Stopping Financial Thefts

George F. Dickerman, Attorney

Elder financial abuse is not only a crime, but invokes a civil cause of action as well. There are many remedies to stop financial thefts and this article will discuss a powerful law that protects elder victims through civil litigation.

Many states have laws that specifically protect seniors from such abuse. California, in particular, has enacted the Elder Abuse and Dependant Adult Civil Protection Act (EADACPA). The civil courts in Riverside County, for example, are now familiar with the remedies that EADACPA provides. One of the primary advantages of EADACPA is the right to recover postmortem pain and suffering damages (general damages). Prior to EADACPA, a lawyer might refuse to accept a financial abuse case because it was quite possible that his or her frail elderly client might pass away before the case got to trial. If so, the right to recover general damages died also.

Under EADACPA, this right continues even after death. Interestingly, one of the primary reasons the California legislature passed this set of laws was to encourage attorneys to take on such cases. The law requires that it be proven, by clear and convincing evidence, that the defendant committed acts of fraud, malice, oppression or recklessness. EADACPA claims involve intentional torts and, when proven by these higher standards, provide nearly every remedy that the elderly victim could hope for.

Out of pocket monetary losses are recoverable damages. These may include interest on money that was wrongfully taken by the defendant, or lost rent on a home that the defendant lived in without making any payments. As mentioned, general damages (pain and suffering) are recoverable. There is no measuring stick to determine the amount of money that would compensate the elder for this loss. A jury must put aside passion and sympathy and award only the amount that appears reasonable under the circumstances.

Exemplary, or punitive, damages are also recoverable. The purpose of such an award is to both punish the defendant and also to set an example that despicable acts of elder financial abuse will not be tolerated in a civilized society.

Enhanced remedies may also be available in which the court, under circumstances of particularly egregious acts, may double or triple the amount of certain damage claims. As mentioned, an award of attorney fees is another remedy for the elderly victim. Under certain circumstances, these fees are mandatory. Appropriate costs are also recoverable.

If an EADACPA lawsuit is brought on behalf of an elder who is under a conservatorship, then a jury verdict can include monetary compensation to the conservator for services rendered in furtherance of the civil lawsuit.

Imposition of constructive or resulting trusts can also be imposed against a defendant. If the defendant wrongfully acquired title to the elder's real or personal property, then the court can order that the defendant's interest was solely as a trustee and such property must be returned to the elder.

These are just some of the many remedies available to an elder who has been victimized by financial abuse.

Law Office of George F. Dickerman
3879 Brockton Avenue, Riverside, California 92501
(951) 788-2156
www.Elder-Law-Advocate.com
george@Elder-Law-Advocate.com

POLST Form Now Available In Spanish!

The California POLST form has been translated into Spanish and is now available on the California Coalition for Compassionate Care website. The Spanish version is for educational purposes only and is not a valid POLST form. To be effective as a physician’s order that is honored across the continuum, the POLST form must be signed in English so that emergency personnel and other healthcare professionals can read and follow the orders.

The POLST form is the most powerful way to make your wishes known in an emergency situation. Traditional "Living Trusts" and Durable Power of Attorney forms are still important and good to have. However when an emergency happens and the form is too hard to locate or if your chosen spokes person is unavailable, the emergency physician is bound to provide life saving treatment, whatever that may entail. 

With the POLST form, you sit down with your physician ahead of time, you discuss with him/her what your desires are concerning treatment, especially in an emergent situation. Then your physician signs the form, making it a legal order from a doctor. 

We encourage you to go listen to our Podcast with our very own Dr. Cochrane as he spells out the need for this form and how to specifically use this invaluable form. You can listen HERE.

ASK THE DOCTOR - Memory Loss

Question:  I have noticed that my memory is getting worse with age, is that normal?

Most people experience changes in their memory with aging; but there are several other causes of memory loss. Medication side effects, alcohol use, depression and dementia are just a few of the causes of memory loss you may want to discuss with your doctor.  In order to better understand normal “age related” memory changes, let me provide an overview on how your memory actually works (information adapted from FamilyDoctor.org).

     The brain stores information in different areas that I will refer to as “compartments”. The three compartments are short term memory, recent memory, and remote memory. Information stored in the short term memory may include a phone number you were just given. Information stored in the recent memory may be what you ate for dinner yesterday. Childhood memories and details regarding last year’s family vacation are stored in the remote memory. 

     Your brain has over 100 billion neurons and an estimated 1 trillion additional structural cells. To better comprehend how vast 100 billion is, consider the human heart.  The heart beats around 60 times per minute, 24 hours a day.  At this rate, a person would have to live for over 3,000 years before the heart had beaten 100 billion times.  Beginning at age 20, several thousand brain cells die each day.  Alcohol use and head trauma accelerate this process.   In addition to this loss of brain cells, the chemicals your body produces to store information decrease with age making it harder to recall the previously stored information. 

     Aging primarily affects the recent memory compartment which explains why you forget where you parked your car and why you can’t remember the name of the person you met earlier today. The short term memory and the remote memory are not as affected as much by age.  Being unable to recall a particular persons name or struggling to find a word that later pops into your head are also examples of normal age related memory changes. 

      Memory changes that disrupt daily life such as misplacing things and being unable to find them, getting lost inside your house, or losing track of the day or season are not characteristic of age related memory loss. If you are experiencing any of these more serious memory changes, then write a note to yourself: “remember to tell the doctor what I am forgetting”.   

Elder Law - What Is It?

George F. Dickerman, Attorney

Elder Law involves the legal issues that arise as a consequence of
the aging process. This is a rather narrow field and can be a
little confusing to some senior citizens.

Many seniors have legal problems that are similar to people in
their thirties and forties; for example, wrongful termination
(employment), bankruptcy, or real estate disputes. Sometimes a
potential client calls an elder law attorney to obtain, for
example, family law advice regarding a possible divorce. That
lawyer explains that family law and divorce issues do not fall
under the category of elder law. Elder law pertains to persons who
are 65 years of age or older. Nearly always, the client responds by
saying: "But I'm over 65 years old".

Elder law generally involves the following types of legal matters:

Elder financial abuse. Taking advantage of another person's weaker
state of mind and wrongfully obtaining their money and property
through undue influence, coercion and manipulation. A civil lawsuit
is usually filed to recover the property fraudulently taken.

Elder physical neglect. Most often, this concerns nursing homes
that fail to properly care for their elderly patients. It can also
be caused by in-home caregivers or anyone who has the primary
responsibility of caring for an elder.

Estate Planning. This involves the creation of trusts, wills and
powers of attorney for financial matters and healthcare decision
making. Although these tools should also be utilized by younger
people, they are most often created for elder adults at a time when
they seek to get their financial affairs in order.

Probate. The probate process enables a decedent's estate to be
distributed to loved ones after death. With the proper use of
trusts and wills, the probate process may not be necessary.
However, if no prior estate planning was accomplished, then it may
be necessary to utilize the probate court in order to complete the
distribution of assets.

Conservatorships. When proper estate planning documents have not
been put into place (for example, powers of attorney), then it may
be necessary to establish a conservatorship over the elder's person
and/or estate. Court intervention is sought to grant someone the
authority to make necessary healthcare and financial decisions for
the incapacitated elder.

Medi-Cal Planning. This area refers to the laws and regulations in
California that determine the guidelines to qualify an elder to
receive government benefits to pay the high cost of long term care
in a skilled nursing facility. Riverside County, for example, has
local Medi-Cal offices where the application process is begun and
an ultimate determination of eligibility is made. Medi-Cal is a
complicated area of law with the goal of having the state pay the
monthly nursing home bills and, at the same time, allowing the
elder and their spouse to keep as much of their assets as possible
so they can pass them on to their loved ones.

Although elder law is a narrow field, it is also a rather large
umbrella that encompasses the foregoing issues.

Law Office of George F. Dickerman
3879 Brockton Avenue, Riverside, California 92501
(951) 788-2156
www.Elder-Law-Advocate.com
george@Elder-Law-Advocate.com