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