California trust and estate disputes often include claims that one or more family members have isolated or are isolating an elder for financial gain. For example, Brother may have difficulty communicating with Mother and blame Sister for disabling or discouraging such contact.
Enter California Assembly Bill 1243. Effective January 1, 2023, the Elder Abuse Act will allow interested parties to seek anti-isolation restraining orders. Judges will have to evaluate often murky family situations to determine whether and how to intervene. AB 1243 also will permit judges to review the propriety of “specific debts” to determine whether they were the product of elder abuse.
AB 1243 Overview
What led to AB 1243’s expansion of the Elder Abuse Act? The Legislature found, as the COVID-19 pandemic continued, that one way perpetrators of abuse are able to continue their wrongdoing “is by preventing trusted friends and family members from seeing or contacting a vulnerable adult. As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.”
The Legislature thus sought to “ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.”
AB 1243 makes two principal changes to Welfare and Institutions Code section 15657.03, which allows California courts to issue restraining orders to protect elder and dependent adults from abuse. “Elders” are California residents age 65 and up. “Dependent adults” are residents age 18-64 who have physical or mental limitations that restrict their ability to carry out normal activities or to protect their rights. For simplicity, we’ll use the terms “elders” to include dependent adults.
First, a judge may issue an anti-isolation restraining order. To do so, the judge must find: (1) the respondent’s past act or acts of isolation of the elder repeatedly prevented contact with the interested party; (2) the elder expressly desires contact with the interested party; and (3) the respondent’s isolation of the elder from the interested party was not in response to an actual or threatened abuse of the elder by the interested party or the elder’s desire not to have contact with the interested party.
Second, a judge may find that one or more “specific debts” were incurred as the result of financial elder abuse of the elder or dependent adult.
Process for Seeking Anti-Isolation Orders
AB 1243 takes a broad view of who is an “interested party” eligible to seek an anti-isolation restraining order. An “interested party” means an individual with a “personal, preexisting relationship with the elder.” This may be shown by a description of past involvement with the elder, time spent together, and any other proof that the individual spent time with the elder. Hence, a friend or neighbor may have standing to seek an anti-isolation order.
Anti-isolation orders, however, may not be sought when the elder resides in a health, residential or long-term care facility, as those terms are defined by law.
The process for seeking any form of elder abuse restraining order, including an anti-isolation order, is described on the self-help page of the Judicial Council’s website. In a nutshell, the interested party must file a petition using California Judicial Council Form EA-100. (The form currently available has not yet been updated to conform to AB 1243, but should be available on or soon after January 1, 2023.)
Petitions generally are to be heard within 25 days of when they are filed, but the parties may request a continuance of the hearing date.
Importantly, while some elder abuse temporary restraining orders may be issued without notice to the respondent on the day the petition is filed, anti-isolation orders may only be issued after notice to the respondent and an opportunity for the respondent to be heard.
An anti-isolation order may specify the enjoined actions. For example, the respondent may be barred from preventing in-person, online and/or telephone contact between the petitioner and the elder.
Once issued, the restraining order may last for up to five years, and it may be renewed thereafter.
The prevailing party, either the petitioner or the respondent, may be awarded legal fees in the court’s discretion.
Findings that “Specific Debts” Were the Result of Financial Elder Abuse
AB 1243’s second component is quite distinct from the first. A court may review “specific debts” incurred by the elder or dependent adult to determine if they were the product of financial elder abuse. Example: Daughter uses Mother’s credit card to purchase expensive items on Amazon for Daughter’s personal use and without Mother’s authorization.
The language was modeled after Assembly Bill 2517 that passed in 2020. AB 2517 permitted courts under Family Code section 6342.5 to review whether “specific debts” were incurred as the result of domestic violence and without the consent of a party.
As with anti-isolation orders, the court may review the propriety of debts incurred in the elder’s name only after notice and hearing.
A finding that a specific debt was the result of financial elder abuse does not entitle the elder to any remedies, such as damages, not expressly included in section 15657.03. Instead, an elder (either directly or through authorized representatives) who wants damages from the respondent will need to bring financial elder abuse claims under other provisions of the Elder Abuse Act. Such claims will proceed to hearing, including a possible jury trial, on a much slower track.
The extent to which specific debt orders under AB 1243 will protect elders is unclear. Perhaps the third party creditor will be more inclined to rescind the transaction or write off the debt if a court has found that the transaction was tainted by financial elder abuse. Perhaps too the wrongdoing respondent will be deterred from committing further bad acts.
Protective Trend Continues
AB 1243 continues the Legislature’s expansion of the Elder Abuse Act, more formally known as the Elder Abuse and Dependent Adult Civil Protection Act, since its adoption in 1982. Requests for elder abuse restraining orders are likely to increase as the new remedies become available and more widely known. California courts may need to reallocate resources or obtain additional funds so as to timely respond to the additional filings.
Lawyers will need to stay abreast of the evolving opportunities to advocate for elders and dependent adults, and to advise those asserting or accused of elder abuse.