Elder Abuse – The Elder Abuse Law
In California, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is one of the most powerful tools available to combat elder abuse, both financial and physical.
An “elderly” is defined as a person 65 years of age or older. A “dependent adult” is generally a person between the ages of 18 and 64 who is unable to perform activities of daily living due to mental impairment.
A bit of history: EADACPA was enacted, in large part, to encourage lawyers to represent elderly and frail clients who may not survive long enough for the court to hear their case. One of the remedies available to elderly and dependent adult victims of financial or physical abuse was the right to recover money damages for pain and suffering.
Before EADACPA, that right was lost if the client died. Almost all of these civil cases are accepted by the attorney on a contingency fee basis; that is, the lawyer receives fees only if the case is successful. A percentage of the recovery for damages for pain and suffering was part of the attorney’s fees.
An attorney may have spent hundreds of hours working on the case and then lost the ability to receive fees commensurate with the amount of work invested.
With EADACPA. the right to compensation for pain and suffering continues, even if the victim dies before the conclusion of the litigation.
Proving an EADACPA claim requires a greater burden of proof than a mere preponderance of the evidence. To receive all available remedies, one must prove, through clear and convincing evidence, that the defendant’s actions were intentional and involved fraud, malice, oppression, or recklessness.
If this can be shown, then the EADACPA statutes also allow many other remedies. The victim can also recover punitive damages as a way to punish the defendant and set an example that this type of behavior will not be tolerated in a civilized society. Attorneys’ fees and court costs may also be included in the judgment.
One of the most interesting remedies includes disinheriting the perpetrator from receiving any property or money from the victim’s estate when the victim dies. Anyone found responsible for financial or physical abuse of an elder or dependent adult is automatically disinherited.
In a civil lawsuit, other causes of action (or theories of liability) will be included. However, the EADACPA claim will generally be the mightiest sword used to combat the reprehensible acts of predators that prey on the vulnerable elderly and dependent adults.
By: George F. Dickerman, Esq.