Financial Elder Abuse in Probate Cases
California Welfare and Institutions (WIC) Code 15610.3 defines “financial abuse” of an elder as taking “real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both”. The court also identifies fraud as this conduct performed by an individual who knew or “should have known” the consequences.
Furthermore, financial abuse can occur even if the elder has signed an agreement allowing a transfer of property. Thus, California WIC identifies that this abuse may be performed by a conservator, trustee, or other representative of the estate OR an elder’s attorney-in-fact or individual with the power of attorney. That said, unfortunately most instances of financial elder abuse in probate cases are performed by close relatives.
This definition demonstrates how financial elder abuse can affect an individual’s assets before and even after they have died. For example, it is not uncommon for individuals to persuade an elderly friend or neighbor to put a home in their name for “safe keeping”. Unfortunately, in this situation, the new beneficiary may keep the home for themselves instead of passing it on as intended. In this case, probate court can do little to help an elderly individual protect themselves. However, the court has passed laws to protect individuals’ assets that have been fraudulently distributed or transferred.
California Probate Laws to Protect Elders
California WIC describes the process for the Superior Court overseeing financial elder abuse cases during or after probate. More specifically, WIC Section 15657.3 states that a personal representative of a decedent with evidence of fraud may commence an action for elder abuse. However, if the personal representative committed the fraud, another heir or interested party may file an action with the court. Ultimately, if the court finds the defendant guilty of financial elder abuse, they must return all property acquired from probate. Additionally, the court may collect attorneys’ fees and compensatory damages.