Elder abuse protections are extended to California residents 65 years of age or older, as well as dependent adults between the ages of 16 and 64 who possess physical or mental limitations that restrict the ability to carry out normal activities and protect their legal rights. Elders and dependent adults may suffer from chronic disabilities or temporary afflictions that have landed them in acute care hospitals, psychiatric facilities, nursing care facilities, assisted living, or chemical dependency recovery centers.
Unfortunately, placement in these facilities often results in neglect or abuse. According to the most recent data, 13% of the total complaints to the California Office of the State Long-Term Care Ombudsman involve abuse, gross neglect, or exploitation—over twice the national rate of 5%. In places like Merced County and San Francisco, reports of institutional elder abuse have increased by as much as 20-33% each year.
In California, elder abuse is covered under Penal Code Section 368 and the Elder Adult and Dependent Adult Civil Protection Act (EADACPA). In this article, you learn the basics of who can sue for elder abuse as well as responsible parties that can be sued, what scope the legislation covers, and where to turn for legal counsel.
Who Can Sue for Elder Abuse in California?
You must have “legal standing” in order to become a plaintiff filing a lawsuit. California Civil Code of Procedure Section 367 states that “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute CCCP 367.” Therefore, the living elder or dependent adult must be named as the principal plaintiff in the suit. The law also allows “a personal representative” to assist with the lawsuit.
Plaintiffs in elder abuse lawsuits may include:
- The elder or dependent adult
- Family members vested with the power of attorney
- Successors or heirs of the estate
- Family members who witnessed the elder abuse
- Conservators or guardians of an incompetent elder or dependent adult
- Spouses of the injured
Multiple plaintiffs can be included in the suit. For instance, an elder sexual abuse lawsuit may name the elder as the principal plaintiff for physical and emotional injuries sustained, but a spouse may also file for “loss of consortium” damages for the loss of society, comfort, and care of the injured plaintiff.
In cases where the elder or dependent adult has passed away, the right to sue transfers to:
- A named personal representative
- The next in line via intestate succession
- A successor in interest (such as a child, grandchild, relative, friend, or guardian)
- A person named as an “interested person”
These individuals may sue on behalf of the deceased victim, as well as on their own behalf for burial and funeral expenses, loss of support/guidance/companionship, loss of finance, and/or emotional distress.
Types of Elder Abuse
Abuse under an EADACPA claim may include any of the following:
- Physical Abuse: Physical abuse can take many forms: assault, battery, use of a deadly weapon, force causing bodily injury, unreasonable physical restraint, deprivation of food or water, withholding or misusing medication, and sexual abuse.
- Sexual Abuse: Rape, forced or coerced sexual contact, inappropriate touching, sodomy, oral copulation, or penetration are all forms of sexual abuse.
- Neglect, Abandonment, Isolation, or Deprivation: Failure to ensure the elder receives proper food, drink, medication, rest, hygiene, clothing, shelter, social interaction, safety, and protection can be grounds for a lawsuit.
- Emotional Abuse and Mental Suffering: Name-calling, blaming, demeaning, humiliating, ridiculing, threatening, terrorizing, menacing, yelling, or isolating the victim from family members are all forms of mental and emotional abuse.
- Fiduciary Abuse or Exploitation: Financial abuses include coercing an elderly person into withdrawing money, forging the elder’s signature on checks or documents, forcing signature of a will/deed/power of attorney, stealing property, extorting money in exchange for providing lifelong care, using possessions or properties without explicit permission, using deception or dishonesty to gain access to finances, cons, telemarketing scams, and charging credit cards without authorization.
Who Can Be Held Liable for Elder Abuse?
The defendants in an elder abuse lawsuit depends upon the circumstances of the crime. For legal remedy, there must be clear and convincing evidence that the defendant has committed an offense out of recklessness, negligence, willful malice, fraud, or oppression. Liability may be assigned to:
- Individuals, such as family members, neighbors, friends, coworkers, or strangers
- Employers like nursing facilities, hospitals, rehabs, or assisted living centers
- Employees like nurses, doctors, officers, administrators, managers, or other caregivers
- Financial institutions, mortgage brokers, home improvement contractors, or advisors
As there may be more than one plaintiff in an elder abuse lawsuit, there may also be more than one defendant named. In most cases, a civil attorney will go after an insured institution, such as a nursing home—not just an individual perpetrator—as this approach stands the best chance of securing successful compensation for elder abuse victims and their families. Even if an arbitration agreement was signed upon admission into a long-term care facility, survivors of elder abuse can still seek justice.
Let an Experienced Attorney Fight For Your Loved One
It is important institutions designed to care for the dependent be held accountable for enabling elder abuse to remedy the hazardous environment being created and prevent future harm from befalling other elders and dependent adults. While laws in California apply to the criminal punishment of perpetrators of elder abuse, working with an experienced civil attorney helps victims of elder abuse get the compensation they deserve.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.
