officer’s ability to request an emergency protective order.

For detailed guidance on the availability and procedural requirements of the various elder abuse protective orders, consult CEB’s California Elder Law Litigation: An Advocate’s Guide, chap 8. To learn more on representing elderly clients, see CEB’s California Elder Law Resources, Benefits, and Planning: An Advocate’s Guide and our on-demand program series,  Elder Law Fundamentals (also available for individual purchase).

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. 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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