Financial Elder and Dependent Adult Abuse – A Primer For Litigators

Bookmark and Share

Financial abuse of an elder or dependent adult is proscribed by the Elder Abuse and Dependent Adult Civil Protection Act, codified in Chapter 11 of the California Welfare and Institutions Code (“the Act”). Passed in 1982, the focus of this Act, sometimes referred to as EADACPA, is “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.”[1] Historically, elder or dependent adult abuse was rarely litigated “due to problems of proof, court delays, and the lack of incentives to prosecute these suits.”[2] With the passage of the Act, the California legislature created a broad, powerful statute that “enable[d] interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.”[3] Although the stated purpose of the Act is to prevent specific, quasi-secretive abuse of elderly persons or disabled adults, its broad wording,  coupled with the near automatic award of attorney’s fees and costs, makes this Act not only a necessary addition to an appropriate complaint, but an invaluable tool in increasing the defendant’s exposure.

This article is designed to provide an overview of the usefulness of EADACPA. It will discuss the elements of a claim, the remedies available, and most importantly, practical applications of financial elder and dependent adult abuse beyond the realm of typical elder abuse cases. This article is not a comprehensive analysis. However, it will hopefully provide a primer for attorneys not versed in this area of law, and will add to their litigation toolbox.

What is Financial Abuse?

Financial abuse occurs when a person (1) takes, secretes, appropriates, obtains, or retains; (2) the real or personal property; (3) of an elder or dependent adult; (4) for a wrongful use or with intent to defraud, or both.[4] A person is equally liable for financial elder abuse if they “assist” another in doing any of the above.[5]

The first two elements, taking, secreting, appropriating, obtaining, or retaining the real or personal property, are straightforward. In a common scenario, this would occur when a caregiver forges a check to herself from the elder’s account or a sibling misappropriates the inheritance of his disabled adult sibling. However, as discussed infra, these two elements can lead to broad-reaching applications of this statute.

The third element is also straightforward.  An elder is “any person residing in [California], 65 years of age or older.”[6]  A dependent adult is more broadly defined. The definition includes:

any person residing in [California], between the ages of 18 and 64 years, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age.[7]

Thus, under California law, a person is a dependent adult if he is within the stated age range and suffers from “chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease” provided the mental or psychological problem creates a “limitation” upon a major life activity.[8] While this definition permits broad inclusion of disabled or otherwise dependent plaintiffs to recover for abuse, at least one court has limited the interpretation of dependent adults “only to persons whose disabilities and needs are comparable to persons who are compelled to live in nursing homes and other health care facilities.”[9]

The fourth and final element is the most complex. To demonstrate that property was taken, secreted, appropriated, obtained, or retained for a wrongful use or with intent to defraud, or both, a plaintiff can proceed two ways. First, the plaintiff can attempt to demonstrate fraud, in which case he must plead fraud with particularity. Second, and much more simply, the statute provides that “wrongful use” can be established by demonstrating that the person “knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.”[10]

In order to avail oneself of the remedies under these statutes, a demand for the return of property should first be sent.[11] While there do not appear to be any cases directly discussing this requirement, the language of the statute, as well as the California Civil Jury Instructions, suggest that a formal demand is a prerequisite to establishing liability.[12]

What are the Remedies for Financial Elder or Dependent Adult Abuse?

There is both pre-judgment and post-judgment relief for financial elder or dependent adult abuse.

The Legislature, in furthering the purpose of protecting elders and dependent adults from financial abuse, authorized the use of writs of attachment in cases of financial elder abuse.[13] While writs of attachment are generally limited in the types of claims to which they can be applied,[14] plaintiffs may seek a writ of attachment “whether or not other forms of relief are demanded.”[15] Thus, the exclusion of the availability of writs of attachments in certain cases, such as those described in California Code of Civil Procedure section 483.010, is superseded by the language of California Welfare and Institutions Code section 15657.01, making writs of attachment available on all property in financial elder and dependent adult abuse actions in which damages are sought pursuant to California Welfare and Institutions Code section 15657.5.

Post-judgment relief also favors the elder or dependent adult: “in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff the reasonable attorney’s fees and costs” to an elder or dependent adult who prevails on a claim of financial abuse.[16] The award of costs includes the costs of a conservator for purposes of the litigation.[17]

Further, if it is shown by clear and convincing evidence that the defendant is guilty of “recklessness, oppression, fraud, or malice in the commission of the abuse,” the limitation on damages recoverable in actions by personal representatives and successors in interest imposed by California Code of Civil Procedure section 377.4 do not apply.[18] This section means that damages are not limited to “the loss or damage that the decedent sustained or incurred before death,” and include damages for “pain, suffering, or disfigurement.”[19]

Moreover, the statute authorizes punitive damages pursuant to California Civil Code section 3294,[20] and permits an award of attorney’s fees and costs against an employer even absent a showing of “knowledge of unfitness of the employee” or “conscious disregard, authorization, or ratification” otherwise required to obtain punitive damages against an employer.[21]

Application of Financial Elder or Dependent Adult Abuse Beyond “Traditional” Cases

When applicable, the ease with which powerful remedies can be accessed makes the claims for financial elder or dependent adult abuse nearly indispensable. But these causes of action are not limited to the specific, quasi-secretive abuse of elderly persons or disabled adults that come to mind when envisioning such abuse. Rather, due to the broad language of the statute, nearly any instance in which the plaintiff is over the age of 65 or is otherwise a dependent adult warrants the inclusion of this claim.

For instance, in Estate of Lowrie, 118 Cal. App. 4th 220 (2004), the court held that a trustee of a trust held for the benefit of a deceased elder committed financial elder abuse by exploiting his relationship with the deceased elder resulting in large gifts and the alteration of the decedent’s testamentary documents to leave the trustee substantially of the decedent’s estate. Not only were actual damages, punitive damages, and attorney’s fees awarded, but, pursuant to California Probate Code section 259, the trustee was “deemed to have predeceased [the] decedent,” and was thereby disinherited.

In Wood v. Jamison, 167 Cal. App. 4th 156 (2008), the court upheld a trial court ruling that an attorney committed financial elder abuse, holding that the receipt of a $4,000 finder’s fee from the proceeds of a loan made to an elder is elder abuse and, in and of itself, warranted an award of attorney’s fees. The fact that the funds were transferred directly from the loan provider to the attorney, without ever being held by the elder, did not prevent the court from finding elder abuse. While the amount of attorney’s fees awarded was not discussed, and the plaintiff was awarded over $180,000 on other grounds, the opinion supports an award of attorney’s fees for even minimal recoveries.

In Bonfigli v. Strachan, 192 Cal. App. 4th 1302 (2011), the court, in reversing a directed verdict for the defendant, held that the plaintiff stated a cause of action for financial elder abuse when he alleged that a developer effected a lot line adjustment reducing the size of the elder’s parcel and encumbering the elder’s property without a valid power of attorney, and without compensating the elder.

These three examples, although by no means exhaustive, illustrate the broad application of EADACPA beyond traditional cases of elder abuse.

The financial elder and dependent adult abuse statute has broad application. It is a key tool for the civil litigator, and its interpretation by courts serves only to bolster its strength. Look closely to determine whether an elder or dependent adult is involved at the inception of a case. An EADACPA claim raises the stakes in a lawsuit, including attorney’s fees. The relief potentially available may also provide an impetus for earlier resolution.


Andrew R. Verriere and Joseph M. Morrill are attorneys at Morrill Law Firm.  Located in Walnut Creek, Morrill Law Firm specializes in financial elder abuse litigation, probate litigation (will and trust disputes and conservatorship disputes) and appellate work.  For more information, visit www.morrillattorneys.com.  You can contact the authors at andy@morrillattorneys.com or joe@morrillattorneys.com.


[1] Delaney v. Baker, 20 Cal. 4th 23, 33 (1999).

[2] Cal. Welf. & Inst. Code § 15600(h).

[3] Id. at § 15600(j).

[4] Id. at § 15610.30(a)(1).

[5] Id. at § 15610.30(a)(2).

[6] Id. at § 15610.27.

[7] Id. at § 15610.23(a).  The definition also includes persons between 18 and 64 who are admitted as an inpatient to a 24-hour health facility.  Id. at § 15610.23(b).

[8] Cal. Gov. Code § 12926.1.

[9] Jay v. Kubly, 2008 WL 77572, at *5 (Cal. Ct. App. 2008) (unpublished).

[10] Cal. Welf. & Inst. Code § 15610.30(b).

[11] Id. at § 15657.6.

[12] See, id.; see also BAJI 7.43.1 Financial Abuse – Elder/Dependent Adult – Lacks Capacity/of Unsound Mind (Spring 2009 New) (“Financial abuse of an elder or dependent adult . . . occurs when a person [inter alia] . . . refuses to return the property, upon demand by the elder or dependant adult or a representative of the elder or dependent adult.”).

[13] Id. at § 15657.01

[14] See Cal. Civ. Proc. Code § 483.010

[15] Cal. Welf. & Inst. Code § 15657.01.

[16] Id. at § 15657.5(a) (emphasis added).

[17] Id.

[18] Id. at § 15657.5(b).  Inclusion of “recklessness” expands the scope of available damages beyond that of fraud, which requires a demonstration of oppression, fraud, or malice.  Compare Cal. Welf. & Inst. Code § 15657.5(b) with Cal. Civ. Code § 3294.

[19] Cal. Civ. Proc. Code § 377.4.

[20] Cal. Welf. & Inst. Code § 15657.5(d).

[21] Cal. Welf. & Inst. Code § 15657.5(c); cf. Cal. Civ. Code § 3294(b).

Filed Under: Featured

Tags:

RSSComments (0)

Trackback URL

Comments are closed.