Elder abuse is not a new problem; however, it is a growing problem in the United States. As the 65 and older population continues to increase at a heretofore unseen rate, issues that affect seniors and those who care for them are becoming more and more important. How to combat and punish abuse and neglect of the elderly is a problem that every state in the U.S. is wrestling with in the 21st century. California has long been a pioneer in the effort to protect seniors, enacting the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), also frequently shortened to the “Elder Abuse Act,” as far back as 1982. If you believe that an older loved one is the victim of elder abuse, in any of its many forms, the EADACPA may be helpful. Because of the complex nature of the EADACPA, you should consult with an experienced elder law attorney if you believe the law may apply to your situation. For now, however, you may find it beneficial, to learn some of the EADACPA basics.
Why Did the California Legislature Enact the EADACPA?
Over three decades ago, the State of California became one of the first states to enact a comprehensive law providing civil remedies for elderly victims of abuse. At the time, the legislature recognized that although many acts of abuse against the elderly were criminal acts, few were prosecuted. Furthermore, they found and declared that infirm elderly persons and dependent adults are a disadvantaged class and that few civil cases were brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. Specifically, the Elder Abuse Act was intended to “protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect” and to “direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment.”
What Is Covered by the Elder Abuse Act?
The term “elder abuse” is a very broad term that brings to mind a number of different potential methods of abuse. The California Elder Abuse Act covers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. Each of the potential forms of abuse is further defined in the EADACPA. For example, neglect is defined as follows:
“[t]he negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. Neglect includes, but is not limited to, the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide mental care for physical and mental health needs. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration.”
Financial abuse of the elderly is also included in the Elder Abuse Act. Despite the fact that experts believe financial abuse of the elderly to be the most prevalent form of elder abuse, many people do not even recognize financial abuse as a form of abuse. According to the EADACPA, financial abuse of the elderly is defined as:
“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. A person is equally liable for financial elder abuse if they “assist” another in doing any of the above.”
Available Remedies under the Elder Abuse Act
What makes the EADACPA such an important piece of legislation are the remedies available to a victim of elder abuse if they bring a successful lawsuit using the Act. Along with very broad definitions of elder abuse which make it easier to prove liability, the Elder Abuse Act also provides for the awarding of attorney fees for a successful plaintiff, providing attorneys more incentive to take cases based on a violation of the EADACPA. Finally, is a plaintiff can prove that a defendant acted with “recklessness, oppression, fraud, or malice in the commission of the abuse,” additional remedies become available to the plaintiff.
If you have additional questions or concerns regarding elder abuse, consult with an experienced California elder law attorney. Contact theCollins Law Firm by calling (310) 677-9787 to reserve for a Free Estate Planning Workshop.