One common area of confusion in elder abuse litigation is how to plead a financial elder abuse claim. Is financial abuse rooted in contract theory? Do I litigate under the Probate Code? Does the California Legal Remedies Act (CLRA) apply? The answer to these questions can invariably be yes. But don’t forget that it may be easier to peg financial elder abuse liability under Welfare and Institutions Code section 15657.6.
Welf. & Inst. C. 15657.6 provides in cases of taking property of an elder or dependent adult whom lacks capacity under CA Probate Code 812, or is of unsound mind, but not entirely without understanding (under CA Civ Code 39), that the person who took the property must, upon demand made on behalf of the elder or dependent adult, return the property or be subject to the remedies provided by Welf. & Inst. C. 15657.5. The statute does not require a showing that the taking was based on fraud, duress, undue influence, etc. This provision also subjects the person who took the property to the remedies for financial abuse including attorneys fees and costs by showing the defendant failed to comply with the demand to return the property or restore the property interest to the victim.
In short, Welf & Inst. C. 15657.6 provides relief to elders for failure to return their property (for any reason) whether the property was wrongfully taken, or whether the taking in any way injured the elder. Think creatively and do not count out this statute when pleading financial elder abuse in California.
Jeff Aidikoff is an elder abuse attorney in Beverly Hills, CA. For questions or a free consultation please call 800-981-5932.