Although financial elder abuse remains a very hot topic these days, a survey of recently-published articles and law firm websites reveals a significant misunderstanding of many of its more practical aspects. Having handled such litigation for many years, including both defense and prosecution of numerous “high-profile” cases quite recently, it is that many of the supposed difficulties of both making and defending such claims are overstated. It is time for both those making the claims and those defending them to focus more on the practical ways in which the basic legal principles are applied on the ground. This article outlines some of the more important ones.
First, the legal standard for proving financial elder abuse turns out to be much lower than many commentators suggest, largely because the concept of “abuse” is easier to prove than the scary notion of intentional malfeasance which that word implies. For example, under Welf & IC § 15610.3(b) and the recent cases interpreting it, a defendant accused of abuse need only have obtained or to have impaired, or to have assisted in either of those, the value of property belonging to an elder. Bounds v. Superior Court (2014) 229 Cal.4th 468. If there was a transfer away from the elder, it need not have been to the defendant himself. Further, ruthlessness, recklessness, or some kind of malign intent need not be proven, and the standard is simply proving that the necessary facts are more probable than not (and not as measured by the higher standard of “clear and convincing” evidence). Importantly, all that is needed after that is to show that the defendant should reasonably have known that the elder would suffer harm. And in the case of a fiduciary (such as a spouse, an investment advisor, or even a trusted friend or relative), there is even a presumption of undue influence which can lead to a full disgorgement or money damages. That is, such a defendant must meet his or her burden of proving the absence of undue influence because otherwise elder abuse may be found.
Secondly, many commentators worry far too much that proving a case of financial elder abuse is difficult without the testimony of the elder, who by the time of trial may be incompetent or deceased. But as California Courts have observed many times over the years, it is well understood that elder abuse claims will be usually need to be proven by circumstantial evidence because such conduct almost always occurs behind closed doors, with no witnesses at all. In one recent case we handled, for example, the elder’s third wife, 25 years his junior, transferred tens of millions of dollars from his separate property account to her own separate property account at a point when the elder had been diagnosed with dementia/Alzheimer’s for over ten years, and where, in the third wife’s presence at the hospital, the elder had insisted that the year was 1942. In another case, the elder’s signature supposedly authorizing the challenged transfer literally extended half way down the page, and deposition testimony established that even that was the third attempt to get a decent-looking signature.
The geographic location where the elder signed a document can also be very important. In a case we litigated just this year, the allegation against our client was that the cancer-stricken elder had signed a real property deed while in the hospital. When we showed that elder had actually been somewhere else at that time, engaged in a heavy schedule of business appointments, the elder abuse allegation was quickly withdrawn. In yet another lawsuit, allegations against our client that he had engaged in exploiting an elder with dementia led us to scrutinize the very document which the claimant’s lawyers were using as authority for prosecuting the lawsuit on behalf of the elder. It turned out that the document which the claimant’s lawyers were using as the authority to sue our client was one which had been signed in the presence of an attorney who had (as was required) examined the elder for signs of dementia and had found them to be absent.
The presence or the absence of a third party advisor is also a critical circumstance. If it can be shown that a neutral party also weighed in on the defendant’s proposed course of action, that is powerful evidence that the transaction was fair because it demonstrates the contemporaneous assessment of an independent expert without the convenience of hindsight. And even when the third party advisor objects to the defendant’s proposed transaction, if the elder chooses between the two alternatives, that circumstance alone can be persuasive. In one recent case, we showed that the independent advisor not only had told the elder to accept an alternate proposal but also that it was one which would have provided compensation to the independent advisor. Somewhat naturally, that bias proved fatal to the case against our client.
From a practical standpoint, another vital factor in evaluating elder abuse claims is that both sides enjoy the right to a jury trial. This usually increases the risk for defendant due to the sympathy which lay persons might be expected to have towards an elder who has suffered a financial setback. But it can also provide an opportunity for the defense if plaintiff’s counsel, though a regular participant in probate court, lacks the entirely different skill set of presenting a case to a jury. The comparative demeanor of witnesses on both sides of the case must be weighed carefully also, and knowledge about the intricacies of the jury selection process becomes critical.
The fact that a jury trial may be involved also affects the trial forum. Some commentators have suggested that there is a choice between regular civil court and probate court but most probate courts do not hear jury trials (or indeed even matters that last longer than a couple of afternoons) due to their heavy caseloads. This means that if a case is filed in probate court, perhaps because the claim is being made by a Trustee or another estate representative such as a conservator, it may behoove one or more of the parties to persuade the probate judge to transfer the matter to the Presiding Judge for a master calendar assignment quickly. In one case, the elder abuse claim had been pending in probate court literally for years when we became involved, and we immediately asked the probate judge to transfer the matter to the Presiding Judge for a jury trial assignment, resulting almost immediately in the commencement of serious settlement negotiations. As to potential delays because of the long line of other cases waiting for jury trials on the master calendar, if the elder is still alive and is at least 70 years old, then the case is entitled to an expedited trial scheduling status under CCP § 36(a).
Next, many commentators worry too much about the expense of prosecuting the elder abuse case. For one thing, the attorneys fees can be awarded under California law for successful elder abuse claims, and this even includes the expense of paying psychological and forensic accounting experts if the provisions of CCP § 998 are properly employed. Further, if the claim is being prosecuted by a Trustee, the probate court can be petitioned for fees as the case proceeds. Moreover, when the favorable legal principles discussed above are added to potential jury sympathy, not to mention the availability of double damages for bad faith under Probate Code § 859, getting legal representation on the basis of a contingency fee agreement might not be difficult.
In sum, when there is a practical application of the legal principles and the dynamics of the ways in which actual court system works, then the prosecution and the defense of elder abuse claims are often simpler than what the theoretical analyses of the commentators seem to imply. There is just no substitute for having experienced trial lawyer handle an elder abuse matter, no matter whether the case ends up going to a jury trial or quickly settles due to the increased respect usually accorded to an opposing counsel who is fully experienced in the courtroom.
For further information, please contact Bill Norman at 415-765-6236 or at firstname.lastname@example.org
 Under CCP § 998(d), if a claimant makes an offer to settle a claim for a certain dollar amount and the defendants decline to settle on that basis in 30 days, and the verdict thereafter is for an amount higher than the proferred sum, then expert costs can be awarded.