A state's elder abuse law can create an independent cause of action, in addition to encouraging lawyers to file a lawsuit under existing law, which can provide improved resources, such as attorney fees. A starting point for understanding financial exploitation is to review the elder abuse or adult abuse statutes in your state. The financial elder abuse and fraud cases that are developing in court right now around Marvel Comics icon Stan Lee can be traced back to state laws enacted many years ago, such as the California Elder Abuse Act, designed to protect people 65 and older. Neglect, as defined in the Elder Abuse Act, includes failure to “exercise” degree of care that would be exercised by a reasonable person in a similar position.
Here are 11 tips about the California Elder Abuse Act for professionals who may find elder financial abuse the most common and fastest growing form of elder abuse. For the first three years, after some colleagues and a friend's parents suffered nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law. In addition, elder abuse attorneys' fees and costs may also be subject to tripling under this statute, considering that the statute allows for the tripling of any “remedy whose purpose or effect is to punish or deter.” Interestingly, in cases of physical abuse, an elder can recover attorneys' fees and costs only if the physical abuse is proven with clear and convincing evidence. Code § 15657.7 provides that a claim for damages for financial abuse of elders must be commenced within four years after “the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts that constitute financial elder abuse.
A lawyer cannot, and should not, file an elder abuse lawsuit under the Act simply because apparently negligent conduct involved an elderly person. Sixth, neither the competence nor the sophistication of the victim determines who can file a lawsuit for financial abuse of elders. What the bank and broker would have learned if the doctor had been forced to file a lawsuit is that victim-blaming is not a defense to an elder financial abuse lawsuit. The elder may believe that telling the whole story can cause a family member to limit the elder's independence and, worse, initiate guardianship proceedings.
To obtain improved remedies under the Elder Abuse Act from an employer for the acts of one or more employees, the plaintiff must allege and prove facts that allow punitive damages to be imposed against an employer pursuant to section 3294, subdivision (b) of the Civil Code. If an abused elder prevails by a preponderance of evidence in a financial abuse case by obtaining positive net monetary compensation under the law, he will be allowed to recover “reasonable attorney's fees and costs.” Failure to act by a professional who should have disclosed wrongful conduct can support an elder financial abuse lawsuit, such as when a lawyer engaged in self-management, or when an accountant prepared tax returns for both the victim and the abuser, but did nothing to alert the victim that she was treated unfairly.
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