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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.

The range of financial activities covered by financial elder abuse are broad and include wrongful takings by caretakers, caregiver theft, fiduciary misconduct by lawyers, accountants, or investment advisors, and scams and investment advice by insurance and annuity sales persons, banks, and brokers. Even wrongful takings by family members or others through wrongful bequests in wills or trusts may constitute financial abuse. If any of these persons take money or property from elders when they should have known the taking would harm them, they may be liable for all damages and attorney fees, and so are their employers. And if the elder can prove the taking was the product of reckless or intentional misconduct, the elder may possibly recover damages for the emotional distress caused by the taking.

In analyzing a possible claim for financial elder abuse, it is often helpful to consider three issues:

1. Who is really bringing the claim? It is simple to spot the person abused – but who is really going to pursue the claim? Often the abused elder is not aware of the abuse, or refuses to acknowledge it. Even if he is the abused elder competent to bring the claim. If he is, is his version of the facts reliable?  Is he similar situated to other persons who may have been abused by the same person or business entity?
2. Who is the abuser and what is his/her relationship to the abused client? Unlike traditional fraud claims, elder abuse claims focus on the state of mind and conduct of the abuser and can be proven even without testimony from the defrauded or abused party. The key question is – What is the evidence that the abuser knew or should have known that taking money or property would harm the elder? If there is none, what is the evidence that the abuser was in a confidential or fiduciary relationship with the abused and failed to disclose material facts or a conflict of interest to the elder or his representatives?
3. Damages: This element is either the same or similar in both traditional fraud and financial elder abuse cases. There are three separate considerations: First, is the fraud or abuse ongoing? If so, injunctive relief is probably called for, either through a court protective order or other directive. Second, how much money or property has already been taken? If the amount is minor, the time and expense of a court proceeding may not be worth it. However, even if the amount is small, are there similar victims of the same type of conduct? Finally, are there emotional distress damages? If the defendant’s conduct is outrageous and intentional, emotional distress and punitive damages may be available. Third, what is the likelihood the defendant can pay it back, even if you are successful? This depends on many factors, including on the defendant’s resources, business status, place of business, and how long ago the fraud occurred.

Antipsychotic drugs are extremely potent medications designed to treat the most severe of mental illnesses, such as schizophrenia or psychosis. They are NOT intended to treat dementia. Yet, nursing facilities may use antipsychotic medication to control the behavior of residents– a chemical restraint as a substitute for needed care.

The problem is aggravated because antipsychotic medications have dangerous side effects. In fact, the FDA has issued its most dire warning – the Black Box Warning – stating antipsychotic drugs given to elders with dementia causes heart attacks, strokes and death.

An additional component of this problematic issue is Informed Consent. Informed Consent requires physicians and care facilities to not only fully inform the patient or patient’s representative of all side effects, dangers, and alternatives of treatment but to also obtain permission/consent from the patient or representative prior to administering any medical treatment potentially hazardous to a patient’s health. Failure to obtain consent before administering treatment is against the law.

Federal guidelines state antipsychotic drugs should NOT be used if the ONLY symptoms are:

Wandering, unsociability, poor self-care, indifference to surroundings, restlessness, impaired memory, nervousness, mild anxiety, uncooperativeness, and insomnia. Measured by these standards, much antipsychotic and antianxiety drugs used by nursing homes to treat residents with dementia are both unnecessary and a form of chemical restraint.

Some of the most common signs of overmedication include:

• Erratic or unexplained change in personality and behavior
• Sudden reclusive actions (even toward family members)
• Fatigue or exhaustion
• Oversleeping
• Medical complications or other unusual physical symptoms
• Loved one appearing easily confused

The most commonly used antipsychotic drugs are Risperdal, Seroquel, Zyprexa, and Haldol.  Please see the back of this page for a complete list of antipsychotic medication.

Antipsychotic Drugs:

• Haldol (haloperidol)
• Risperdal (risperidone)
• Seroquel (quetiapine)
• Zyprexa (olanzapine)
• Compazine (prochlorperazine)
• Loxitane (loxapine)
• Mellaril (thioridazine)
• Moban (molindone)
• Navane (thiothixene)
• Orap (pimozide)
• Prolixin (fluphenazine)
• Stelazine (trifluoperazine)
• Thorazine (chlorpromazine)
• Trilafon (perphenazine)
• Abilify (aripiprazole)
• Clozaril (clozapine)
• FazaClo (clozapine)
• Geodon (ziprasidone)
• Invega (paliperidone)
• Symbyax (olanzapine and fluoxetine)

Antipsychotic medication is only one of four classes of psychoactive drugs, albeit the most dangerous in cases of dementia. The other three classes of psychoactive drugs containing serious side effects and commonly used by care facilities include:

• Anti-anxiety drugs such as Ativan and Valium;
• Anti-depressants such as Prozac and Zoloft; and
• Sedative/hypnotics such as Halcion and Restoril.

This information is in part a summary of the California Advocates for Nursing Home Reform information webpage on Toxic Medicine. For complete text see http://www.canhr.org/stop-drugging/wp-content/uploads/2010/06/Toxic_Medicine.pdf

As elders age, more and more of their relationships become ones of trust. Eventually, they all are. It is one thing when this dependence stays within the family – quite another when the enterprises we must rely on to guard our health or wealth are strangers. The law recognizes this. The standards of the market place – where every man and woman must look out for themselves – should NOT govern those who make their money by inviting elders to trust them. For this reason there is a special law of trust that holds those who serve elders to a higher standard of conduct. The law says that these businesses and professionals owe a special duty of trust to elders, usually called “Fiduciary Duty.”

The Law of Trust 
Generally, the law allows people to put their own self-interest first. There is an exception, however, when an enterprise depends on the trust of others to run its business. Under the law those enterprises owe a fiduciary duty to put the interests of their clients and customers before their own. So it is every man and woman for themselves except when they vow otherwise. Fiduciaries vow otherwise. So what are their special duties?

What Does it Mean to Have a Duty of Trust to an Elder?
A fiduciary may not profit from his or her position of trust at the expense of the elder. Fiduciaries must fully disclose to the elder any conflict of interest they may have in their dealings with them. If the elder gives the fiduciary money, the fiduciary must account for what he or she does with it. Before acting, a fiduciary must tell the elder what he or she is doing on the elder’s behalf. If fiduciaries do not follow these duties, they are liable for any and all harm the elder suffers as a result.

WHO Has This Duty of Trust?
For starters, most professionals who serve the elderly have this duty – lawyers, financial advisors and investment advisors lead the list. Those who act as trustees or who have been given special powers by elders, like those with the powers of attorney or health (or other agency powers) are also held strictly accountable for their actions as fiduciaries. Recent California case law extends the duty of fiduciary to doctors and health care companies (McCall v. PacifiCare of California, Inc.). Most importantly, businesses and corporations – such as hospitals, nursing homes and other care providers can and do have fiduciary duties to elders when they care for them.

Who Can Elders Trust with Their Money?
This may come as a surprise – but practically any person or corporation who does business in California with people over 65 now has a duty to take special care they do not harm the elder when they do business with them. Several years ago California amended its elder abuse laws to say that any person who wrongfully takes real or personal property from a person over 65 must pay it back. What’s wrongful? The statutes say that if a person (or business) takes such property when he or she knows or should have known that the taking would likely harm an elder, the law will presume it is wrongful.

The Bottom Line:
As the numbers of elders grow, more and more enterprises are being formed to serve their needs. Many of them are now publicly traded corporations or professional firms. Nearly all depend on the trust elders and their families place in order to do business. The general law of the marketplace – “Buyer Beware” – should not apply to their actions. Instead, these enterprises can and are held to a higher standard. Those businesses which depend on the trust of elders must respect it by placing the elders’ interests before their own. If they violate this law of trust, they can and should be held accountable.