Resources

Elder Abuse Resources

 Nancy M. Battel has vast experience in the field of Elder Law. For all our clients, we seek equity and justice. For those victims of domestic physical, mental, and financial abuse, we work out resolutions. Our cases include deliberate or negligent elder abuse.We have represented clients in cases of fraud and deceit, constructive trusts, negligence, conspiracy to commit elder abuse, breach of contract, fraudulent accounting, and conversion. We have sought temporary restraining orders and permanent injunctions. We have the experience to help you with your problem.Some Facts about Elder Abuse

  • More than 450,000 persons over 60 are victims of elder abuse in the U.S. each year.
  • Most common kinds of elder abuse: 1) Neglect, 2) Emotional/psychological abuse, 3) Financial/material exploitation, 4) Physical abuse, 5) Abandonment, 6) Sexual abuse.
  • Specific types of financial elder abuse: 1) Consumer fraud, 2) Telemarketing fraud, 3) Financial transactions (bills, loans, bank accounts, commissions, powers of attorney, sales of property, payment for services rendered)
  • One out of 20 elders experiences elder abuse, but only one in four reports it.
  • The most likely victim of elder abuse is a woman between 60 and 70 years of age who is being mistreated by her child or spouse. Family members constitute 65% of the offenders.
  • Friends and neighbors are the most frequent reporters of elder abuse.
  • Elders fail to report their abuse for many reasons: fear, embarrassment, loyalty, ignorance of their options.
  • California works to prevent and punish elder abuse. Adult Protective Services (APS) provides counseling, education, nutrition services, and home health care.
  • California is the only state to have an Elder Abuse Act, which protects residents of California over 65 from abuse.
  • In California, elder abuse is a crime. California punishes abusers with up to four years in prison and fines of $1000.
  • Another California statute prevents an elder abuser from inheriting from the victim by considering him or her to have predeceased the elder.
  • The Financial Abuse Specialist Team (FAST), made up of police, prosecutors, paramedics, and social workers, follows up on reports they receive and prosecutes abusers of the elderly.

Who to Call in Santa Clara County

  • Adult Protective Services. Call for help or for mandated reporting. (408) 928-3860 or 1-800-414-2002.
  • Financial Abuse Specialist Team (FAST). Call APS at (408) 928-3860 or 1-800-414-2002.

Who to call for local help

  • Senior Adults Legal Assistance. 160 E. Virginia St. Suite 260, San Jose, CA 95112. (408) 295-5991. South Count: (408) 847-7252.
  • Bay Area Legal Aid. 2 West Santa Clara St. 8th floor. San Jose, CA 95113 (408) 283-3700. www.crla.org
  • California Rural Legal Assistance. 7365 Monterey Rd., suite H. Gilroy, CA 95020 (408) 847-1408. www.crla.org
  • Asian Law Alliance. 184 East Jackson St. San Jose, CA 95112. (408) 287-9710. www.asianlawalliance-ala.org

Information on Elder Abuse that is Available Online

  • National Center on ElderAbuse. Fact sheets on the frequency, signs and reporting practices of elder abuse. www.elderabusecenter.org
  • Elder abuse Foundation. Information on nursing home and elder abuse. www.elder-abuse-foundation.com
  • Zero, The – Elder Abuse Resources. Directory of agencies, organizations, and reports with information on prevention and assistance for victims of elder abuse.. www.vachss.com/help_text/elder_abuse.html
  • American Psychological Association – Elder Abuse and Neglect. Article defines elder abuse and discusses ways to solve the problem. www.apa.org/pi/aging/eldabuse.html
  • Administration on Aging-Elder Abuse Prevention. Details of the frequency of elder abuse, definition of the phenomena, and how to report it. www.aoa.dhhs.gov/factsheets/abuse.html
  • Elderly Place, The – Elder Abuse. Learn about the different forms of elder abuse and prevention strategies. www.geocities.com.-elderly-place/abuse.html
  • SeniorLaw: Resources. Excellent list of Elder Law and Legal Resources on the Web. www.seniorlaw.com/resource.htm

Explanation of California’s Elder Abuse Statute

 California’s overarching statute is the California Welfare & Institutions Code § 15670 (a)-(d), known as the Elder Abuse and Dependent Adult Civil Protection Act (EADACP), which declares it the state’s responsibility to protect the elderly and disabled because they are a disadvantaged class.Adding strength to enforcement of the EADACP, Cal. Welf. & Ins. Code § 15610.30 (b)(1) imposes a system of mandated reporters who must report the known or suspected instance of abuse by telephone immediately. In Santa Clara County, the number is 1-800-414-2002.Since predators assume they can keep whatever property they take from an elder, California enacted a statute that forms a resulting trust when “(o)ne who wrongfully detains a thing (is) an involuntary trustee thereof, for the benefit of the owner.”Similarly, a constructive trust, rather than ownership, results when the elder’s property is appropriated wrongfully. Cal. Civ. Code § 2224 requires the wrongful taker of an elder’s property to give it back; it still belongs to the elder.Undue influence, in relation to § 2224, is explicitly defined in Cal. Civ. Code § 1575 as “use by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him . . .taking an unfair advantage of another’s weakness of mind; or . . .taking a grossly oppressive and unfair advantage of another’s necessities or distress.”Another law, designed to be a significant deterrent to predators hoping to gain the elder’s estate, is Cal. Probate Code § 259. It effectively cuts off the elder abuser from inheriting by considering him or her to have predeceased the elder.One recent law is of great interest to attorneys. Cal. Welf. & Inst. Code § 15657 encourages lawyers to take cases of elder abuse, because it provides costs and reasonable attorney’s fees to the successful plaintiff.Cal. Welf. & Ins. Code § 15657(b) offers further incentives to lawyers, because it guarantees that survivors or the estate of the elder who passes away can recover damages for pain and suffering with the words, “The limitations imposed by section 337.34 of the Code of Civil Procedure on the damages recoverable shall not apply.” Even if an elderly client should die before the trial is over, the case continues and recovery can be significant.Further, punitive damages are recoverable under Cal. Civ. Code § 3294.