California’s Elder Abuse statutes expand the legal remedies available to abused persons over the age of 65. The California legislature in passing these laws determined that the elderly by virtue of their age are a disadvantaged class, and that cases of abuse are seldom prosecuted and few civil cases are brought due to problems of proof and lack of meaningful remedies.
Under traditional fraud law, a defrauded party must show that the defendants actually misrepresented a material fact, that the misrepresentation was intentional, that he justifiably relied on the misrepresentation, and that he suffered damages as a result. All are required. If there is a confidential relationship, the elements of intentional misrepresentation and reliance may be relaxed.
The standards needed to prove financial elder abuse under California’s elder abuse standards are different. First, the relationship between the abuser and the elder defendant will often be confidential. That means constructive fraud may often be shown if the defendant did not affirmatively disclose an important fact, or put his interests before the interests of the elder. Second, under California’s financial abuse statutes, simple negligence on the part of the abuser may be enough to recover, even if intentional misconduct is difficult to prove.
That’s because under California law elder abuse statutes, financial abuse occurs when any person wrongfully takes real or personal property from a person over 65. What’s wrongful? The statutes say that if a person takes such property when he or she knows or should have known that the taking would likely harm an elder, there is a presumption it is wrongful.
Thus, if elders can prove a person took their property when the taker more than likely knew or should have known it would harm them, they may be able to prove financial abuse. There is no heightened burden of proof – if the misconduct more than likely occurred the elder can recover. The standard appears to resemble negligence – if the taker of property should have known the taking would harm the elder, there may be liability. Recklessness or intentional misconduct, which is required to recover for physical elder abuse, is not required to prove financial abuse. In addition, an employer may be liable for the acts of employees who take property wrongfully while in the course of their employment. The statutes do not directly require that employer actually authorize or ratify the misconduct. And there is no limitation of damages for financial abuse – all compensatory damages can be recovered by the elder. And the financially abused elder can recover attorney fees and the legal costs of suing the abuser if they are successful.