Today’s Take: Don’t Mess With Elders

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It is an unfortunate reality that as people get older, they become more and more susceptible to influence, abuse, and neglect.  In fact, California has recognized that its elders are a disadvantaged class, that the cases of abuse are seldom prosecuted as criminal matters, and few civil cases are brought due to problems of proof, court delays, and the lack of incentives to prosecute these lawsuits.  In response to these issues, the California legislature enacted Welfare & Institutions Code Section 15610.30, a statute aimed at redressing elder financial abuse and incentivizing lawyers to take up their cause.

In an nutshell, an elder is anyone residing in this state who is 65 years of age or older.  Financial abuse occurs when a person assists in or takes real or personal property of an elder for a wrongful use or with the intent to defraud.  Elder financial abuse can also occur when a person uses undue influence to take real or personal property of an elder.

One of the ways in which the legislature has incentivized lawyers to take up these cases is by allowing elders to recover their attorney’s fees if they can prove financial abuse against a wrongdoer.  Unlike most attorney’s fees statutes, the recovery of attorney’s fees in this context is only permitted if the elder prevails at trial.  A prevailing defendant is not entitled to the recovery of his attorney’s fees.  Similarly, the legislature has opened the door to a wide range of potential monetary remedies.  Successful elders can seek compensatory damages, punitive damages and possibly treble damages under Civil Code Section 3345, a statute aimed at protecting senior citizens.  Additionally, if a claim for elder abuse is brought by a conservator, trustee, or other representative of the estate of an elder, he or she may be entitled to double-damages under Probate Code Section 859 in addition to the remedies set forth above.

The Psalmist writes: “do not cast me away when I am old; do not forsake me when my strength is gone.”  Our California Legislature has recognized the need to enforce this statement by providing a statutory scheme that serves as a shield to protect our elders and as a sword to redress wrongs committed against them.

Rodney C. Lee, Partner

Today’s Taste:  The 2007 Georges de Latour Private Reserve Cabernet Sauvignon is drinking beautifully now and will only get better with time.  Beaulieu Vineyard is one of the longest continually operating wineries in Napa Valley and because it is still one of the most historic and iconic names in the industry, this wine seemed appropriate for today’s post.

On Writs and Wine is the blog of ECJ’s Litigation Department, featuring our takes on a variety of litigation-related issues, plus a wine recommendation for your palate’s delight.  Your feedback—on both the takes and the wine—is much appreciated.  Enjoy!