Forging into Unchartered Territory with the Law on Abuse of Dependent Adults

The California Attorney General’s Office estimates that 200,000 elder and dependent adults are abused in California every year. [1] Forgery, such as imitating an elder or dependent adult’s signature on a check or a change of beneficiary form, is one of the leading forms of this public health problem.

Often overlooked is that laws prohibiting elder abuse also apply to younger disabled persons who are equally vulnerable. California’s Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) provides enhanced civil remedies against an individual alleged to have taken advantage of an elder or “dependent adult” for financial gain.[2]

The California Penal Code, in turn, provides enhanced penalties (fines up to $10,000 and imprisonment up to four years) against an individual who is not a caretaker who commits forgery with respect to the property or personal identifying information of an elder or “dependent adult.”[3]

The law is clear on which victims qualify as an elder—the person must be 65 years of age or older.[4]

The law is less clear on which victims qualify as a “dependent adult.” Section 15610.23 of the Welfare and Institutions Code and Section 368(h) of the California Penal Code provide the following definition of “dependent adult” applicable to a civil cause of action under EADACPA and the crime of forgery:

  • (a) “Dependent adult” means any person between the ages of 18 and 64 years who resides in this state and 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.
  • (b) “Dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

The few courts that have interpreted the language of section (a) have interpreted it rather narrowly. In Cabral v. County of Glenn, plaintiff alleged abuse of a dependent adult in violation of the EADACPA for injuries he sustained while detained in jail.[5] Plaintiff alleged that he was diagnosed as psychotic, mentally ill, suicidal and suffering from a major depressive disorder at the time he sustained the injuries.[6]

The plaintiff in Cabral alleged that he had drenched himself in kerosene while clothed in nothing but Saran Wrap and tried to set himself on fire; he heard voices from God instructing him to kill his girlfriend and then he attacked her; he scooped water and waste from his jail cell toilet and rubbed it on his body; and he ran into the wall of his jail cell, breaking his neck and paralyzing himself.[7]

The Court granted defendants’ motion to dismiss the EADACPA cause of action.[8] The Court reasoned that plaintiff had not adequately alleged that he was a “dependent adult”:

[T]his Court agrees with the reasoning in Jay v. Kubly, an unpublished appellate court opinion in which the court stated, “the statutory definition [of dependent adult] is fairly broad, but must be read in the light of the relevant legislative history, and of reason. In Delaney v. Baker, 20 Cal. 4th 23, 82 Cal. Rptr. 2d 610, 971 P.2d 986 (1999), the [California] Supreme Court reviewed the history of section 15657, concluding one of its major objectives ‘was the protection of residents of nursing homes and other health care facilities.’[9] While the definition of ‘dependent adult’ is not limited to persons living in such facilities, it reasonably should extend only to persons whose disabilities and needs are comparable to persons who are compelled to live in nursing homes and other health care facilities.”[10]

[T]he Jay court determined that the plaintiff in the case before it was not a “dependent adult” despite the fact he was “56 years of age, was blind in one eye and partially blind in the other eye, suffered from post-traumatic stress disorder, was disabled due to his medical and psychiatric problems, suffered from neurological ‘sequelae’ from a rifle wound to the head, was facially disfigured and had been rated as 100 percent disabled by the United States Department of Veterans Affairs.”[11] That Court reasoned that “[a]t most these allegations support a conclusion that decedent had some physical and mental disabilities. They [did] not show that decedent, who admittedly lived independently, nonetheless suffered from restrictions in the ability to carry out normal activities or protect his rights comparable to those suffered by the decedent in Estate of Shinkle.”[12]

In Estate of Shinkle, the court found that a decedent was a dependent adult. The decedent was in her late 70s during the time period at issue; she was diagnosed with paranoia, sepsis, gangrene and arterial occlusive disease; she “complained of pain daily and told [her nursing assistant] she wanted to die”; she was incontinent; her house smelled of urine; she was known to hallucinate; her legs were full of fluid and she could no longer walk; she had ulcerations and seeping wounds; “[s]he had a hard time collecting her thoughts and expressing herself”; “[s]he needed assistance with most activities of daily living, including cooking, bathing and toileting”; and “[s]he no longer did her own banking and needed help paying her bills.”[13]

In People v. Matye, the court found that a decedent was a dependent adult under Section 368(h) of the Penal Code. The decedent suffered a stroke that left her with partial paralysis in the right side of her body; she could not speak or comprehend very well and had problems with her memory; she could only walk with a brace or cane; and she depended on her son to drive her, make her bed, do her laundry and prepare her meals.[14]

Practitioners should keep a watchful eye on the evolution of the case law on the definition of “dependent adult” under the EADACPA and Penal Code. The courts’ reticence to broaden that definition may recede as the public sharpens its focus more evenly between dependent adults and elders.

Ryan J. Szczepanik is a senior associate at Hartog & Baer, A.P.C, in Orinda, California. He specializes in trust, estate and probate litigation. He is a graduate of Amherst College and Emory Law School.

[1] Elder Abuse Issue Brief, Center of Excellence on Elder Abuse and Neglect, U. of Cal. Irvine, Mar. 2013.

[2] Cal. Welf. Inst. Code § 15610.07.

[3] Cal. Pen. Code § 368(d).

[4] Cal. Welf. Inst. Code § 15610.27; Cal. Pen. Code § 368(g).

[5] Cabral v. County of Glenn (2009) 624 F.Supp.2d 1184, 1194.

[6] Id., at 1195.

[7] Id., at 1188-1189.

[8] Id.

[9] Id.

[10] 2008 WL 77572 *5 (1st Dist. 2008).

[11] Id.

[12] Id.

[13] Estate of Shinkle (2002) 97 Cal.App.4th 990, 993-1000, disapproved on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816.

[14] People v. Matye (2008) 158 Cal.App.4th 921, 925-926.

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