What are the Most Common Penalty for Financial Elder Abuse?
Financial abuse of elders is occurring more and more commonly as California’s population ages. A relative or unscrupulous caregiver of a vulnerable older person may use undue influence on an elderly individual to change a will, add a name to bank accounts or give away assets, against their free will.
The state of California has laws to protect elderly people —defined as anyone 65 or older— from being victimized by those who would financially exploit them. In many instances, the predatory person is a caregiver who is taking advantage of the elderly person’s vulnerability, dependence or cognitive decline. Issues such as dementia or strokes can make an elder more vulnerable to coercion and abuse. A person found to be committing financial elder abuse by using a trust or will to steal assets rarely faces criminal charges. In most cases, the family just wants to protect their loved one, have the financial abuse stopped and get the assets returned.
If you suspect that your elderly parent is being subjected to financial elder abuse or you’ve been a victim of inheritance theft, contact a financial elder abuse attorney. The attorneys at Albertson & Davidson, LLP have helped hundreds of clients in California successfully pursue elder abuse claims. We can bring a claim against a predatory individual who has used undue influence to take advantage of your parent. We can review the facts of the situation and determine whether filing a claim is in order to stop the financial elder abuse and recover your inheritance. Contact us at (855) 928-0542 if you have questions.
What is the Penalty for Financial Elder Abuse?
One of the questions we frequently hear as attorneys when meeting with people who want to contest a parent’s trust or will because of financial abuse issues is “What is the penalty for financial abuse of the elderly?”
In most cases, when elder financial abuse occurs, it’s a relative, family friend or caregiver who has exercised undue influence to persuade an elderly parent or dependent relative to redirect assets. For example, it may be the one sibling who doesn’t get along with the other siblings and coerces an elderly parent to revise a will or estate plan to leave everything to him or her rather than distribute the assets evenly to all the siblings.
Changes to trusts, wills, beneficiary deeds and joint account designations are common ways that elder financial abuse occurs. But these are also valid ways of transferring assets. It can be difficult to detect financial abuse. Each situation requires a careful evaluation to determine the elder’s intent. Determining intent can be challenging when an elder is experiencing cognitive decline.
It’s understandable that victims of elder abuse and inheritance theft have questions about what penalties the abuser will face, when the wrongdoer is a relative or family friend. The victims want to recover the stolen money and put a stop to the financial abuse. But they don’t necessarily want their relative to face criminal charges or be arrested and sent to jail.
Typically, financial elder abuse claims are handled as a civil matter, rather than a criminal matter. In civil cases, the wrongdoer may face financial penalties, but not jail time. The person who committed the financial elder abuse is most likely not going to face criminal prosecution or arrest by police. Criminal charges are rare in financial elder abuse cases.
If the bad actor refuses to cooperate and return the stolen assets when confronted, then your only option as a victim of inheritance theft may be to file a civil lawsuit seeking to compel the person to return the assets. You will need to stand up and fight for your rights.
Pursuing Financial Elder Abuse Claim in Court
At Albertson & Davidson, our experienced trust and will litigation attorneys believe it’s generally more advantageous to file a financial elder abuse lawsuit in California civil court than in probate court. The cases are often resolved through a settlement without a trial. But if the case goes to trial, a civil jury hears the facts and determines whether financial elder abuse occurred.
The Financial Elder Abuse Act defines undue influence as excessive persuasion that overcomes an elderly parent or family member’s free will and causes them to act in a way that produces an unfair result. Under California law, you are only required to have 9 of the 12 jurors agree to get a favorable verdict. The court may order the predatory person who is found to be committing financial elder abuse to return the stolen money and pay an interest penalty or forfeit any investment gains made on the stolen assets.
If you are successful in your elder abuse claim, California’s financial elder abuse act allows for the award of enhanced damages, including damages for the parents’ or family members’ pain and suffering. The court may award punitive damages to punish the wrongdoer, who wrongfully took the money. These damages are not allowed in probate court, so it’s important to bring the action in civil court. The court may order the wrongdoer to pay the victims’ attorney fees.
Legal action is an important tool to force a predatory person to relinquish stolen assets or property. With the possibility of significant financial penalties, financial elder abuse cases are often settled out of court. Our attorneys at Albertson & Davidson work to protect your loved one’s financial security as quickly as possible.
Can a Financial Elder Abuser Be Disinherited?
It is difficult to invalidate a trust or will in California. But California is one of a handful of states that has enacted laws as part of its Probate Code to allow for the disinheritance of an elder abuser. The laws are meant to serve as a disincentive to elder abuse.
If an individual is found to have taken a person’s property through financial elder abuse, California’s Probate Code Section 259 provides a way to disinherit the abuser.
You must be able to show clear and convincing evidence that the predatory person committed financial abuse against the elderly person or dependent adult. You must also show that the elderly person from the time the abuse occurred until his or her death was substantially unable to manage his or her own financial affairs or to resist undue influence.
An individual proven guilty of wrongful financial abuse of an elder or dependent adult may be deemed “to have pre-deceased” the elder, which has the effect of disinheriting the individual.
Can Financial Elder Abuse Lead to Criminal Charges?
Criminal charges in cases of financial elder abuse are extremely rare. But financial elder abuse under California criminal statutes does include acts of theft, embezzlement, forgery and financial fraud.
If a victim of elder abuse chooses to press charges, a wrongdoer may face misdemeanor or felony criminal charges related to the financial wrongdoing. A conviction of a misdemeanor charge can result in up to a year in jail and a criminal fine for the wrongdoer. A conviction of a felony related to elder financial abuse may carry a prison sentence of two to four years in prison and fines, in addition to having to give up the stolen assets.
People typically don’t pursue criminal charges because the elder financial abuse often involves relatives or family friends. The victims want to hold the wrongdoer financially accountable as a matter of principle and recover the elder’s assets.
How to Afford a Financial Elder Abuse Lawyer
If you have lost your inheritance through financial abuse, you may wonder how you can afford an attorney to pursue legal action.
At Albertson & Davidson, our attorneys handle many cases on a contingency fee arrangement. This allows the victim to pursue legal action without worrying about how to pay for an attorney.
If we are successful in recovering money for you, we receive a portion of the amount recovered to cover our legal fee and case expenses.
Contact a Financial Elder Abuse Attorney
Inheritance theft is one of the fastest growing areas of theft among elders in California. But you do have legal recourse. If you believe that you are in danger of losing your inheritance because someone has orchestrated last-minute changes to your parent’s will or estate plans, the burden is on you to stand up for your rights. But you don’t have to do it alone.
The elder abuse attorneys at Albertson & Davidson, LLP are committed to fighting for your inheritance. Our attorneys have represented victims of elder financial abuse across California. We have offices in Silicon Valley, Los Angeles, Carlsbad, Bay Area, Irvine and San Diego. If a predatory person has intervened in the life of your parent or relative and unduly influenced your loved to revise their will or trust, then you need a strong trial attorney to stand up for you.
At Albertson & Davidson, our attorneys know how to stand, fight and win.