One Response to “Guardianship abuse - it’s only a crime if caught”
Elaine Renoire Says: February 10th, 2009 at 7:53 am
Unlawful and abusive guardianships are a growing national epidemic, threatening the personal and financial freedom of vulnerable and elderly people.
I appreciate this post and would like to see Citizens for Patient Dignity to do an in-depth series, because this is a danger people need to know about before they become insnared.
Guardianship wards are stripped of all rights: the right to decide where to live and whom to associate with, how to spend (or save!) one’s own money, accept or refuse medical treatment - or even ask for a second opinion, vote, marry, etc.
Most important, guardianship wards are stripped of the right to complain.
With the fox guarding the henhouse and the hens muzzled, guardians and their attorneys can easily unjustly enrich themselves at the expense and detriment of the very person they have been court-appointed to “protect”.
Visit NASGA at http://www.StopGuardianAbuse.org and the
NASGA blog at http://NASGA-StopGuardianAbuse.blogspot.com for more information.
Forewarned is forearmed!
Yours,
Elaine RenoireNASGA
Wednesday, June 24, 2009
THE WARNING SIGNS OF ADULT ABUSE
The Warning signs of adult abuse
Physical
• Injury that has not been cared for properly
• Injury that is inconsistent with explanation for its cause
• Dehydration or malnutrition without illness-related cause
• Poor skin color
• Sunken eyes or cheeks
• Forced isolation
Behavioral
• Fear
• Anxiety, agitation
• Isolation, withdrawal
• Non-responsiveness, resignation, ambivalence
• Contradictory statements, implausible stories
• Hesitation to talk openly
• Confusion or disorientation
• Caregiver prevents vulnerable adult from speaking to or seeing visitors
• Caregiver’s lack of affection toward vulnerable adult
• Caregiver talks of vulnerable adult as a burden
Financial
• Expensive gifts from vulnerable adult to caregiver
• Vulnerable adult’s personal belongings, papers, credit cards missing
• Numerous unpaid bills
• A recent will when vulnerable adult seems incapable of writing will
• Caregiver’s name added to bank account
• Vulnerable adult unaware of monthly income
• Vulnerable adult signs on loan
HOW TO GET HELP
• For more information on adult abuse, go to www.okdhs.org and click on Adults.
Source: Adult Protective Services
Physical
• Injury that has not been cared for properly
• Injury that is inconsistent with explanation for its cause
• Dehydration or malnutrition without illness-related cause
• Poor skin color
• Sunken eyes or cheeks
• Forced isolation
Behavioral
• Fear
• Anxiety, agitation
• Isolation, withdrawal
• Non-responsiveness, resignation, ambivalence
• Contradictory statements, implausible stories
• Hesitation to talk openly
• Confusion or disorientation
• Caregiver prevents vulnerable adult from speaking to or seeing visitors
• Caregiver’s lack of affection toward vulnerable adult
• Caregiver talks of vulnerable adult as a burden
Financial
• Expensive gifts from vulnerable adult to caregiver
• Vulnerable adult’s personal belongings, papers, credit cards missing
• Numerous unpaid bills
• A recent will when vulnerable adult seems incapable of writing will
• Caregiver’s name added to bank account
• Vulnerable adult unaware of monthly income
• Vulnerable adult signs on loan
HOW TO GET HELP
• For more information on adult abuse, go to www.okdhs.org and click on Adults.
Source: Adult Protective Services
DON'T IGNORE GRADMA'S GRIEF
Don't ignore grandma's grief
By Patti Carmalt-Vener 06/04/2009
Dear Patti,
My husband and I recently moved into the area and we just love it. Because we’re semi-retired, we’re frequently home in the middle of the day when most of our neighbors are working. We barely know anyone in the neighborhood yet and don’t want to be labeled as troublemakers, but we have witnessed something that we’re both uncomfortable with.
Our neighbors, who live across the street and one house down from us, have an elderly grandmother who lives with them. We’ve heard that the couple has another family member taking care of her while they’re working. A couple of weeks ago we saw the caregiver yelling loudly and harshly at this frail-looking old lady who didn’t say anything back; she just looked down at the sidewalk and kept walking very slowly. Two days ago, while I was gone, my husband witnessed a similar incident. He thought the elderly lady looked sad and he wants to do something. It’s not that I disagree, but we never saw this individual call names, threaten, shove or hit the grandmother, and we didn’t see any bruises on her, so I don’t want to overreact. If I heard a nanny yell at a child I don’t know that I’d call it child abuse, so I’m just a little unsure what is elder abuse and when it’s appropriate to do something. We wanted your opinion on how to handle this.
—Mr. and Mrs. Smith
Dear Mr. and Mrs. Smith,
If you suspect this elderly grandmother is being mistreated or spoken to in a way that causes her emotional pain or distress, you should immediately contact the Adult Protective Services hotline at (877) 477-3646 and let them professionally investigate. When you talk to the social worker, give your concerns in detail, telling exactly what you witnessed regarding actions of the companion and reactions of the senior. You can make the report anonymously or, if you so choose — and I know it may be difficult — you can explain to your neighbors that you made the report out of loving concern for their family and their grandmother. While they may be upset because you didn’t just talk to them about what you observed, abuse against elders is often subtle and the distinction between normal interpersonal stress and abuse isn’t always easy to discern. It may sound extreme, but I think your only choice in this situation is to make sure that if a problem exists it won’t be ignored.
As elders become more physically frail, they’re less able to stand up to bullying or intimidation. They may not see, hear or think as clearly as they used to, leaving them vulnerable to financial exploitation, sexual abuse, abandonment, neglect and emotional trauma. The demands of their mental and physical problems can be overwhelming and frustrating for those in charge of their daily care, especially when the caretakers haven’t had proper training and are unskilled at how to take care of their own needs as well the person they’re responsible for.
Elder abuse is never an acceptable response to any situation. No matter how difficult and dependent, the elderly need to be free from harm by those who care for them.
Every year an estimated 2.1 million older Americans are victims of physical and psychological abuse and neglect. You’re not being a busybody neighbor by speaking up and protecting someone who may possibly be unable to defend herself. It’s not an easy thing to do, but it’s the responsibility of all of us to protect those who can’t protect themselves.
Please don’t hesitate or put off doing the right thing.
Patti Carmalt-Vener, a faculty member with the Southern California Society for Intensive Short Term Psychotherapy, has been a psychotherapist in private practice for 23 years and has offices in Pasadena, Santa Monica and Canoga Park.
Contact her at (626) 584-8582 or
visit
www.patticarmalt-vener.com
By Patti Carmalt-Vener 06/04/2009
Dear Patti,
My husband and I recently moved into the area and we just love it. Because we’re semi-retired, we’re frequently home in the middle of the day when most of our neighbors are working. We barely know anyone in the neighborhood yet and don’t want to be labeled as troublemakers, but we have witnessed something that we’re both uncomfortable with.
Our neighbors, who live across the street and one house down from us, have an elderly grandmother who lives with them. We’ve heard that the couple has another family member taking care of her while they’re working. A couple of weeks ago we saw the caregiver yelling loudly and harshly at this frail-looking old lady who didn’t say anything back; she just looked down at the sidewalk and kept walking very slowly. Two days ago, while I was gone, my husband witnessed a similar incident. He thought the elderly lady looked sad and he wants to do something. It’s not that I disagree, but we never saw this individual call names, threaten, shove or hit the grandmother, and we didn’t see any bruises on her, so I don’t want to overreact. If I heard a nanny yell at a child I don’t know that I’d call it child abuse, so I’m just a little unsure what is elder abuse and when it’s appropriate to do something. We wanted your opinion on how to handle this.
—Mr. and Mrs. Smith
Dear Mr. and Mrs. Smith,
If you suspect this elderly grandmother is being mistreated or spoken to in a way that causes her emotional pain or distress, you should immediately contact the Adult Protective Services hotline at (877) 477-3646 and let them professionally investigate. When you talk to the social worker, give your concerns in detail, telling exactly what you witnessed regarding actions of the companion and reactions of the senior. You can make the report anonymously or, if you so choose — and I know it may be difficult — you can explain to your neighbors that you made the report out of loving concern for their family and their grandmother. While they may be upset because you didn’t just talk to them about what you observed, abuse against elders is often subtle and the distinction between normal interpersonal stress and abuse isn’t always easy to discern. It may sound extreme, but I think your only choice in this situation is to make sure that if a problem exists it won’t be ignored.
As elders become more physically frail, they’re less able to stand up to bullying or intimidation. They may not see, hear or think as clearly as they used to, leaving them vulnerable to financial exploitation, sexual abuse, abandonment, neglect and emotional trauma. The demands of their mental and physical problems can be overwhelming and frustrating for those in charge of their daily care, especially when the caretakers haven’t had proper training and are unskilled at how to take care of their own needs as well the person they’re responsible for.
Elder abuse is never an acceptable response to any situation. No matter how difficult and dependent, the elderly need to be free from harm by those who care for them.
Every year an estimated 2.1 million older Americans are victims of physical and psychological abuse and neglect. You’re not being a busybody neighbor by speaking up and protecting someone who may possibly be unable to defend herself. It’s not an easy thing to do, but it’s the responsibility of all of us to protect those who can’t protect themselves.
Please don’t hesitate or put off doing the right thing.
Patti Carmalt-Vener, a faculty member with the Southern California Society for Intensive Short Term Psychotherapy, has been a psychotherapist in private practice for 23 years and has offices in Pasadena, Santa Monica and Canoga Park.
Contact her at (626) 584-8582 or
visit
www.patticarmalt-vener.com
BEWARE OF ELDERLY FINANCIAL ABUSE
Beware of Elderly Financial Abuse
June 1st, 2009
According to financial-planning.com, “elder financial abuse costs older Americans more than $2.6 billion per year and is most often perpetrated by family members and caregivers, according to a new report released by the MetLife Mature Market Institute. The study indicates that for each case of abuse reported, there are an estimated four or more that go unreported. Family members and caregivers are the culprits in 55 percent of cases; financial losses are higher with investment fraud scams”.
Why are the elderly such high profile targets? One word: money. It should be no surprise that the 65 years and older households have a significantly higher proportion of households at the upper net worth level (43 percent have a household net worth of $100,000 or higher), according to various demographic studies, more than all other age-based household categories combined.
So, given what we know, what might be the next (financial abuse) shoe to drop? I believe it could be variable annuity sales abuses that pay ultra-high commissions to would-be predatory financial carnivores and in many cases unnecessarily tie up an older investor’s funds in an underperforming, high-fee insurance product masquerading as a prudent investment opportunity.
Do not get me wrong, insurance within itself is a necessity for practically everyone and an annuitized income stream could be just what the doctor ordered for a retired individual; however, insurance intended to replace tried and true investment securites (certificates of deposit, money market funds, bonds, stocks and mutual funds held outside an annuity), too much insurance without any consideration of an individual’s unique situation, and/or insurance sold to a retiree (whether an annuity or not) for the sake of achieving large sums of commissions for a financial professional when there are other lower fee and higher performance investment alternatives readibly available are a real concern.
In fact, I had an extensive conversation a few years back at the Tulsa Press Club following a Page One luncheon with Oklahoma Insurance Commissioner, Kim Holland, which suggested that the next big focus (in Oklahoma and nationally) might indeed be on unscrupulous variable annuity sales practices against the elderly.
Incidentally, in February 2009, Ms. Holland and the Oklahoma Insurance Commission issued an emergency cease and desist order against American Senior Estate Services and two of its representatives for attempting to sell insurance products in Oklahoma without an insurance license and for using “fraudulent” and “dishonest” business practices. The Plano, Texas-based organization had recently attempted to solicit insurance products in Ardmore by telephoning local senior citizens and falsely implying the seniors’ attorneys had hired the company to review their trusts. The company would then attempt to set up appointments with the seniors and pitch insurance annuity products.
Some say that getting older is hard, so why does the insurance and investment arena need to make it more so? It does not have to be like that!
Tags: National Events · Oklahoma City · Personal Finance · Tulsa · Wall Street
June 1st, 2009
According to financial-planning.com, “elder financial abuse costs older Americans more than $2.6 billion per year and is most often perpetrated by family members and caregivers, according to a new report released by the MetLife Mature Market Institute. The study indicates that for each case of abuse reported, there are an estimated four or more that go unreported. Family members and caregivers are the culprits in 55 percent of cases; financial losses are higher with investment fraud scams”.
Why are the elderly such high profile targets? One word: money. It should be no surprise that the 65 years and older households have a significantly higher proportion of households at the upper net worth level (43 percent have a household net worth of $100,000 or higher), according to various demographic studies, more than all other age-based household categories combined.
So, given what we know, what might be the next (financial abuse) shoe to drop? I believe it could be variable annuity sales abuses that pay ultra-high commissions to would-be predatory financial carnivores and in many cases unnecessarily tie up an older investor’s funds in an underperforming, high-fee insurance product masquerading as a prudent investment opportunity.
Do not get me wrong, insurance within itself is a necessity for practically everyone and an annuitized income stream could be just what the doctor ordered for a retired individual; however, insurance intended to replace tried and true investment securites (certificates of deposit, money market funds, bonds, stocks and mutual funds held outside an annuity), too much insurance without any consideration of an individual’s unique situation, and/or insurance sold to a retiree (whether an annuity or not) for the sake of achieving large sums of commissions for a financial professional when there are other lower fee and higher performance investment alternatives readibly available are a real concern.
In fact, I had an extensive conversation a few years back at the Tulsa Press Club following a Page One luncheon with Oklahoma Insurance Commissioner, Kim Holland, which suggested that the next big focus (in Oklahoma and nationally) might indeed be on unscrupulous variable annuity sales practices against the elderly.
Incidentally, in February 2009, Ms. Holland and the Oklahoma Insurance Commission issued an emergency cease and desist order against American Senior Estate Services and two of its representatives for attempting to sell insurance products in Oklahoma without an insurance license and for using “fraudulent” and “dishonest” business practices. The Plano, Texas-based organization had recently attempted to solicit insurance products in Ardmore by telephoning local senior citizens and falsely implying the seniors’ attorneys had hired the company to review their trusts. The company would then attempt to set up appointments with the seniors and pitch insurance annuity products.
Some say that getting older is hard, so why does the insurance and investment arena need to make it more so? It does not have to be like that!
Tags: National Events · Oklahoma City · Personal Finance · Tulsa · Wall Street
Elder PEACE-Dedicated to Elder Abuse Prevention, Education, Advocacy, Collaboration
Elder PEACE
Dedicated to Elder Abuse Prevention, Education, Advocacy, Collaboration
The voices of elder abuse victims are often hushed by isolation, fear and shame. Our citizens’ action group, Elder PEACE, is channeling the voices of those who have been personally affected by elder abuse. Victims, their families and others are working together to advocate for legislation that increases the health and safety of vulnerable seniors.
Click links below to view ideas and factsheets for raising awareness in your community
Educating Your Legislators
Elder Abuse Professionals work hard to advocate for legislation, programs and services for elder abuse victims. However, unless legislators also hear from us, their constituents, they will not perceive these issues as being important. Once legislators hear the voices of their constituents raised in unison with those of the professionals in the field, they will listen. Now more than ever, the professionals need us to be partners in their advocacy efforts with the legislators.
We can successfully change government policies and funding through our grassroots advocacy efforts.
As a constituent, your opinion matters to your public representatives. Elder PEACE encourages you to contact your Senator and Representative’s office to let them know that elder abuse is important to you, and that as your representatives you expect them to take action to stop this growing crime.
Thank you to Lori Delagrammatikas, M.S.W., for your contributions to these webpages!
Guide to Preparing for Legislative Visits (MS Word doc)
Factsheet for Legislators (MS Word doc)
Factsheet – Elder Abuse in California (MS Word doc)
Things You Can Do in Your Community
Anyone can act to improve the safety of elders in their community and raise awareness about the problem of elder abuse. Here are some ideas.
10 Things Anyone Can Do (MS Word doc)
Community Factsheet - “Elder Abuse Prevention” (MS Word doc, 2 legal size pages)
Dedicated to Elder Abuse Prevention, Education, Advocacy, Collaboration
The voices of elder abuse victims are often hushed by isolation, fear and shame. Our citizens’ action group, Elder PEACE, is channeling the voices of those who have been personally affected by elder abuse. Victims, their families and others are working together to advocate for legislation that increases the health and safety of vulnerable seniors.
Click links below to view ideas and factsheets for raising awareness in your community
Educating Your Legislators
Elder Abuse Professionals work hard to advocate for legislation, programs and services for elder abuse victims. However, unless legislators also hear from us, their constituents, they will not perceive these issues as being important. Once legislators hear the voices of their constituents raised in unison with those of the professionals in the field, they will listen. Now more than ever, the professionals need us to be partners in their advocacy efforts with the legislators.
We can successfully change government policies and funding through our grassroots advocacy efforts.
As a constituent, your opinion matters to your public representatives. Elder PEACE encourages you to contact your Senator and Representative’s office to let them know that elder abuse is important to you, and that as your representatives you expect them to take action to stop this growing crime.
Thank you to Lori Delagrammatikas, M.S.W., for your contributions to these webpages!
Guide to Preparing for Legislative Visits (MS Word doc)
Factsheet for Legislators (MS Word doc)
Factsheet – Elder Abuse in California (MS Word doc)
Things You Can Do in Your Community
Anyone can act to improve the safety of elders in their community and raise awareness about the problem of elder abuse. Here are some ideas.
10 Things Anyone Can Do (MS Word doc)
Community Factsheet - “Elder Abuse Prevention” (MS Word doc, 2 legal size pages)
Tuesday, June 23, 2009
Is Elder Abuse A Crime?
Is Elder Abuse a Crime?
Most physical, sexual, and financial/material abuses are considered crimes in all states insofar as these acts violate statutes prohibiting crimes such as assault, battery, rape, theft, etc.
In addition, depending on the perpetrators' conduct and intent, and the consequences for the victim, certain emotional abuse and neglect cases are subject to criminal prosecution.
State criminal statutes, adult protective laws, and federal statutes such as Medicare define and establish penalties for abuse, neglect, and exploitation of vulnerable adults.
Prosecution of perpetrators is rare, however, and may be hampered by several factors including victims' fear of retaliation, hesitancy to prosecute family members, or lack of capacity to describe the crime or perpetrator.
While there has been some increase in cases prosecuted (particularly in the area of nursing home abuse largely due to aggressiveness of Medicaid Fraud Units), justice for elder abuse victims requires continued specialized training for police officers and other first responders, district attorneys, victim/witness professionals, lawyers, and the courts.
Recent Developments
Efforts are underway by the criminal justice system to improve response to elder abuse.
Here in brief are some recent developments:
State Attorney General Offices and District Attorneys are setting up specialized elder abuse investigation and prosecution units.
Communities are creating multidisciplinary teams (MDTs or M-Teams) composed of professionals from law enforcement, ombudsman, health, and adult protective services to collaborate on elder abuse cases.
Fatality (forensic) review teams are being created to identify and respond to suspected cases of abuse.
Fiduciary abuse specialist teams (FASTs) involving accountants, FBI, insurance claims detectives, and other specialists are playing an increasing important role in pursuing financial abuse cases.
Links to More Information
Information about Laws Related to Elder Abuse
Changing Role of the Courts in Elder Abuse Cases
By Lori A. Stiegel, American Bar Association Commission on Law and Aging
Criminology, Law Enforcement, Elder Abuse, and Senior Victimization (December 2007)
This annotated bibliography highlights research and scholarly articles that examine the criminological aspects of the victimization of older individuals. Investigative and training references, and resources that profile victim and offender characteristics are among the topics featured.
Most physical, sexual, and financial/material abuses are considered crimes in all states insofar as these acts violate statutes prohibiting crimes such as assault, battery, rape, theft, etc.
In addition, depending on the perpetrators' conduct and intent, and the consequences for the victim, certain emotional abuse and neglect cases are subject to criminal prosecution.
State criminal statutes, adult protective laws, and federal statutes such as Medicare define and establish penalties for abuse, neglect, and exploitation of vulnerable adults.
Prosecution of perpetrators is rare, however, and may be hampered by several factors including victims' fear of retaliation, hesitancy to prosecute family members, or lack of capacity to describe the crime or perpetrator.
While there has been some increase in cases prosecuted (particularly in the area of nursing home abuse largely due to aggressiveness of Medicaid Fraud Units), justice for elder abuse victims requires continued specialized training for police officers and other first responders, district attorneys, victim/witness professionals, lawyers, and the courts.
Recent Developments
Efforts are underway by the criminal justice system to improve response to elder abuse.
Here in brief are some recent developments:
State Attorney General Offices and District Attorneys are setting up specialized elder abuse investigation and prosecution units.
Communities are creating multidisciplinary teams (MDTs or M-Teams) composed of professionals from law enforcement, ombudsman, health, and adult protective services to collaborate on elder abuse cases.
Fatality (forensic) review teams are being created to identify and respond to suspected cases of abuse.
Fiduciary abuse specialist teams (FASTs) involving accountants, FBI, insurance claims detectives, and other specialists are playing an increasing important role in pursuing financial abuse cases.
Links to More Information
Information about Laws Related to Elder Abuse
Changing Role of the Courts in Elder Abuse Cases
By Lori A. Stiegel, American Bar Association Commission on Law and Aging
Criminology, Law Enforcement, Elder Abuse, and Senior Victimization (December 2007)
This annotated bibliography highlights research and scholarly articles that examine the criminological aspects of the victimization of older individuals. Investigative and training references, and resources that profile victim and offender characteristics are among the topics featured.
Elder Justice Act-Statement of Principles
Statement of Principles:
Every older person has the right to be free of abuse, neglect, and exploitation
Victims of elder abuse need to have their voices heard and issues addressed.
An adequate public-private infrastructure and resources need to be in place to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect, and exploitation.
Elder Protection
We all have basic rights that must be protected, therefore:
Preventative measures should be in place at the community level to protect at-risk elders.
Technical, investigative, coordination, and victim assistance resources should be available to law enforcement and others to support elder justice cases.
"Safe havens" should be created for seniors who are not safe where they live.
Programs that focus on the special needs of at-risk elders must be developed.
Awareness of Elder Justice Issues
In order to identify and address elder justice issues, we need more and better information from numerous resources:
An Elder Justice Resource Center and Library should provide information for consumers, advocates, researches, policy makers, providers, clinicians, regulators and law enforcement officials.*
A national data repository should collect data about elder abuse, neglect, and exploitation to increase the knowledge base of elder justice issues and inform those that work in this field.
Enhance and promote information from research and clinical practice, and broadly disseminate information on training and services.
Tools to train health professionals in both forensic pathology and geriatrics, and to train public health, social service, and law enforcement officials to detect and combat elder abuse, neglect and exploitation.
Public responsibility and Accountability
It is the government's responsibility to help create systems to ensure elder justice.
The government should:
Create authority to provide programmatic, grant-making, policy and technical assistance related to elder justice.
Create a council to coordinate activities of all relevant federal agencies, states, communities, and private and not-for-profit entities.
Adequately fund these critical programs and responsibilities.
Every older person has the right to be free of abuse, neglect, and exploitation
Victims of elder abuse need to have their voices heard and issues addressed.
An adequate public-private infrastructure and resources need to be in place to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect, and exploitation.
Elder Protection
We all have basic rights that must be protected, therefore:
Preventative measures should be in place at the community level to protect at-risk elders.
Technical, investigative, coordination, and victim assistance resources should be available to law enforcement and others to support elder justice cases.
"Safe havens" should be created for seniors who are not safe where they live.
Programs that focus on the special needs of at-risk elders must be developed.
Awareness of Elder Justice Issues
In order to identify and address elder justice issues, we need more and better information from numerous resources:
An Elder Justice Resource Center and Library should provide information for consumers, advocates, researches, policy makers, providers, clinicians, regulators and law enforcement officials.*
A national data repository should collect data about elder abuse, neglect, and exploitation to increase the knowledge base of elder justice issues and inform those that work in this field.
Enhance and promote information from research and clinical practice, and broadly disseminate information on training and services.
Tools to train health professionals in both forensic pathology and geriatrics, and to train public health, social service, and law enforcement officials to detect and combat elder abuse, neglect and exploitation.
Public responsibility and Accountability
It is the government's responsibility to help create systems to ensure elder justice.
The government should:
Create authority to provide programmatic, grant-making, policy and technical assistance related to elder justice.
Create a council to coordinate activities of all relevant federal agencies, states, communities, and private and not-for-profit entities.
Adequately fund these critical programs and responsibilities.
The Elder Justice Act
The number of older Americans is fast growing, and so is the problem of elder abuse, neglect and exploitation.
This often invisible treatment is among the gravest issues facing millions of American families.
The Elder Justice Act would provide federal resources to support State and community efforts on the front lines dedicated to fighting elder abuse with scarce resources and fragmented systems.
From a social perspective, elder justice means assuring adequate public-private infrastructure and resources to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect and exploitation.
From an individual perspective, elder justice is the right of every older person to be free of abuse, neglect and exploitation.
The Elder Justice Act would promote both aspects of elder justice with the following provisions:
Elevate elder justice issues to a national attention.
Creation of:
(1) Offices of Elder Justice at the Departments of Health and Human Services and Justice to serve programmatic, grant-making, policy and technical assistance functions relating to elder justice,
(2) a public-private and a Coordinating Council to coordinate activities of all relevant federal agencies, States, communities and private and not-for-profit entities, and
(3) a consistent funding stream and national coordination for Adult Protective Services (APS).
Improving the quality, quantity and accessibility of information.
An Elder Justice Resource Center and Library will provide information for consumers, advocates, researchers, policy makers, providers, clinicians, regulators and law enforcement and prevent "re-inventing" the wheel.
A national data repository also will be developed to increase the knowledge base and collect data about elder abuse, neglect and exploitation.
Increasing knowledge and supporting promising projects.
Given the paucity of research, Centers of Excellence will enhance research, clinical practice, training and dissemination of information relating to elder justice.
Priorities include a national incidence and prevalence study, jump-starting intervention research, developing community strategies to make elders safer, and enhancing multi-disciplinary efforts.
Developing forensic capacity.
There is scant data to assist in the detection of elder abuse, neglect and exploitation.
Creating new forensic expertise (similar to that in child abuse) will promote detection and increase expertise.
New programs will train health professionals in both forensic pathology and geriatrics.
Victim assistance, "safe havens," and support for at-risk elders.
Elder victims' needs, which are rarely addressed, will be better met by supporting creation of "safe havens" for seniors who are not safe where they live and development of programs focusing on the special needs of at-risk elders and older victims.
Increasing prosecution.
Technical, investigative, coordination, and victim assistance resources will be provided to law enforcement to support elder justice cases.
Preventive efforts will be enhanced by supporting community policing efforts to protect at-risk elders.
Training.
Training to combat elder abuse, neglect and exploitation is supported both within individual disciplines and in multi-disciplinary (such as public health-social service-law enforcement) settings.
Special programs to support underserved populations including rural, minority and Indian seniors.
Model State Laws and Practices.
A study will review state practices and laws relating to elder justice.
Increasing Security, Collaboration, and Consumer Information in Long-Term Care.
Improving prompt reporting of crimes in long-term care settings
Criminal background checks for long-term care workers
Enhancing long-term care staffing
Information about long-term care for consumers through a Long-Term Care Consumer Clearinghouse
Promoting accountability through a new federal law to prosecute abuse and neglect in nursing homes
Evaluations and accountability. Provisions to determine "what works" and assure funds are properly spent.
This often invisible treatment is among the gravest issues facing millions of American families.
The Elder Justice Act would provide federal resources to support State and community efforts on the front lines dedicated to fighting elder abuse with scarce resources and fragmented systems.
From a social perspective, elder justice means assuring adequate public-private infrastructure and resources to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect and exploitation.
From an individual perspective, elder justice is the right of every older person to be free of abuse, neglect and exploitation.
The Elder Justice Act would promote both aspects of elder justice with the following provisions:
Elevate elder justice issues to a national attention.
Creation of:
(1) Offices of Elder Justice at the Departments of Health and Human Services and Justice to serve programmatic, grant-making, policy and technical assistance functions relating to elder justice,
(2) a public-private and a Coordinating Council to coordinate activities of all relevant federal agencies, States, communities and private and not-for-profit entities, and
(3) a consistent funding stream and national coordination for Adult Protective Services (APS).
Improving the quality, quantity and accessibility of information.
An Elder Justice Resource Center and Library will provide information for consumers, advocates, researchers, policy makers, providers, clinicians, regulators and law enforcement and prevent "re-inventing" the wheel.
A national data repository also will be developed to increase the knowledge base and collect data about elder abuse, neglect and exploitation.
Increasing knowledge and supporting promising projects.
Given the paucity of research, Centers of Excellence will enhance research, clinical practice, training and dissemination of information relating to elder justice.
Priorities include a national incidence and prevalence study, jump-starting intervention research, developing community strategies to make elders safer, and enhancing multi-disciplinary efforts.
Developing forensic capacity.
There is scant data to assist in the detection of elder abuse, neglect and exploitation.
Creating new forensic expertise (similar to that in child abuse) will promote detection and increase expertise.
New programs will train health professionals in both forensic pathology and geriatrics.
Victim assistance, "safe havens," and support for at-risk elders.
Elder victims' needs, which are rarely addressed, will be better met by supporting creation of "safe havens" for seniors who are not safe where they live and development of programs focusing on the special needs of at-risk elders and older victims.
Increasing prosecution.
Technical, investigative, coordination, and victim assistance resources will be provided to law enforcement to support elder justice cases.
Preventive efforts will be enhanced by supporting community policing efforts to protect at-risk elders.
Training.
Training to combat elder abuse, neglect and exploitation is supported both within individual disciplines and in multi-disciplinary (such as public health-social service-law enforcement) settings.
Special programs to support underserved populations including rural, minority and Indian seniors.
Model State Laws and Practices.
A study will review state practices and laws relating to elder justice.
Increasing Security, Collaboration, and Consumer Information in Long-Term Care.
Improving prompt reporting of crimes in long-term care settings
Criminal background checks for long-term care workers
Enhancing long-term care staffing
Information about long-term care for consumers through a Long-Term Care Consumer Clearinghouse
Promoting accountability through a new federal law to prosecute abuse and neglect in nursing homes
Evaluations and accountability. Provisions to determine "what works" and assure funds are properly spent.
VICTIMS OF GUARDIANSHIP ABUSE
WHAT YOU NEED TO KNOW ABOUT UNLAWFUL AND ABUSIVE GUARDIANSHIPS/CONSERVATORSHIPS:
Many lawyers write articles suggesting advance directives, including a Durable Power of Attorney ("durable," meaning it remains in effect after a person becomes incapacitated).
Question: But what if you wind up in front of a corrupt judge who ignores the grantor's wishes? Answer: He can override any legal document executed by the AIP ("alleged incapacitated person.")
(Note: The person is only "alleged" to be incapacitated until they are legally adjudged to be incapacitated; then they are described as the "ward." They are actually wards of the State.
Question: Aren't there any safeguards against that?
Answer: That's up to your state legislators and prosecutors. An honest judge will hold a full evidentiary hearing to determine the validity of the prior Durable Power of Attorney - the issue being whether the AIP was incapacitated at the time of execution. A corrupt judge will not hold any hearing; he/she will just ignore the Power, and sometimes invalidate (with a stroke of the pen) even a Last Will and Testament, putting all sorts of liberties in the hands of the fiduciaries.
Question: Why would a judge do that?
Answer: By unlawfully overriding the powers granted, he can then put his academic or political buddies into the guardianship, to make-work and feast on fees.
Question: What is the quid pro quo; i.e., what's in it for him/her?
Answer: That we will not know until the prosecutors start prosecuting judicial corruption in a meaningful way.
Question: Do you know what your rights are?
Answer: IF YOU DON'T KNOW YOUR RIGHTS, YOU DON'T HAVE ANY!
THE GUARDIANSHIP PROBLEM IS NOT CONFINED TO ANY ONE STATE; the UNLAWFUL PROCEEDINGS and resultant FEEDING FRENZIES are rampant all across the country - anywhere there is money to be made!
Who gave lawyer-guardians a "License to Steal"?
The legislators did! And they gave them a shocking list of powers - including life/death decisions!
THE PROBLEM WITH GUARDIANSHIP - (This site was launched due to an unlawful guardianship experience in NY State, but is fairly typical of corrupt guardianships/conservatorships across the country.)
Some people have described it as a "bounty hunting" operation, with headhunters running computer searches for financial and personal data on potential victims who wind up in a hospital and transfer to a nursing home (whether by reason of illness or even just a fall on the sidewalk).
The nursing home lawyer or someone else then petitions for a guardianship. The assigned judge then distributes his patronage to his pals, in the form of fiduciary appointments as guardian, court evaluator, counsel to the AIP, etc.
Would it shock you to learn that there is no requirement in New York for mandatory counsel to represent a person believed to be incapacitated? It won't when you read on. Many adjudication "hearings" are held which are totally sham, replate with constitutional due process violations, and conducted in complete contravention of statutory protections promulgated by the states, and practice rules issued by the courts.
Who's supposed to watch the guardians?
The judges.
Who's been watching the judges? NO ONE!
Here's what we learned about guardianship in New York:
In January 1999, the New York Law Journal ran the following story:
"A THREE-YEAR crackdown on court examiners appointed to monitor the work of guardians for incapacitated persons has resulted in the removal of five examiners and the resignations of two others."
(Note: The investigation began sometime in 1995 or 1996.)
In 2001 the New York Daily News ran a series on guardianship abuse, aptly entitled "Milking the Helpless," which began with this headline:
"Attorneys are siphoning off millions from the elderly they have sworn to protect." May 20, 2001, pg. 1."
Click here for an example of abusive legal fee billing, (in violation of fiduciary rules)
(Isn't lawyer overbilling, billing for unnecessary services or billing "legal-fee" rates for services not required to be performed by a lawyer, the same as stealing?
You can't blame people for being dishonest when they know they aren't being watched. In fact, isn't overbilling one of the major causes of consumer dissatisfaction with lawyers?)
The publicity led to public hearings by a specially appointed Commission and an investigation by a newly appointed Special Inspector General (SIG) for Fiduciary Appointments.
The Commission report was issued in December 2001.
The SIG report was also issued in December 2001.
Neither report named names. Several judges left the bench rather than face charges.
The result?
New rules for fiduciary appointments, and a computerized system to track appointments and fee awards.
Click here for state court website; then click your "back " button to return.)
(You must use Internet Explorer as your browser to access the court website.)
This, almost 10 years after the "Crackdown on Court Examiners" began!
But who's really responsible? Here's the list:
* The organized bench and bar and their self-policing organizations, which don't seem to care how low they are sinking in the public esteem, and who punish the lawyer whistleblowers; * the corrupt judges - for perverting the law and not supervising the guardians properly. * the court examiners for being too greedy and refusing to do their work; * the appellate divisions - for not overseeing the court evaluators; * the Office of Court Administration - for not monitoring everything; * the legislators, for not holding oversight hearings and putting teeth in the guardian statutes; and * the executive branch (law enforcement), for not prosecuting complaints against lawyers and judges.
(Note: A recent AP report shows most Americans are convinced that political corruption is a deeply rooted problem, and that "people have a real distrust of their government.")
In February 2005 the Birnbaum Commission issued an updated report - with guess what recommendations?
"The Commission recommends establishing offices of `court examiner specialists' within the court system to monitor court examiner performance, review work product, ensure that all required accountings are being timely filed and expeditiously examined, and target cases that are out of compliance."
(Note: The various appellate divisions were supposed to be doing that in 1999!)
"The Commission also would support bringing the court examiner function in-house.
"The Commission recommends that the court system explore, initially on a limited or pilot basis, the viability of outsourcing the court examiner function to interested and appropriate outside nonprofit organizations.
"The Commission recommends that the Appellate Divisions adopt regular evaluation and reappointment systems for court examiners.
"The Commission recommends that the court system maintain strong internal controls and continue its efforts to develop an active and vigorous auditing system that deters wrongdoing and laxity."
(Note: This, six years after publication of "Crackdown on Court examiners"!)
More Money?
"The Commission recommends that the Appellate Divisions consider adjusting court examiner fees, which have not been increased since 1991, to help attract and retain competent court examiners. The Commission recommends that the Part 36 annual compensation limit be raised from $50,000 to $75,000 for court examiners."
What conclusion can we come to other than that there is obviously still no meaningful oversight, that they won't stop the bleeding, and that the fees are going up, up, up while the assets go down, down, down?
Wasn't the guardianship law supposed to PROTECT the assets of the AIP? This is surely a good law gone bad!
Click here for an example of a PROCEDURALLY UNLAWFUL GUARDIANSHIP (involving violation of constitutional protections, statutes, rules, and controlling authority)
Seeing the numerous violations, you must wonder whether that judge is simply incompetent or extremely corrupt! In addition to noncompliance with law as in the above example, there are other more nefarious tricks in use by the "bad guys."
Here's one of them: Intimidating Family Members:
When a family member petitions to be appointed as a guardian, the unethical lawyers (particularly those who make "guardianship" their prime business) will submit affidavits (or affirmations under penalty of perjury) in which they make "conclusory" statements maligning the family member(s), claiming they are not fit to be appointed as guardian.
"Conclusory statements" are those which are merely unproven allegations not supported by real evidence.
As a matter of law, they cannot stand alone, but must be subjected to an evidentiary hearing at which the accuser can be cross-examined, in order to determine their truth or falsity.
The corrupt judge, instead of holding such a "due-process" hearing where both sides can be heard, under oath (with or without a jury), simply accepts the conclusory statements and appoints a lawyer (or retired judge) instead - usually a law school buddy or a political crony.
(This is a violation of due process.)
Our investigation of court records disclosed that the "family blame game" is a popular modus operandi in use by unethical lawyers. When family members don't know their rights or how to legally oppose false allegations, the guardianship perps are left free to acquire the ward's assets for themselves, assisted by the corrupt judge, who will pervert the law rather than obey and apply it properly.
The Internet and more lately, the media, have made the public aware of just how bad the "justice" system is, but we're still getting only "lip service" from the powers-that-be about the loss of public trust in the integrity of the courts, with no meaningful change.
Question: Do you know why lawyer-legislators won't clean up the acts of their judiciary brethren?
Answer: They're afraid they may have to appear before them some day! Put the blame where it belongs - on everyone on the list above - all of whom do nothing meaningful to clean up the VERY SICK system.
How can these people permit such an outrage to continue all this long time, after so many individual complaints and the attendant media exposure?
THEY ARE ALL PLAYING DEAD, HOPING THE ROOF WON'T FALL IN!
This Should be in Ripley's Believe it or Not:
THERE IS A HIDDEN CONSEQUENCE OF THESE BAD GUARDIANSHIPS, WHICH IS SO IRONIC AS TO BE ALMOST UNBELIEVABLE:
THE VERY LAW WHICH WAS SUPPOSED TO PROTECT THE WARDS AND THE PUBLIC HAS BEEN SO PERVERTED THAT IT IS USED TO ABUSE THE WARDS AND HAS PLACED AN UNWANTED BURDEN ON THE PUBLIC!
The historical purpose of guardianship - or "lunatic proceedings" as they were long ago known - was for a conservator (now "guardian" or "conservator") to protect the alleged IP's person and property, and to keep the IP from becoming a public charge - this, under the police power of the state. The police power of the state arises from its duty to protect its citizens - "parens patriae"! Those adjudged (see below) to be incapacitated become wards of the State.
Is the law being served? In a word - "no"!
Lack of oversight - and growing corruption in the system have actually brought about a totally different result.
What Happens When the Money's Gone? The greedy, unethical guardian, after bleeding out the estate (whether through unnecessary and excessive legal fees or by outright theft), petitions the court to withdraw. How many bad guardians do you think have any sense of duty or obligation to stay on the assignment pro bono, without getting paid, when there is no money left?
THE WARD, WHOSE ASSETS HAVE DISAPPEARED, (AND FREQUENTLY, ALL THEIR PERSONAL PROPERTY AS WELL), NOW NEWLY INDIGENT,
IS FORCED INTO THE MEDICAID SYSTEM
AND HAS NOW IN FACT BECOME A PUBLIC CHARGE - AT TAXPAYER EXPENSE! (THE VERY THING THE LAW IS SUPPOSED TO PREVENT!)
Have you been victimized by a guardianship proceeding? Has the court provided due process of law?
AND NOW FOR THE $64,000 QUESTION:
Was the AIP ever truly "adjudged" incapacitated according to law, or has the entire process been a sham? Did the court actually have what we call statutory jurisdiction?
Was the "clear and convincing" evidence standard applied? The lawyers know, but they won't tell you! In your experience, have the fees charged been "reasonable?
Have all assets been properly accounted for?
If there's a Will, is it filed in court for safekeeping, or has it been hidden or altered?
Do you know?
Have you ever tried to get a prosecutor to investigate a lawyer or judge - and just been ignored?
Have you ever complained to a chief judge or administrator and gotten a boilerplate reply:
"If you don't like the decision, you can appeal or file a grievance"?
Have you ever tried to file an appeal or judicial or attorney grievance?
Was it dismissed, in a word, with nothing more? Have your individual pleas fallen on deaf ears?
Welcome to the Club - You have experienced JUDICIAL CORRUPTION!!!
Reform will never come from within the system unless and until there is a huge public outcry.
If you want reform, you have to work at it.
Together, we can see to it that the runaway guardianships end.
Did you know that now even minors with personal injury awards are targeted for guardianship (with the same asset depletion as the vulnerable elderly)?
We must protect them, their families, and the UNWARY TAXPAYERS.
If the states don't clean up their own acts, we must seek federal intervention to ensure that the laws will work as originally intended.
An Open Letter to Dr. Scott Nystrom, Ph.D, Exec. Dir.,
White House Conference on Aging,
-->
Write to Dr. Nystrom with your comments;
cut and paste a copy into a message to us.-->
CONTACT US:
VICTIMS OF GUARDIANS/CONSERVATORS (and Other Fiduciaries)
EMAIL: info@VictimsOfGuardians.net (Email attachments are not accepted)
REFERENCE LINKS: (Please report any dead links)
WHCoA Resolutions (See #19 and 20)
-->
2001 Report of the Commission on Fiduciary Appointments
2001 Special Inspector General's Report
2004 Grand Jury Report
2005 Report of the Birnbaum Commission on Fiduciary Appointments
NYS Guardian & Fiduciary Services
NYS Courts General Index
PROUD MEMBER OF THE "NEW" NASGA National Association to STOP Guardian Abuse STOPGuardianAbuse.org
http://nasga-stopguardianabuse.blogspot.com
OTHER LINKS:-->
2001-2008 ©
VictimsOfGuardians operates in the public interest.
Any copyrighted material included herein is distributed in accordance with the Fair Use section of 17 U.S.C. 107, in the interest of public research and education, without profit.
Many lawyers write articles suggesting advance directives, including a Durable Power of Attorney ("durable," meaning it remains in effect after a person becomes incapacitated).
Question: But what if you wind up in front of a corrupt judge who ignores the grantor's wishes? Answer: He can override any legal document executed by the AIP ("alleged incapacitated person.")
(Note: The person is only "alleged" to be incapacitated until they are legally adjudged to be incapacitated; then they are described as the "ward." They are actually wards of the State.
Question: Aren't there any safeguards against that?
Answer: That's up to your state legislators and prosecutors. An honest judge will hold a full evidentiary hearing to determine the validity of the prior Durable Power of Attorney - the issue being whether the AIP was incapacitated at the time of execution. A corrupt judge will not hold any hearing; he/she will just ignore the Power, and sometimes invalidate (with a stroke of the pen) even a Last Will and Testament, putting all sorts of liberties in the hands of the fiduciaries.
Question: Why would a judge do that?
Answer: By unlawfully overriding the powers granted, he can then put his academic or political buddies into the guardianship, to make-work and feast on fees.
Question: What is the quid pro quo; i.e., what's in it for him/her?
Answer: That we will not know until the prosecutors start prosecuting judicial corruption in a meaningful way.
Question: Do you know what your rights are?
Answer: IF YOU DON'T KNOW YOUR RIGHTS, YOU DON'T HAVE ANY!
THE GUARDIANSHIP PROBLEM IS NOT CONFINED TO ANY ONE STATE; the UNLAWFUL PROCEEDINGS and resultant FEEDING FRENZIES are rampant all across the country - anywhere there is money to be made!
Who gave lawyer-guardians a "License to Steal"?
The legislators did! And they gave them a shocking list of powers - including life/death decisions!
THE PROBLEM WITH GUARDIANSHIP - (This site was launched due to an unlawful guardianship experience in NY State, but is fairly typical of corrupt guardianships/conservatorships across the country.)
Some people have described it as a "bounty hunting" operation, with headhunters running computer searches for financial and personal data on potential victims who wind up in a hospital and transfer to a nursing home (whether by reason of illness or even just a fall on the sidewalk).
The nursing home lawyer or someone else then petitions for a guardianship. The assigned judge then distributes his patronage to his pals, in the form of fiduciary appointments as guardian, court evaluator, counsel to the AIP, etc.
Would it shock you to learn that there is no requirement in New York for mandatory counsel to represent a person believed to be incapacitated? It won't when you read on. Many adjudication "hearings" are held which are totally sham, replate with constitutional due process violations, and conducted in complete contravention of statutory protections promulgated by the states, and practice rules issued by the courts.
Who's supposed to watch the guardians?
The judges.
Who's been watching the judges? NO ONE!
Here's what we learned about guardianship in New York:
In January 1999, the New York Law Journal ran the following story:
"A THREE-YEAR crackdown on court examiners appointed to monitor the work of guardians for incapacitated persons has resulted in the removal of five examiners and the resignations of two others."
(Note: The investigation began sometime in 1995 or 1996.)
In 2001 the New York Daily News ran a series on guardianship abuse, aptly entitled "Milking the Helpless," which began with this headline:
"Attorneys are siphoning off millions from the elderly they have sworn to protect." May 20, 2001, pg. 1."
Click here for an example of abusive legal fee billing, (in violation of fiduciary rules)
(Isn't lawyer overbilling, billing for unnecessary services or billing "legal-fee" rates for services not required to be performed by a lawyer, the same as stealing?
You can't blame people for being dishonest when they know they aren't being watched. In fact, isn't overbilling one of the major causes of consumer dissatisfaction with lawyers?)
The publicity led to public hearings by a specially appointed Commission and an investigation by a newly appointed Special Inspector General (SIG) for Fiduciary Appointments.
The Commission report was issued in December 2001.
The SIG report was also issued in December 2001.
Neither report named names. Several judges left the bench rather than face charges.
The result?
New rules for fiduciary appointments, and a computerized system to track appointments and fee awards.
Click here for state court website; then click your "back " button to return.)
(You must use Internet Explorer as your browser to access the court website.)
This, almost 10 years after the "Crackdown on Court Examiners" began!
But who's really responsible? Here's the list:
* The organized bench and bar and their self-policing organizations, which don't seem to care how low they are sinking in the public esteem, and who punish the lawyer whistleblowers; * the corrupt judges - for perverting the law and not supervising the guardians properly. * the court examiners for being too greedy and refusing to do their work; * the appellate divisions - for not overseeing the court evaluators; * the Office of Court Administration - for not monitoring everything; * the legislators, for not holding oversight hearings and putting teeth in the guardian statutes; and * the executive branch (law enforcement), for not prosecuting complaints against lawyers and judges.
(Note: A recent AP report shows most Americans are convinced that political corruption is a deeply rooted problem, and that "people have a real distrust of their government.")
In February 2005 the Birnbaum Commission issued an updated report - with guess what recommendations?
"The Commission recommends establishing offices of `court examiner specialists' within the court system to monitor court examiner performance, review work product, ensure that all required accountings are being timely filed and expeditiously examined, and target cases that are out of compliance."
(Note: The various appellate divisions were supposed to be doing that in 1999!)
"The Commission also would support bringing the court examiner function in-house.
"The Commission recommends that the court system explore, initially on a limited or pilot basis, the viability of outsourcing the court examiner function to interested and appropriate outside nonprofit organizations.
"The Commission recommends that the Appellate Divisions adopt regular evaluation and reappointment systems for court examiners.
"The Commission recommends that the court system maintain strong internal controls and continue its efforts to develop an active and vigorous auditing system that deters wrongdoing and laxity."
(Note: This, six years after publication of "Crackdown on Court examiners"!)
More Money?
"The Commission recommends that the Appellate Divisions consider adjusting court examiner fees, which have not been increased since 1991, to help attract and retain competent court examiners. The Commission recommends that the Part 36 annual compensation limit be raised from $50,000 to $75,000 for court examiners."
What conclusion can we come to other than that there is obviously still no meaningful oversight, that they won't stop the bleeding, and that the fees are going up, up, up while the assets go down, down, down?
Wasn't the guardianship law supposed to PROTECT the assets of the AIP? This is surely a good law gone bad!
Click here for an example of a PROCEDURALLY UNLAWFUL GUARDIANSHIP (involving violation of constitutional protections, statutes, rules, and controlling authority)
Seeing the numerous violations, you must wonder whether that judge is simply incompetent or extremely corrupt! In addition to noncompliance with law as in the above example, there are other more nefarious tricks in use by the "bad guys."
Here's one of them: Intimidating Family Members:
When a family member petitions to be appointed as a guardian, the unethical lawyers (particularly those who make "guardianship" their prime business) will submit affidavits (or affirmations under penalty of perjury) in which they make "conclusory" statements maligning the family member(s), claiming they are not fit to be appointed as guardian.
"Conclusory statements" are those which are merely unproven allegations not supported by real evidence.
As a matter of law, they cannot stand alone, but must be subjected to an evidentiary hearing at which the accuser can be cross-examined, in order to determine their truth or falsity.
The corrupt judge, instead of holding such a "due-process" hearing where both sides can be heard, under oath (with or without a jury), simply accepts the conclusory statements and appoints a lawyer (or retired judge) instead - usually a law school buddy or a political crony.
(This is a violation of due process.)
Our investigation of court records disclosed that the "family blame game" is a popular modus operandi in use by unethical lawyers. When family members don't know their rights or how to legally oppose false allegations, the guardianship perps are left free to acquire the ward's assets for themselves, assisted by the corrupt judge, who will pervert the law rather than obey and apply it properly.
The Internet and more lately, the media, have made the public aware of just how bad the "justice" system is, but we're still getting only "lip service" from the powers-that-be about the loss of public trust in the integrity of the courts, with no meaningful change.
Question: Do you know why lawyer-legislators won't clean up the acts of their judiciary brethren?
Answer: They're afraid they may have to appear before them some day! Put the blame where it belongs - on everyone on the list above - all of whom do nothing meaningful to clean up the VERY SICK system.
How can these people permit such an outrage to continue all this long time, after so many individual complaints and the attendant media exposure?
THEY ARE ALL PLAYING DEAD, HOPING THE ROOF WON'T FALL IN!
This Should be in Ripley's Believe it or Not:
THERE IS A HIDDEN CONSEQUENCE OF THESE BAD GUARDIANSHIPS, WHICH IS SO IRONIC AS TO BE ALMOST UNBELIEVABLE:
THE VERY LAW WHICH WAS SUPPOSED TO PROTECT THE WARDS AND THE PUBLIC HAS BEEN SO PERVERTED THAT IT IS USED TO ABUSE THE WARDS AND HAS PLACED AN UNWANTED BURDEN ON THE PUBLIC!
The historical purpose of guardianship - or "lunatic proceedings" as they were long ago known - was for a conservator (now "guardian" or "conservator") to protect the alleged IP's person and property, and to keep the IP from becoming a public charge - this, under the police power of the state. The police power of the state arises from its duty to protect its citizens - "parens patriae"! Those adjudged (see below) to be incapacitated become wards of the State.
Is the law being served? In a word - "no"!
Lack of oversight - and growing corruption in the system have actually brought about a totally different result.
What Happens When the Money's Gone? The greedy, unethical guardian, after bleeding out the estate (whether through unnecessary and excessive legal fees or by outright theft), petitions the court to withdraw. How many bad guardians do you think have any sense of duty or obligation to stay on the assignment pro bono, without getting paid, when there is no money left?
THE WARD, WHOSE ASSETS HAVE DISAPPEARED, (AND FREQUENTLY, ALL THEIR PERSONAL PROPERTY AS WELL), NOW NEWLY INDIGENT,
IS FORCED INTO THE MEDICAID SYSTEM
AND HAS NOW IN FACT BECOME A PUBLIC CHARGE - AT TAXPAYER EXPENSE! (THE VERY THING THE LAW IS SUPPOSED TO PREVENT!)
Have you been victimized by a guardianship proceeding? Has the court provided due process of law?
AND NOW FOR THE $64,000 QUESTION:
Was the AIP ever truly "adjudged" incapacitated according to law, or has the entire process been a sham? Did the court actually have what we call statutory jurisdiction?
Was the "clear and convincing" evidence standard applied? The lawyers know, but they won't tell you! In your experience, have the fees charged been "reasonable?
Have all assets been properly accounted for?
If there's a Will, is it filed in court for safekeeping, or has it been hidden or altered?
Do you know?
Have you ever tried to get a prosecutor to investigate a lawyer or judge - and just been ignored?
Have you ever complained to a chief judge or administrator and gotten a boilerplate reply:
"If you don't like the decision, you can appeal or file a grievance"?
Have you ever tried to file an appeal or judicial or attorney grievance?
Was it dismissed, in a word, with nothing more? Have your individual pleas fallen on deaf ears?
Welcome to the Club - You have experienced JUDICIAL CORRUPTION!!!
Reform will never come from within the system unless and until there is a huge public outcry.
If you want reform, you have to work at it.
Together, we can see to it that the runaway guardianships end.
Did you know that now even minors with personal injury awards are targeted for guardianship (with the same asset depletion as the vulnerable elderly)?
We must protect them, their families, and the UNWARY TAXPAYERS.
If the states don't clean up their own acts, we must seek federal intervention to ensure that the laws will work as originally intended.
An Open Letter to Dr. Scott Nystrom, Ph.D, Exec. Dir.,
White House Conference on Aging,
-->
Write to Dr. Nystrom with your comments;
cut and paste a copy into a message to us.-->
CONTACT US:
VICTIMS OF GUARDIANS/CONSERVATORS (and Other Fiduciaries)
EMAIL: info@VictimsOfGuardians.net (Email attachments are not accepted)
REFERENCE LINKS: (Please report any dead links)
WHCoA Resolutions (See #19 and 20)
-->
2001 Report of the Commission on Fiduciary Appointments
2001 Special Inspector General's Report
2004 Grand Jury Report
2005 Report of the Birnbaum Commission on Fiduciary Appointments
NYS Guardian & Fiduciary Services
NYS Courts General Index
PROUD MEMBER OF THE "NEW" NASGA National Association to STOP Guardian Abuse STOPGuardianAbuse.org
http://nasga-stopguardianabuse.blogspot.com
OTHER LINKS:-->
2001-2008 ©
VictimsOfGuardians operates in the public interest.
Any copyrighted material included herein is distributed in accordance with the Fair Use section of 17 U.S.C. 107, in the interest of public research and education, without profit.
CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15750-15766
CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15750-15766
15750. The definitions contained in Chapter 11 (commencing with
Section 15600) shall govern the construction of this chapter.
15751. Each county welfare department shall establish and support a
system of protective services to elderly and dependent adults who
may be subjected to neglect, abuse, or exploitation, or who are
unable to protect their own interest.
This system shall be known as the county adult protective services
system.
15752. Each county shall establish and maintain a specialized
entity within the county welfare department which shall have lead
responsibility for the operation of the adult protective services
program.
15754. (a) Notwithstanding any provision of law governing the
disclosure of information and records, persons who are trained and
qualified to serve on multidisciplinary personnel teams may disclose
to one another information and records which are relevant to the
prevention, identification, or treatment of abuse of elderly or
dependent persons.
(b) Except as provided in subdivision (a), any personnel of the
multidisciplinary team that receives information pursuant to this
chapter, shall be under the same obligations and subject to the same
confidentiality penalties as the person disclosing or providing that
information. The information obtained shall be maintained in a
manner that ensures the maximum protection of privacy and
confidentiality rights.
15755. A law enforcement agency may seek a search warrant from a
magistrate pursuant to the procedures set forth in Chapter 3
(commencing with Section 1523) of Title 12 of Part 2 of the Penal
Code to enable a peace officer to have access to, and to inspect,
premises if a county welfare worker has been denied access to the
premises by the person or persons in possession of the premises and
there is probable cause to believe an elder or dependent adult on
those premises is subject to abuse. While executing the search
warrant the peace officer may allow a county welfare worker, or any
other appropriate person, to accompany him or her.
15760. Adult protective services shall include investigations,
needs assessments, remedial and preventive social work activities;
the necessary tangible resources such as food, transportation,
emergency shelter, and in-home protective care; the use of
multidisciplinary teams; and a system in which reporting of abuse can
occur on a 24-hour basis.
15762. When an allegation of abuse of an elder or dependent adult
is reported to a county designated adult protective service agency
and an agency social worker has reason to believe an elder or
dependent adult has suffered or is at substantial risk of abuse
pursuant to Section 15630, the social worker shall attempt to obtain
consent to enter and meet privately with the elder or dependent adult
about whom the report was made in the residence or dwelling in which
the elder or dependent adult resides without the presence of the
person's caretaker, attendant, or family or household member, unless
the person requests the presence of the attendant, care giver, or
family member, or refuses to meet with the social worker.
15763. (a) Each county shall establish an emergency response adult
protective services program that shall provide in-person response, 24
hours per day, seven days per week, to reports of abuse of an elder
or a dependent adult, for the purpose of providing immediate intake
or intervention, or both, to new reports involving immediate life
threats and to crises in existing cases. The program shall include
policies and procedures to accomplish all of the following:
(1) Provision of case management services that include
investigation of the protection issues, assessment of the person's
concerns, needs, strengths, problems, and limitations, stabilization
and linking with community services, and development of a service
plan to alleviate identified problems utilizing counseling,
monitoring, followup, and reassessment.
(2) Provisions for emergency shelter or in-home protection to
guarantee a safe place for the elder or dependent adult to stay until
the dangers at home can be resolved.
(3) Establishment of multidisciplinary teams to develop
interagency treatment strategies, to ensure maximum coordination with
existing community resources, to ensure maximum access on behalf of
elders and dependent adults, and to avoid duplication of efforts.
(b) (1) A county shall respond immediately to any report of
imminent danger to an elder or dependent adult residing in other than
a long-term care facility, as defined in Section 9701 of the Welfare
and Institutions Code, or a residential facility, as defined in
Section 1502 of the Health and Safety Code. For reports involving
persons residing in a long-term care facility or a residential care
facility, the county shall report to the local long-term care
ombudsman program. Adult protective services staff shall consult,
coordinate, and support efforts of the ombudsman program to protect
vulnerable residents. Except as specified in paragraph (2), the
county shall respond to all other reports of danger to an elder or
dependent adult in other than a long-term care facility or
residential care facility within 10 calendar days or as soon as
practicably possible.
(2) An immediate or 10-day in-person response is not required when
the county, based upon an evaluation of risk, determines and
documents that the elder or dependent adult is not in imminent danger
and that an immediate or 10-day in-person response is not necessary
to protect the health or safety of the elder or dependent adult.
(3) The State Department of Social Services, in consultation with
the County Welfare Directors Association, shall develop requirements
for implementation of paragraph (2), including, but not limited to,
guidelines for determining appropriate application of this section
and any applicable documentation requirements.
(4) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement the requirements developed pursuant to
paragraph (3) by means of all-county letters or similar instructions
prior to adopting regulations for that purpose. Thereafter, the
department shall adopt regulations in accordance with the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(c) A county shall not be required to report or respond to a
report pursuant to subdivision (b) that involves danger to an elder
or dependent adult residing in any facility for the incarceration of
prisoners that is operated by or under contract to the Federal Bureau
of Prisons, the Department of Corrections, the California Department
of the Youth Authority, a county sheriff's department, a county
probation department, a city police department, or any other law
enforcement agency when the abuse reportedly has occurred in that
facility.
(d) A county shall provide case management services to elders and
dependent adults who are determined to be in need of adult protective
services for the purpose of bringing about changes in the lives of
victims and to provide a safety net to enable victims to protect
themselves in the future. Case management services shall include the
following, to the extent services are appropriate for the
individual:
(1) Investigation of the protection issues, including, but not
limited to, social, medical, environmental, physical, emotional, and
developmental.
(2) Assessment of the person's concerns and needs on whom the
report has been made and the concerns and needs of other members of
the family and household.
(3) Analysis of problems and strengths.
(4) Establishment of a service plan for each person on whom the
report has been made to alleviate the identified problems.
(5) Client input and acceptance of proposed service plans.
(6) Counseling for clients and significant others to alleviate the
identified problems and to implement the service plan.
(7) Stabilizing and linking with community services.
(8) Monitoring and followup.
(9) Reassessments, as appropriate.
(e) To the extent resources are available, each county shall
provide emergency shelter in the form of a safe haven or in-home
protection for victims. Shelter and care appropriate to the needs of
the victim shall be provided for frail and disabled victims who are
in need of assistance with activities of daily living.
(f) Each county shall designate an adult protective services
agency to establish and maintain multidisciplinary teams including,
but not limited to, adult protective services, law enforcement,
probation departments, home health care agencies, hospitals, adult
protective services staff, the public guardian, private community
service agencies, public health agencies, and mental health agencies
for the purpose of providing interagency treatment strategies.
(g) Each county shall provide tangible support services, to the
extent resources are available, which may include, but not be limited
to, emergency food, clothing, repair or replacement of essential
appliances, plumbing and electrical repair, blankets, linens, and
other household goods, advocacy with utility companies, and emergency
response units.
15764. Notwithstanding Section 10101.1, a county shall have no
share of any nonfederal expenditures above the required expenditures
for this program in the 1996-97 fiscal year, provided that the county
has maintained the level of county matching funds it provided for
this program in the 1996-97 fiscal year.
15765. This chapter shall become operative on May 1, 1999.
Commencing with the 1999-2000 fiscal year, Sections 15760 to 15764,
inclusive, shall be implemented only to the extent funds are provided
in the annual Budget Act.
15766. The investigation of allegations of elder and dependent
adult abuse pursuant to this chapter, and the case management of
elder and dependent adult abuse cases shall be performed by county
merit systems civil service employees. A county adult protective
service agency may utilize a contracted private or nonprofit
telephone answering service after normal working hours and on
weekends and holidays. Such a contracted telephone service shall
immediately forward to a county merit systems civil service employee
any report of abuse or neglect of an elder or dependent adult, unless
the caller is: (a) requesting routine information only; (b)
reporting an incident of abuse which occurred prior to the date of
the call, which does not at the time of the call put the victim at
risk; or (c) requesting information not related to the adult
protective service program, and the person answering the telephone
meets the standards established by the department.
WELFARE AND INSTITUTIONS CODE
SECTION 15750-15766
15750. The definitions contained in Chapter 11 (commencing with
Section 15600) shall govern the construction of this chapter.
15751. Each county welfare department shall establish and support a
system of protective services to elderly and dependent adults who
may be subjected to neglect, abuse, or exploitation, or who are
unable to protect their own interest.
This system shall be known as the county adult protective services
system.
15752. Each county shall establish and maintain a specialized
entity within the county welfare department which shall have lead
responsibility for the operation of the adult protective services
program.
15754. (a) Notwithstanding any provision of law governing the
disclosure of information and records, persons who are trained and
qualified to serve on multidisciplinary personnel teams may disclose
to one another information and records which are relevant to the
prevention, identification, or treatment of abuse of elderly or
dependent persons.
(b) Except as provided in subdivision (a), any personnel of the
multidisciplinary team that receives information pursuant to this
chapter, shall be under the same obligations and subject to the same
confidentiality penalties as the person disclosing or providing that
information. The information obtained shall be maintained in a
manner that ensures the maximum protection of privacy and
confidentiality rights.
15755. A law enforcement agency may seek a search warrant from a
magistrate pursuant to the procedures set forth in Chapter 3
(commencing with Section 1523) of Title 12 of Part 2 of the Penal
Code to enable a peace officer to have access to, and to inspect,
premises if a county welfare worker has been denied access to the
premises by the person or persons in possession of the premises and
there is probable cause to believe an elder or dependent adult on
those premises is subject to abuse. While executing the search
warrant the peace officer may allow a county welfare worker, or any
other appropriate person, to accompany him or her.
15760. Adult protective services shall include investigations,
needs assessments, remedial and preventive social work activities;
the necessary tangible resources such as food, transportation,
emergency shelter, and in-home protective care; the use of
multidisciplinary teams; and a system in which reporting of abuse can
occur on a 24-hour basis.
15762. When an allegation of abuse of an elder or dependent adult
is reported to a county designated adult protective service agency
and an agency social worker has reason to believe an elder or
dependent adult has suffered or is at substantial risk of abuse
pursuant to Section 15630, the social worker shall attempt to obtain
consent to enter and meet privately with the elder or dependent adult
about whom the report was made in the residence or dwelling in which
the elder or dependent adult resides without the presence of the
person's caretaker, attendant, or family or household member, unless
the person requests the presence of the attendant, care giver, or
family member, or refuses to meet with the social worker.
15763. (a) Each county shall establish an emergency response adult
protective services program that shall provide in-person response, 24
hours per day, seven days per week, to reports of abuse of an elder
or a dependent adult, for the purpose of providing immediate intake
or intervention, or both, to new reports involving immediate life
threats and to crises in existing cases. The program shall include
policies and procedures to accomplish all of the following:
(1) Provision of case management services that include
investigation of the protection issues, assessment of the person's
concerns, needs, strengths, problems, and limitations, stabilization
and linking with community services, and development of a service
plan to alleviate identified problems utilizing counseling,
monitoring, followup, and reassessment.
(2) Provisions for emergency shelter or in-home protection to
guarantee a safe place for the elder or dependent adult to stay until
the dangers at home can be resolved.
(3) Establishment of multidisciplinary teams to develop
interagency treatment strategies, to ensure maximum coordination with
existing community resources, to ensure maximum access on behalf of
elders and dependent adults, and to avoid duplication of efforts.
(b) (1) A county shall respond immediately to any report of
imminent danger to an elder or dependent adult residing in other than
a long-term care facility, as defined in Section 9701 of the Welfare
and Institutions Code, or a residential facility, as defined in
Section 1502 of the Health and Safety Code. For reports involving
persons residing in a long-term care facility or a residential care
facility, the county shall report to the local long-term care
ombudsman program. Adult protective services staff shall consult,
coordinate, and support efforts of the ombudsman program to protect
vulnerable residents. Except as specified in paragraph (2), the
county shall respond to all other reports of danger to an elder or
dependent adult in other than a long-term care facility or
residential care facility within 10 calendar days or as soon as
practicably possible.
(2) An immediate or 10-day in-person response is not required when
the county, based upon an evaluation of risk, determines and
documents that the elder or dependent adult is not in imminent danger
and that an immediate or 10-day in-person response is not necessary
to protect the health or safety of the elder or dependent adult.
(3) The State Department of Social Services, in consultation with
the County Welfare Directors Association, shall develop requirements
for implementation of paragraph (2), including, but not limited to,
guidelines for determining appropriate application of this section
and any applicable documentation requirements.
(4) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement the requirements developed pursuant to
paragraph (3) by means of all-county letters or similar instructions
prior to adopting regulations for that purpose. Thereafter, the
department shall adopt regulations in accordance with the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(c) A county shall not be required to report or respond to a
report pursuant to subdivision (b) that involves danger to an elder
or dependent adult residing in any facility for the incarceration of
prisoners that is operated by or under contract to the Federal Bureau
of Prisons, the Department of Corrections, the California Department
of the Youth Authority, a county sheriff's department, a county
probation department, a city police department, or any other law
enforcement agency when the abuse reportedly has occurred in that
facility.
(d) A county shall provide case management services to elders and
dependent adults who are determined to be in need of adult protective
services for the purpose of bringing about changes in the lives of
victims and to provide a safety net to enable victims to protect
themselves in the future. Case management services shall include the
following, to the extent services are appropriate for the
individual:
(1) Investigation of the protection issues, including, but not
limited to, social, medical, environmental, physical, emotional, and
developmental.
(2) Assessment of the person's concerns and needs on whom the
report has been made and the concerns and needs of other members of
the family and household.
(3) Analysis of problems and strengths.
(4) Establishment of a service plan for each person on whom the
report has been made to alleviate the identified problems.
(5) Client input and acceptance of proposed service plans.
(6) Counseling for clients and significant others to alleviate the
identified problems and to implement the service plan.
(7) Stabilizing and linking with community services.
(8) Monitoring and followup.
(9) Reassessments, as appropriate.
(e) To the extent resources are available, each county shall
provide emergency shelter in the form of a safe haven or in-home
protection for victims. Shelter and care appropriate to the needs of
the victim shall be provided for frail and disabled victims who are
in need of assistance with activities of daily living.
(f) Each county shall designate an adult protective services
agency to establish and maintain multidisciplinary teams including,
but not limited to, adult protective services, law enforcement,
probation departments, home health care agencies, hospitals, adult
protective services staff, the public guardian, private community
service agencies, public health agencies, and mental health agencies
for the purpose of providing interagency treatment strategies.
(g) Each county shall provide tangible support services, to the
extent resources are available, which may include, but not be limited
to, emergency food, clothing, repair or replacement of essential
appliances, plumbing and electrical repair, blankets, linens, and
other household goods, advocacy with utility companies, and emergency
response units.
15764. Notwithstanding Section 10101.1, a county shall have no
share of any nonfederal expenditures above the required expenditures
for this program in the 1996-97 fiscal year, provided that the county
has maintained the level of county matching funds it provided for
this program in the 1996-97 fiscal year.
15765. This chapter shall become operative on May 1, 1999.
Commencing with the 1999-2000 fiscal year, Sections 15760 to 15764,
inclusive, shall be implemented only to the extent funds are provided
in the annual Budget Act.
15766. The investigation of allegations of elder and dependent
adult abuse pursuant to this chapter, and the case management of
elder and dependent adult abuse cases shall be performed by county
merit systems civil service employees. A county adult protective
service agency may utilize a contracted private or nonprofit
telephone answering service after normal working hours and on
weekends and holidays. Such a contracted telephone service shall
immediately forward to a county merit systems civil service employee
any report of abuse or neglect of an elder or dependent adult, unless
the caller is: (a) requesting routine information only; (b)
reporting an incident of abuse which occurred prior to the date of
the call, which does not at the time of the call put the victim at
risk; or (c) requesting information not related to the adult
protective service program, and the person answering the telephone
meets the standards established by the department.
CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 4900-4906
CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 4900-4906
4900. (a) The definitions contained in this section shall govern
the construction of this division, unless the context requires
otherwise. These definitions shall not be construed to alter or
impact the definitions or other provisions of the Elder and Dependent
Adult Civil Protection Act (Chapter 11 (commencing with Section
15600), or Chapter 13 (commencing with Section 15750), of Part 3 of
Division 9.
(b) "Abuse" means an act, or failure to act, that would constitute
abuse as that term is defined in federal regulations pertaining to
the authority of protection and advocacy agencies, including Section
51.2 of Title 42 of the Code of Federal Regulations or Section
1386.19 of Title 45 of the Code of Federal Regulations. "Abuse" also
means an act, or failure to act, that would constitute abuse as that
term is defined in Section 15610.07 of the Welfare and Institutions
Code or Section 11165.6 of the Penal Code.
(c) "Complaint" has the same meaning as "complaint" as defined in
federal statutes and regulations pertaining to the authority of
protection and advocacy agencies, including Section 10802(1) of Title
42 of the United States Code, Section 51.2 of Title 42 of the Code
of Federal Regulations, or Section 1386.19 of Title 45 of the Code of
Federal Regulations.
(d) "Disability" means a developmental disability, as defined in
Section 15002(8) of Title 42 of the United States Code, a mental
illness, as defined in Section 10802(4) of Title 42 of the United
States Code, a disability within the meaning of the Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as defined
in Section 12102(2) of Title 42 of the United States Code, or a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(e) "Facility" or "program" means a public or private facility or
program providing services, support, care, or treatment to persons
with disabilities, even if only on an as-needed basis or under
contractual arrangement. "Facility" or "program" includes, but is
not limited to, a hospital, a long-term health care facility, a
community living arrangement for people with disabilities, including
a group home, a board and care home, an individual residence or
apartment of a person with a disability where services are provided,
a day program, a juvenile detention facility, a homeless shelter, a
jail, or a prison, including all general areas, as well as special,
mental health, or forensic units. The term includes any facility
licensed under Division 2 (commencing with Section 1200) of the
Health and Safety Code and any facility that is unlicensed but is not
exempt from licensure as provided in subdivision (a) of Section
1503.5 of the Health and Safety Code. The term also includes a
public or private school or other institution or program providing
education, training, habilitation, therapeutic, or residential
services to persons with disabilities.
(f) "Legal guardian," "conservator," or "legal representative,"
means a person appointed by a state court or agency empowered under
state law to appoint and review the legal guardian, conservator, or
legal representative, as appropriate. With respect to an individual
described under paragraph (2) of subdivision (i), this person is one
who has the legal authority to consent to health or mental health
care or treatment on behalf of the individual. With respect to an
individual described under paragraphs (1) or (3) of subdivision (i),
this person is one who has the legal authority to make all decisions
on behalf of the individual. These terms include the parent of a
minor who has legal custody of the minor. These terms do not include
a person acting solely as a representative payee, a person acting
solely to handle financial matters, an attorney or other person
acting on behalf of an individual with a disability solely in
individual legal matters, or an official or his or her designee who
is responsible for the provision of treatment or services to an
individual with a disability.
(g) "Neglect" means a negligent act, or omission to act, that
would constitute neglect as that term is defined in federal statutes
and regulations pertaining to the authority of protection and
advocacy agencies, including Section 10802(5) of Title 42 of the
United States Code, Section 51.2 of Title 42 of the Code of Federal
Regulations, or Section 1386.19 of Title 45 of the Code of Federal
Regulations. "Neglect" also means a negligent act, or omission to
act, that would constitute neglect as that term is defined in
subdivision (b) of Section 15610.07 of the Welfare and Institutions
Code or Section 11165.2 of the Penal Code.
(h) "Probable cause" to believe that an individual has been
subject to abuse or neglect, or is at significant risk of being
subjected to abuse or neglect, exists when the protection and
advocacy agency determines that it is objectively reasonable for a
person to entertain that belief. The individual making a probable
cause determination may base the decision on reasonable inferences
drawn from his or her experience or training regarding similar
incidents, conditions, or problems that are usually associated with
abuse or neglect. Information supporting a probable cause
determination may result from monitoring or other activities,
including, but not limited to, media reports and newspaper articles.
(i) "Protection and advocacy agency" means the private nonprofit
corporation designated by the Governor in this state pursuant to
federal law for the protection and advocacy of the rights of persons
with disabilities, including the following:
(1) People with developmental disabilities, as authorized under
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000, contained in Chapter 144 (commencing with Section 15001)
of Title 42 of the United States Code.
(2) People with mental illness, as authorized under the federal
Protection and Advocacy for Mentally Ill Individuals Amendments Act
of 1991, contained in Chapter 114 (commencing with Section 10801) of
Title 42 of the United States Code.
(3) People with disabilities within the meaning of the Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) as
defined in Section 12102(2) of Title 42 of the United States Code,
who do not have a developmental disability as defined in Section
15002(8) of Title 42 of the United States Code, people with a mental
illness as defined in Section 10802(4) of Title 42 of the United
States Code, and who are receiving services under the federal
Protection and Advocacy of Individual Rights Act as defined in
Section 794e of Title 29 of the United States Code, or people with a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(j) "Reasonable unaccompanied access" means access that permits
the protection and advocacy agency, without undue interference, to
monitor, inspect, and observe conditions in facilities and programs,
to meet and communicate with residents and service recipients
privately and confidentially on a regular basis, formally or
informally, by telephone, mail, electronic mail, and in person, and
to review records privately and confidentially, in a manner that
minimizes interference with the activities of the program or service,
that respects residents' privacy interests and honors a resident's
request to terminate an interview, and that does not jeopardize the
physical health or safety of facility or program staff, residents,
service recipients, or protection and advocacy agency staff.
4901. (a) The protection and advocacy agency, for purposes of this
division, shall be a private nonprofit corporation and shall meet all
of the requirements of federal law applicable to protection and
advocacy systems, including, but not limited to, the requirement that
it establish a grievance procedure for clients or prospective
clients of the system to ensure that people with disabilities have
full access to services of the system.
(b) State officers and employees, in taking any action relating to
the protection and advocacy agency, shall meet the requirements of
federal law applicable to protection and advocacy systems.
(c) The authority of the protection and advocacy agency set forth
in this division shall not diminish the authority of the protection
and advocacy agency under federal statutes pertaining to the
authority of protection and advocacy systems, or under federal rules
and regulations adopted in implementation of those statutes.
(d) Nothing in this division shall be construed to supplant the
jurisdiction or the responsibilities of adult protective services
programs pursuant to Chapter 11 (commencing with Section 15600), or
Chapter 13 (commencing with Section 15750), of Part 3 of Division 9.
(e) (1) Nothing in this division shall be construed to supplant
the duties or authority of the State Long-Term Care Ombudsman Program
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The protection and advocacy agency shall cooperate with the
Office of the State Long-Term Care Ombudsman when appropriate, as
provided in Section 9717.
(f) (1) Nothing in this division shall be construed to alter or
impact the Elder and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600), or Chapter 13 (commencing with
Section 15750), of Part 3 of Division 9, including the
confidentiality requirements of Section 15633 and the legal
responsibility of the protection and advocacy agency to report elder
or dependent adult abuse or neglect as required by paragraph (1) of
subdivision (b) of Section 15630.
(2) The adult protective services agency shall retain the
responsibility to investigate any report of abuse or neglect in
accordance with Chapter 13 (commencing with Section 15750) of Part 3
of Division 9 when the reported abuse or neglect is within the
jurisdiction of the adult protective services agency.
4902. (a) The protection and advocacy agency, in protecting and
advocating for the rights of people with disabilities, pursuant to
the federal mandate, may do all of the following:
(1) Investigate any incident of abuse or neglect of any person
with a disability if the incident is reported to the protection and
advocacy agency or if the protection and advocacy agency determines
there is probable cause to believe the abuse or neglect occurred.
This authority shall include reasonable access to a facility or
program and authority to examine all relevant records and interview
any facility or program service recipient, employee, or other person
who might have knowledge of the alleged abuse or neglect.
(2) Pursue administrative, legal, and other appropriate remedies
or approaches to ensure the protection of the rights of people with
disabilities.
(3) Provide information and training on, and referral to, programs
and services addressing the needs of people with disabilities,
including information and training regarding individual rights and
the services available from the protection and advocacy agency.
(b) The protection and advocacy agency shall, in addition, have
reasonable access to facilities or programs in the state that provide
care and treatment to people with disabilities, and access to those
persons.
(1) The protection and advocacy agency shall have reasonable
unaccompanied access to public or private facilities, programs, and
services, and to recipients of services therein, at all times as are
necessary to investigate incidents of abuse and neglect in accord
with paragraph (1) of subdivision (a). Access shall be afforded,
upon request, to the agency when any of the following has occurred:
(A) An incident is reported or a complaint is made to the agency.
(B) The agency determines there is probable cause to believe that
an incident has or may have occurred.
(C) The agency determines that there is or may be imminent danger
of serious abuse or neglect of an individual with a disability.
(2) The protection and advocacy agency shall have reasonable
unaccompanied access to public and private facilities, programs, and
services, and recipients of services therein during normal working
hours and visiting hours for other advocacy services. In the case of
information and training services, access shall be at times mutually
agreeable to the protection and advocacy agency and facility
management. This access shall be for the purpose of any of the
following:
(A) Providing information and training on, and referral to
programs addressing the needs of, individuals with disabilities, and
information and training on individual rights and the protection and
advocacy services available from the agency, including, but not
limited to, the name, address, and telephone number of the protection
and advocacy agency.
(B) Monitoring compliance with respect to the rights and safety of
residents or service recipients.
(C) Inspecting, viewing, and photographing all areas of the
facility or program that are used by residents or service recipients,
or that are accessible to them.
(c) If the protection and advocacy agency's access to facilities,
programs, service recipients, residents, or records covered by this
division is delayed or denied by a facility, program, or service, the
facility, program, or service shall promptly provide the agency with
a written statement of reasons. In the case of denial of access for
alleged lack of authorization, the facility, program, or service
shall promptly provide to the agency the name, address, and telephone
number of the legal guardian, conservator, or other legal
representative of the individual with a disability for whom
authorization is required. Access to a facility, program, service
recipient, resident, or to records, shall not be delayed or denied
without the prompt provision of a written statement of the reasons
for the denial.
(d) The protection and advocacy agency may not enter an individual
residence or apartment of a client or his or her family without the
consent of an adult occupant. In the absence of this consent, the
protection and advocacy agency may enter only if it has obtained the
legal authority to enforce its access authority pursuant to legal
remedies available under this division or applicable federal law.
(e) A care provider, including, but not limited to, any
individual, state entity, or other organization that is required to
respond to these requests, may charge a reasonable fee to cover the
cost of copying records pursuant to this division that may take into
account the costs incurred by the care provider in locating,
identifying, and making the records available as required pursuant to
this division. Charges for copying records that would otherwise be
available to the protection and advocacy agency or the person with a
disability whose records are requested, under other statutes
providing for access to records, may not exceed any rates for
obtaining copies of the records specified in the applicable
provisions.
4903. (a) The protection and advocacy agency shall have access to
the records of any of the following people with disabilities:
(1) Any person who is a client of the agency, or any person who
has requested assistance from the agency, if that person or the agent
designated by that person, or the legal guardian, conservator, or
other legal representative of that person, has authorized the
protection and advocacy agency to have access to the records and
information. If a person with a disability who is able to authorize
the protection and advocacy agency to access his or her records
expressly denies this access after being informed by the protection
and advocacy agency of his or her right to authorize or deny access,
the protection and advocacy agency may not have access to that person'
s records.
(2) Any person, including any individual who cannot be located, to
whom all of the following conditions apply:
(A) The individual, due to his or her mental or physical
condition, is unable to authorize the protection and advocacy agency
to have access to his or her records.
(B) The individual does not have a legal guardian, conservator, or
other legal representative, or the individual's representative is a
public entity, including the state or one of its political
subdivisions.
(C) The protection and advocacy agency has received a complaint
that the individual has been subject to abuse or neglect, or has
determined that probable cause exists to believe that the individual
has been subject to abuse or neglect.
(3) Any person who is deceased, and for whom the protection and
advocacy agency has received a complaint that the individual had been
subjected to abuse or neglect, or for whom the agency has determined
that probable cause exists to believe that the individual had been
subjected to abuse or neglect.
(4) Any person who has a legal guardian, conservator, or other
legal representative with respect to whom a complaint has been
received by the protection and advocacy agency, or with respect to
whom the protection and advocacy agency has determined that probable
cause exists to believe that the person has been subjected to abuse
or neglect, whenever all of the following conditions exist:
(A) The representative has been contacted by the protection and
advocacy agency upon receipt of the representative's name and
address.
(B) The protection and advocacy agency has offered assistance to
the representatives to resolve the situation.
(C) The representative has failed or refused to act on behalf of
the person.
(b) Individual records that shall be available to the protection
and advocacy agency under this section shall include, but not be
limited to, all of the following information and records related to
the investigation, whether written or in another medium, draft or
final, including, but not limited to, handwritten notes, electronic
files, photographs, videotapes, or audiotapes:
(1) Information and records prepared or received in the course of
providing intake, assessment, evaluation, education, training, or
other supportive services, including, but not limited to, medical
records, financial records, monitoring reports, or other reports,
prepared or received by a member of the staff of a facility, program,
or service that is providing care, treatment, or services.
(2) Reports prepared by an agency charged with investigating
reports of incidents of abuse, neglect, injury, or death occurring at
the program, facility, or service while the individual with a
disability is under the care of a member of the staff of a program,
facility, or service, or by or for a program, facility, or service,
that describe any or all of the following:
(A) Abuse, neglect, injury, or death.
(B) The steps taken to investigate the incidents.
(C) Reports and records, including, but not limited to, personnel
records prepared or maintained by the facility, program, or service
in connection with reports of incidents, subject to the following:
(i) If a state statute specifies procedures with respect to
personnel records, the protection and advocacy agency shall follow
those procedures.
(ii) Personnel records shall be protected from disclosure in
compliance with the fundamental right of privacy established pursuant
to Section 1 of Article I of the California Constitution. The
custodian of personnel records shall have a right and a duty to
resist attempts to allow the unauthorized disclosure of personnel
records, and may not waive the privacy rights that are guaranteed
pursuant to Section 1 of Article I of the California Constitution.
(D) Supporting information that was relied upon in creating a
report, including, but not limited to, all information and records
that document interviews with persons who were interviewed, physical
and documentary evidence that was reviewed, or related investigative
findings.
(3) Discharge planning records.
(c) Information in the possession of a program, facility, or
service that must be available to the agency investigating instances
of abuse or neglect pursuant to paragraph (1) of subdivision (a) of
Section 4902, whether written or in another medium, draft or final,
including, but not limited to, handwritten notes, electronic files,
photographs, videotapes, audiotapes, or records, shall include, but
not be limited to, all of the following:
(1) Information in reports prepared by individuals and entities
performing certification or licensure reviews, or by professional
accreditation organizations, as well as related assessments prepared
for a program, facility, or service by its staff, contractors, or
related entities, subject to any other provision of state law
protecting records produced by medical care evaluation or peer review
committees.
(2) Information in professional, performance, building, or other
safety standards, or demographic and statistical information,
relating to the facility.
(d) The authority of the protection and advocacy agency to have
access to records does not supersede any prohibition on discovery
specified in Sections 1157 and 1157.6 of the Evidence Code, nor does
it supersede any prohibition on disclosure subject to the
physician-patient privilege or the psychotherapist-patient privilege.
(e) (1) The protection and advocacy agency shall have access to
records of individuals described in paragraph (1) of subdivision (a)
of Section 4902 and in subdivision (a), and other records that are
relevant to conducting an investigation, under the circumstances
described in those subdivisions, not later than three business days
after the agency makes a written request for the records involved.
(2) The protection and advocacy agency shall have immediate access
to the records, not later than 24 hours after the agency makes a
request, without consent from another party, in a situation in which
treatment, services, supports, or other assistance is provided to an
individual with a disability, if the agency determines there is
probable cause to believe that the health or safety of the individual
is in serious and immediate jeopardy, or in a case of death of an
individual with a disability.
(f) Confidential information kept or obtained by the protection
and advocacy agency shall remain confidential and may not be subject
to disclosure. This subdivision shall not, however, prevent the
protection and advocacy agency from doing any of the following:
(1) Sharing the information with the individual client who is the
subject of the record or report or other document, or with his or her
legally authorized representative, subject to any limitation on
disclosure to recipients of mental health services as provided in
subsection (b) of Section 10806 of Title 42 of the United States
Code.
(2) Issuing a public report of the results of an investigation
that maintains the confidentiality of individual service recipients.
(3) Reporting the results of an investigation to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility, its staff, or employees
warranting possible sanctions or corrective action. This information
may be reported to agencies that are responsible for facility
licensing or accreditation, employee discipline, employee licensing
or certification suspension or revocation, or criminal prosecution.
(4) Pursuing alternative remedies, including the initiation of
legal action.
(5) Reporting suspected elder or dependent adult abuse pursuant to
the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600) of Part 3 of Division 9).
(g) The protection and advocacy agency shall inform and train
employees as appropriate regarding the confidentiality of client
records.
4904. (a) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for an injury resulting from
an employee's or agent's act or omission where the act or omission
was the result of the exercise, in good faith, of the discretion
vested in him or her.
(b) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for damages awarded under
Section 3294 of the Civil Code or other damages imposed primarily for
the sake of example and by way of punishing the defendant.
(c) The protection and advocacy agency, its employees, and
designated agents, when participating in filing a complaint or
providing information pursuant to this division or participating in a
judicial proceeding resulting therefrom shall be presumed to be
acting in good faith and unless the presumption is rebutted, shall be
immune from any liability, civil or criminal, and shall be immune
from any penalty, sanction, or restriction that might be incurred or
imposed.
4905. (a) No employee or agent of a facility, program, or service
shall subject a person with a disability to reprisal or harassment or
directly or indirectly take or threaten to take any action that
would prevent the person, his or her legally authorized
representative, or family member from reporting or otherwise bringing
to the attention of the protection and advocacy agency any facts or
information relative to suspected abuse, neglect, or other violations
of the person's rights.
(b) Any attempt to involuntarily remove from a facility, program,
or service, or to deny privileges or rights without good cause to a
person with a disability by whom or for whom a complaint has been
made to the protection and advocacy agency, within 60 days after the
date the complaint is made or within 60 days after the conclusion of
any proceeding resulting from the complaint, shall raise a
presumption that the action was taken in retaliation for the filing
of the complaint.
4906. (a) The protection and advocacy agency may not obtain access
through the use of physical force to facilities, programs, service
recipients, residents, or records required by the division if this
access is delayed or denied.
(b) Notwithstanding subdivision (a), nothing in this division is
intended to preclude the protection and advocacy agency from pursuing
appropriate legal remedies to enforce its access authority under
this division or applicable federal law.
WELFARE AND INSTITUTIONS CODE
SECTION 4900-4906
4900. (a) The definitions contained in this section shall govern
the construction of this division, unless the context requires
otherwise. These definitions shall not be construed to alter or
impact the definitions or other provisions of the Elder and Dependent
Adult Civil Protection Act (Chapter 11 (commencing with Section
15600), or Chapter 13 (commencing with Section 15750), of Part 3 of
Division 9.
(b) "Abuse" means an act, or failure to act, that would constitute
abuse as that term is defined in federal regulations pertaining to
the authority of protection and advocacy agencies, including Section
51.2 of Title 42 of the Code of Federal Regulations or Section
1386.19 of Title 45 of the Code of Federal Regulations. "Abuse" also
means an act, or failure to act, that would constitute abuse as that
term is defined in Section 15610.07 of the Welfare and Institutions
Code or Section 11165.6 of the Penal Code.
(c) "Complaint" has the same meaning as "complaint" as defined in
federal statutes and regulations pertaining to the authority of
protection and advocacy agencies, including Section 10802(1) of Title
42 of the United States Code, Section 51.2 of Title 42 of the Code
of Federal Regulations, or Section 1386.19 of Title 45 of the Code of
Federal Regulations.
(d) "Disability" means a developmental disability, as defined in
Section 15002(8) of Title 42 of the United States Code, a mental
illness, as defined in Section 10802(4) of Title 42 of the United
States Code, a disability within the meaning of the Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as defined
in Section 12102(2) of Title 42 of the United States Code, or a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(e) "Facility" or "program" means a public or private facility or
program providing services, support, care, or treatment to persons
with disabilities, even if only on an as-needed basis or under
contractual arrangement. "Facility" or "program" includes, but is
not limited to, a hospital, a long-term health care facility, a
community living arrangement for people with disabilities, including
a group home, a board and care home, an individual residence or
apartment of a person with a disability where services are provided,
a day program, a juvenile detention facility, a homeless shelter, a
jail, or a prison, including all general areas, as well as special,
mental health, or forensic units. The term includes any facility
licensed under Division 2 (commencing with Section 1200) of the
Health and Safety Code and any facility that is unlicensed but is not
exempt from licensure as provided in subdivision (a) of Section
1503.5 of the Health and Safety Code. The term also includes a
public or private school or other institution or program providing
education, training, habilitation, therapeutic, or residential
services to persons with disabilities.
(f) "Legal guardian," "conservator," or "legal representative,"
means a person appointed by a state court or agency empowered under
state law to appoint and review the legal guardian, conservator, or
legal representative, as appropriate. With respect to an individual
described under paragraph (2) of subdivision (i), this person is one
who has the legal authority to consent to health or mental health
care or treatment on behalf of the individual. With respect to an
individual described under paragraphs (1) or (3) of subdivision (i),
this person is one who has the legal authority to make all decisions
on behalf of the individual. These terms include the parent of a
minor who has legal custody of the minor. These terms do not include
a person acting solely as a representative payee, a person acting
solely to handle financial matters, an attorney or other person
acting on behalf of an individual with a disability solely in
individual legal matters, or an official or his or her designee who
is responsible for the provision of treatment or services to an
individual with a disability.
(g) "Neglect" means a negligent act, or omission to act, that
would constitute neglect as that term is defined in federal statutes
and regulations pertaining to the authority of protection and
advocacy agencies, including Section 10802(5) of Title 42 of the
United States Code, Section 51.2 of Title 42 of the Code of Federal
Regulations, or Section 1386.19 of Title 45 of the Code of Federal
Regulations. "Neglect" also means a negligent act, or omission to
act, that would constitute neglect as that term is defined in
subdivision (b) of Section 15610.07 of the Welfare and Institutions
Code or Section 11165.2 of the Penal Code.
(h) "Probable cause" to believe that an individual has been
subject to abuse or neglect, or is at significant risk of being
subjected to abuse or neglect, exists when the protection and
advocacy agency determines that it is objectively reasonable for a
person to entertain that belief. The individual making a probable
cause determination may base the decision on reasonable inferences
drawn from his or her experience or training regarding similar
incidents, conditions, or problems that are usually associated with
abuse or neglect. Information supporting a probable cause
determination may result from monitoring or other activities,
including, but not limited to, media reports and newspaper articles.
(i) "Protection and advocacy agency" means the private nonprofit
corporation designated by the Governor in this state pursuant to
federal law for the protection and advocacy of the rights of persons
with disabilities, including the following:
(1) People with developmental disabilities, as authorized under
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000, contained in Chapter 144 (commencing with Section 15001)
of Title 42 of the United States Code.
(2) People with mental illness, as authorized under the federal
Protection and Advocacy for Mentally Ill Individuals Amendments Act
of 1991, contained in Chapter 114 (commencing with Section 10801) of
Title 42 of the United States Code.
(3) People with disabilities within the meaning of the Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) as
defined in Section 12102(2) of Title 42 of the United States Code,
who do not have a developmental disability as defined in Section
15002(8) of Title 42 of the United States Code, people with a mental
illness as defined in Section 10802(4) of Title 42 of the United
States Code, and who are receiving services under the federal
Protection and Advocacy of Individual Rights Act as defined in
Section 794e of Title 29 of the United States Code, or people with a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(j) "Reasonable unaccompanied access" means access that permits
the protection and advocacy agency, without undue interference, to
monitor, inspect, and observe conditions in facilities and programs,
to meet and communicate with residents and service recipients
privately and confidentially on a regular basis, formally or
informally, by telephone, mail, electronic mail, and in person, and
to review records privately and confidentially, in a manner that
minimizes interference with the activities of the program or service,
that respects residents' privacy interests and honors a resident's
request to terminate an interview, and that does not jeopardize the
physical health or safety of facility or program staff, residents,
service recipients, or protection and advocacy agency staff.
4901. (a) The protection and advocacy agency, for purposes of this
division, shall be a private nonprofit corporation and shall meet all
of the requirements of federal law applicable to protection and
advocacy systems, including, but not limited to, the requirement that
it establish a grievance procedure for clients or prospective
clients of the system to ensure that people with disabilities have
full access to services of the system.
(b) State officers and employees, in taking any action relating to
the protection and advocacy agency, shall meet the requirements of
federal law applicable to protection and advocacy systems.
(c) The authority of the protection and advocacy agency set forth
in this division shall not diminish the authority of the protection
and advocacy agency under federal statutes pertaining to the
authority of protection and advocacy systems, or under federal rules
and regulations adopted in implementation of those statutes.
(d) Nothing in this division shall be construed to supplant the
jurisdiction or the responsibilities of adult protective services
programs pursuant to Chapter 11 (commencing with Section 15600), or
Chapter 13 (commencing with Section 15750), of Part 3 of Division 9.
(e) (1) Nothing in this division shall be construed to supplant
the duties or authority of the State Long-Term Care Ombudsman Program
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The protection and advocacy agency shall cooperate with the
Office of the State Long-Term Care Ombudsman when appropriate, as
provided in Section 9717.
(f) (1) Nothing in this division shall be construed to alter or
impact the Elder and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600), or Chapter 13 (commencing with
Section 15750), of Part 3 of Division 9, including the
confidentiality requirements of Section 15633 and the legal
responsibility of the protection and advocacy agency to report elder
or dependent adult abuse or neglect as required by paragraph (1) of
subdivision (b) of Section 15630.
(2) The adult protective services agency shall retain the
responsibility to investigate any report of abuse or neglect in
accordance with Chapter 13 (commencing with Section 15750) of Part 3
of Division 9 when the reported abuse or neglect is within the
jurisdiction of the adult protective services agency.
4902. (a) The protection and advocacy agency, in protecting and
advocating for the rights of people with disabilities, pursuant to
the federal mandate, may do all of the following:
(1) Investigate any incident of abuse or neglect of any person
with a disability if the incident is reported to the protection and
advocacy agency or if the protection and advocacy agency determines
there is probable cause to believe the abuse or neglect occurred.
This authority shall include reasonable access to a facility or
program and authority to examine all relevant records and interview
any facility or program service recipient, employee, or other person
who might have knowledge of the alleged abuse or neglect.
(2) Pursue administrative, legal, and other appropriate remedies
or approaches to ensure the protection of the rights of people with
disabilities.
(3) Provide information and training on, and referral to, programs
and services addressing the needs of people with disabilities,
including information and training regarding individual rights and
the services available from the protection and advocacy agency.
(b) The protection and advocacy agency shall, in addition, have
reasonable access to facilities or programs in the state that provide
care and treatment to people with disabilities, and access to those
persons.
(1) The protection and advocacy agency shall have reasonable
unaccompanied access to public or private facilities, programs, and
services, and to recipients of services therein, at all times as are
necessary to investigate incidents of abuse and neglect in accord
with paragraph (1) of subdivision (a). Access shall be afforded,
upon request, to the agency when any of the following has occurred:
(A) An incident is reported or a complaint is made to the agency.
(B) The agency determines there is probable cause to believe that
an incident has or may have occurred.
(C) The agency determines that there is or may be imminent danger
of serious abuse or neglect of an individual with a disability.
(2) The protection and advocacy agency shall have reasonable
unaccompanied access to public and private facilities, programs, and
services, and recipients of services therein during normal working
hours and visiting hours for other advocacy services. In the case of
information and training services, access shall be at times mutually
agreeable to the protection and advocacy agency and facility
management. This access shall be for the purpose of any of the
following:
(A) Providing information and training on, and referral to
programs addressing the needs of, individuals with disabilities, and
information and training on individual rights and the protection and
advocacy services available from the agency, including, but not
limited to, the name, address, and telephone number of the protection
and advocacy agency.
(B) Monitoring compliance with respect to the rights and safety of
residents or service recipients.
(C) Inspecting, viewing, and photographing all areas of the
facility or program that are used by residents or service recipients,
or that are accessible to them.
(c) If the protection and advocacy agency's access to facilities,
programs, service recipients, residents, or records covered by this
division is delayed or denied by a facility, program, or service, the
facility, program, or service shall promptly provide the agency with
a written statement of reasons. In the case of denial of access for
alleged lack of authorization, the facility, program, or service
shall promptly provide to the agency the name, address, and telephone
number of the legal guardian, conservator, or other legal
representative of the individual with a disability for whom
authorization is required. Access to a facility, program, service
recipient, resident, or to records, shall not be delayed or denied
without the prompt provision of a written statement of the reasons
for the denial.
(d) The protection and advocacy agency may not enter an individual
residence or apartment of a client or his or her family without the
consent of an adult occupant. In the absence of this consent, the
protection and advocacy agency may enter only if it has obtained the
legal authority to enforce its access authority pursuant to legal
remedies available under this division or applicable federal law.
(e) A care provider, including, but not limited to, any
individual, state entity, or other organization that is required to
respond to these requests, may charge a reasonable fee to cover the
cost of copying records pursuant to this division that may take into
account the costs incurred by the care provider in locating,
identifying, and making the records available as required pursuant to
this division. Charges for copying records that would otherwise be
available to the protection and advocacy agency or the person with a
disability whose records are requested, under other statutes
providing for access to records, may not exceed any rates for
obtaining copies of the records specified in the applicable
provisions.
4903. (a) The protection and advocacy agency shall have access to
the records of any of the following people with disabilities:
(1) Any person who is a client of the agency, or any person who
has requested assistance from the agency, if that person or the agent
designated by that person, or the legal guardian, conservator, or
other legal representative of that person, has authorized the
protection and advocacy agency to have access to the records and
information. If a person with a disability who is able to authorize
the protection and advocacy agency to access his or her records
expressly denies this access after being informed by the protection
and advocacy agency of his or her right to authorize or deny access,
the protection and advocacy agency may not have access to that person'
s records.
(2) Any person, including any individual who cannot be located, to
whom all of the following conditions apply:
(A) The individual, due to his or her mental or physical
condition, is unable to authorize the protection and advocacy agency
to have access to his or her records.
(B) The individual does not have a legal guardian, conservator, or
other legal representative, or the individual's representative is a
public entity, including the state or one of its political
subdivisions.
(C) The protection and advocacy agency has received a complaint
that the individual has been subject to abuse or neglect, or has
determined that probable cause exists to believe that the individual
has been subject to abuse or neglect.
(3) Any person who is deceased, and for whom the protection and
advocacy agency has received a complaint that the individual had been
subjected to abuse or neglect, or for whom the agency has determined
that probable cause exists to believe that the individual had been
subjected to abuse or neglect.
(4) Any person who has a legal guardian, conservator, or other
legal representative with respect to whom a complaint has been
received by the protection and advocacy agency, or with respect to
whom the protection and advocacy agency has determined that probable
cause exists to believe that the person has been subjected to abuse
or neglect, whenever all of the following conditions exist:
(A) The representative has been contacted by the protection and
advocacy agency upon receipt of the representative's name and
address.
(B) The protection and advocacy agency has offered assistance to
the representatives to resolve the situation.
(C) The representative has failed or refused to act on behalf of
the person.
(b) Individual records that shall be available to the protection
and advocacy agency under this section shall include, but not be
limited to, all of the following information and records related to
the investigation, whether written or in another medium, draft or
final, including, but not limited to, handwritten notes, electronic
files, photographs, videotapes, or audiotapes:
(1) Information and records prepared or received in the course of
providing intake, assessment, evaluation, education, training, or
other supportive services, including, but not limited to, medical
records, financial records, monitoring reports, or other reports,
prepared or received by a member of the staff of a facility, program,
or service that is providing care, treatment, or services.
(2) Reports prepared by an agency charged with investigating
reports of incidents of abuse, neglect, injury, or death occurring at
the program, facility, or service while the individual with a
disability is under the care of a member of the staff of a program,
facility, or service, or by or for a program, facility, or service,
that describe any or all of the following:
(A) Abuse, neglect, injury, or death.
(B) The steps taken to investigate the incidents.
(C) Reports and records, including, but not limited to, personnel
records prepared or maintained by the facility, program, or service
in connection with reports of incidents, subject to the following:
(i) If a state statute specifies procedures with respect to
personnel records, the protection and advocacy agency shall follow
those procedures.
(ii) Personnel records shall be protected from disclosure in
compliance with the fundamental right of privacy established pursuant
to Section 1 of Article I of the California Constitution. The
custodian of personnel records shall have a right and a duty to
resist attempts to allow the unauthorized disclosure of personnel
records, and may not waive the privacy rights that are guaranteed
pursuant to Section 1 of Article I of the California Constitution.
(D) Supporting information that was relied upon in creating a
report, including, but not limited to, all information and records
that document interviews with persons who were interviewed, physical
and documentary evidence that was reviewed, or related investigative
findings.
(3) Discharge planning records.
(c) Information in the possession of a program, facility, or
service that must be available to the agency investigating instances
of abuse or neglect pursuant to paragraph (1) of subdivision (a) of
Section 4902, whether written or in another medium, draft or final,
including, but not limited to, handwritten notes, electronic files,
photographs, videotapes, audiotapes, or records, shall include, but
not be limited to, all of the following:
(1) Information in reports prepared by individuals and entities
performing certification or licensure reviews, or by professional
accreditation organizations, as well as related assessments prepared
for a program, facility, or service by its staff, contractors, or
related entities, subject to any other provision of state law
protecting records produced by medical care evaluation or peer review
committees.
(2) Information in professional, performance, building, or other
safety standards, or demographic and statistical information,
relating to the facility.
(d) The authority of the protection and advocacy agency to have
access to records does not supersede any prohibition on discovery
specified in Sections 1157 and 1157.6 of the Evidence Code, nor does
it supersede any prohibition on disclosure subject to the
physician-patient privilege or the psychotherapist-patient privilege.
(e) (1) The protection and advocacy agency shall have access to
records of individuals described in paragraph (1) of subdivision (a)
of Section 4902 and in subdivision (a), and other records that are
relevant to conducting an investigation, under the circumstances
described in those subdivisions, not later than three business days
after the agency makes a written request for the records involved.
(2) The protection and advocacy agency shall have immediate access
to the records, not later than 24 hours after the agency makes a
request, without consent from another party, in a situation in which
treatment, services, supports, or other assistance is provided to an
individual with a disability, if the agency determines there is
probable cause to believe that the health or safety of the individual
is in serious and immediate jeopardy, or in a case of death of an
individual with a disability.
(f) Confidential information kept or obtained by the protection
and advocacy agency shall remain confidential and may not be subject
to disclosure. This subdivision shall not, however, prevent the
protection and advocacy agency from doing any of the following:
(1) Sharing the information with the individual client who is the
subject of the record or report or other document, or with his or her
legally authorized representative, subject to any limitation on
disclosure to recipients of mental health services as provided in
subsection (b) of Section 10806 of Title 42 of the United States
Code.
(2) Issuing a public report of the results of an investigation
that maintains the confidentiality of individual service recipients.
(3) Reporting the results of an investigation to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility, its staff, or employees
warranting possible sanctions or corrective action. This information
may be reported to agencies that are responsible for facility
licensing or accreditation, employee discipline, employee licensing
or certification suspension or revocation, or criminal prosecution.
(4) Pursuing alternative remedies, including the initiation of
legal action.
(5) Reporting suspected elder or dependent adult abuse pursuant to
the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600) of Part 3 of Division 9).
(g) The protection and advocacy agency shall inform and train
employees as appropriate regarding the confidentiality of client
records.
4904. (a) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for an injury resulting from
an employee's or agent's act or omission where the act or omission
was the result of the exercise, in good faith, of the discretion
vested in him or her.
(b) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for damages awarded under
Section 3294 of the Civil Code or other damages imposed primarily for
the sake of example and by way of punishing the defendant.
(c) The protection and advocacy agency, its employees, and
designated agents, when participating in filing a complaint or
providing information pursuant to this division or participating in a
judicial proceeding resulting therefrom shall be presumed to be
acting in good faith and unless the presumption is rebutted, shall be
immune from any liability, civil or criminal, and shall be immune
from any penalty, sanction, or restriction that might be incurred or
imposed.
4905. (a) No employee or agent of a facility, program, or service
shall subject a person with a disability to reprisal or harassment or
directly or indirectly take or threaten to take any action that
would prevent the person, his or her legally authorized
representative, or family member from reporting or otherwise bringing
to the attention of the protection and advocacy agency any facts or
information relative to suspected abuse, neglect, or other violations
of the person's rights.
(b) Any attempt to involuntarily remove from a facility, program,
or service, or to deny privileges or rights without good cause to a
person with a disability by whom or for whom a complaint has been
made to the protection and advocacy agency, within 60 days after the
date the complaint is made or within 60 days after the conclusion of
any proceeding resulting from the complaint, shall raise a
presumption that the action was taken in retaliation for the filing
of the complaint.
4906. (a) The protection and advocacy agency may not obtain access
through the use of physical force to facilities, programs, service
recipients, residents, or records required by the division if this
access is delayed or denied.
(b) Notwithstanding subdivision (a), nothing in this division is
intended to preclude the protection and advocacy agency from pursuing
appropriate legal remedies to enforce its access authority under
this division or applicable federal law.
CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15653-15655.5
CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15653-15655.5
15653. (a) Minimum guidelines for use by county adult protective
services agencies in determining when an investigation of abuse is
warranted shall be maintained by the State Department of Social
Services in cooperation with representatives of county government,
and in consultation with the Department of Aging, the Department of
Justice, and other concerned state departments for use by county
adult protective services agencies.
(b) Uniform guidelines for local law enforcement assistance with
investigations of allegations of abuse to elders and dependent adults
as developed by the Department of Justice in consultation with the
department, the Department of Aging, and other concerned state and
local agencies pursuant to Section 15640, as amended by Chapter 769
of the Statutes of 1986, shall remain in effect until modified.
Consistent with these guidelines, county adult protective services
agencies may seek local law enforcement assistance with
investigations of allegations of abuse to elder and dependent adults.
15653.5. Training for determining when to refer for possible
criminal prosecution a report of a known or suspected instance of
abuse that occurred in a long-term care facility shall be included in
the training provided by the Bureau of Medi-Cal Fraud and Elder
Abuse pursuant to subdivision (h) of Section 12528 of the Government
Code.
15654. As described in subdivision (h) of Section 12528 of the
Government Code, the bureau shall offer training programs to local
law enforcement and prosecutorial personnel in investigating and
prosecuting crimes against elders and dependent adults, and to the
State Department of Health Services, the State Department of Social
Services, the county adult protective services agencies and to the
long-term care ombudsman program in evaluating and documenting
criminal abuse against elders and dependent adults.
15655. (a) (1) Each long-term health care facility, as defined in
Section 1418 of the Health and Safety Code, community care facility,
as defined in Section 1502 of the Health and Safety Code, or
residential care facility for the elderly, as defined in Section
1569.2 of the Health and Safety Code, that provides care to adults
shall provide training in recognizing and reporting elder and
dependent adult abuse, as prescribed by the Department of Justice.
The Department of Justice shall, in cooperation with the State
Department of Health Services and the State Department of Social
Services, develop a minimal core training program for use by these
facilities. As part of that training, long-term care facilities,
including nursing homes and out-of-home care facilities, shall
provide to all staff being trained a written copy of the reporting
requirements and a written notification of the staff's
confidentiality rights as specified in Section 15633.
(2) Each long-term health care facility as defined in Section 1418
of the Health and Safety Code and each community care facility as
defined in Section 1502 of the Health and Safety Code shall comply
with paragraph (1) by January 1, 2001, or, if the facility began
operation after July 31, 2000, within six months of the date of the
beginning of the operation of the facility. Employees hired after
June 1, 2001, shall be trained within 60 days of their first day of
employment.
(3) Each residential care facility as defined in Section 1569.2 of
the Health and Safety Code shall comply with paragraph (1) by July
1, 2002, or, if the facility began operation after July 1, 2002,
within six months of the date of the beginning of the operation of
the facility. Employees hired on or after July 1, 2002, shall be
trained within 60 days of their first day of employment.
(b) Each long-term health care facility, as defined in Section
1418 of the Health and Safety Code, shall be subject to review by the
State Department of Health Services Licensing and Certification Unit
for compliance with the duties imposed in subdivision (a).
(c) Each community care facility, as defined in Section 1502 of
the Health and Safety Code, and residential care facility for the
elderly, as defined in Section 1569.2 of the Health and Safety Code,
shall be subject to review by the State Department of Social Services
Community Care Licensing Unit for compliance with the duties imposed
in subdivision (a).
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or dependent adult pursuant to Section 15630.1, with
instructional materials regarding abuse and neglect of an elder or
dependent adult and their obligation to report under this chapter. At
a minimum, the instructional materials shall include the following:
(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or dependent adult.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17 with instructional materials regarding elder and dependent
adult abuse and neglect and their obligation to report under this
chapter. At a minimum, the instructional materials shall include the
following:
(a) An explanation of elder and dependent adult abuse and neglect,
as defined in this chapter.
(b) Information on how to recognize potential elder and dependent
adult abuse and neglect.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall become operative on January 1, 2013.
WELFARE AND INSTITUTIONS CODE
SECTION 15653-15655.5
15653. (a) Minimum guidelines for use by county adult protective
services agencies in determining when an investigation of abuse is
warranted shall be maintained by the State Department of Social
Services in cooperation with representatives of county government,
and in consultation with the Department of Aging, the Department of
Justice, and other concerned state departments for use by county
adult protective services agencies.
(b) Uniform guidelines for local law enforcement assistance with
investigations of allegations of abuse to elders and dependent adults
as developed by the Department of Justice in consultation with the
department, the Department of Aging, and other concerned state and
local agencies pursuant to Section 15640, as amended by Chapter 769
of the Statutes of 1986, shall remain in effect until modified.
Consistent with these guidelines, county adult protective services
agencies may seek local law enforcement assistance with
investigations of allegations of abuse to elder and dependent adults.
15653.5. Training for determining when to refer for possible
criminal prosecution a report of a known or suspected instance of
abuse that occurred in a long-term care facility shall be included in
the training provided by the Bureau of Medi-Cal Fraud and Elder
Abuse pursuant to subdivision (h) of Section 12528 of the Government
Code.
15654. As described in subdivision (h) of Section 12528 of the
Government Code, the bureau shall offer training programs to local
law enforcement and prosecutorial personnel in investigating and
prosecuting crimes against elders and dependent adults, and to the
State Department of Health Services, the State Department of Social
Services, the county adult protective services agencies and to the
long-term care ombudsman program in evaluating and documenting
criminal abuse against elders and dependent adults.
15655. (a) (1) Each long-term health care facility, as defined in
Section 1418 of the Health and Safety Code, community care facility,
as defined in Section 1502 of the Health and Safety Code, or
residential care facility for the elderly, as defined in Section
1569.2 of the Health and Safety Code, that provides care to adults
shall provide training in recognizing and reporting elder and
dependent adult abuse, as prescribed by the Department of Justice.
The Department of Justice shall, in cooperation with the State
Department of Health Services and the State Department of Social
Services, develop a minimal core training program for use by these
facilities. As part of that training, long-term care facilities,
including nursing homes and out-of-home care facilities, shall
provide to all staff being trained a written copy of the reporting
requirements and a written notification of the staff's
confidentiality rights as specified in Section 15633.
(2) Each long-term health care facility as defined in Section 1418
of the Health and Safety Code and each community care facility as
defined in Section 1502 of the Health and Safety Code shall comply
with paragraph (1) by January 1, 2001, or, if the facility began
operation after July 31, 2000, within six months of the date of the
beginning of the operation of the facility. Employees hired after
June 1, 2001, shall be trained within 60 days of their first day of
employment.
(3) Each residential care facility as defined in Section 1569.2 of
the Health and Safety Code shall comply with paragraph (1) by July
1, 2002, or, if the facility began operation after July 1, 2002,
within six months of the date of the beginning of the operation of
the facility. Employees hired on or after July 1, 2002, shall be
trained within 60 days of their first day of employment.
(b) Each long-term health care facility, as defined in Section
1418 of the Health and Safety Code, shall be subject to review by the
State Department of Health Services Licensing and Certification Unit
for compliance with the duties imposed in subdivision (a).
(c) Each community care facility, as defined in Section 1502 of
the Health and Safety Code, and residential care facility for the
elderly, as defined in Section 1569.2 of the Health and Safety Code,
shall be subject to review by the State Department of Social Services
Community Care Licensing Unit for compliance with the duties imposed
in subdivision (a).
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or dependent adult pursuant to Section 15630.1, with
instructional materials regarding abuse and neglect of an elder or
dependent adult and their obligation to report under this chapter. At
a minimum, the instructional materials shall include the following:
(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or dependent adult.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17 with instructional materials regarding elder and dependent
adult abuse and neglect and their obligation to report under this
chapter. At a minimum, the instructional materials shall include the
following:
(a) An explanation of elder and dependent adult abuse and neglect,
as defined in this chapter.
(b) Information on how to recognize potential elder and dependent
adult abuse and neglect.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall become operative on January 1, 2013.
CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15610-15610.65
CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15610-15610.65
15610. The definitions contained in this article shall govern the
construction of this chapter, unless the context requires otherwise.
15610.05. "Abandonment" means the desertion or willful forsaking of
an elder or a dependent adult by anyone having care or custody of
that person under circumstances in which a reasonable person would
continue to provide care and custody.
15610.06. "Abduction" means the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, of any elder or dependent adult who does not
have the capacity to consent to the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, as well as the removal from this state or
the restraint from returning to this state, of any conservatee
without the consent of the conservator or the court.
15610.07. "Abuse of an elder or a dependent adult" means either of
the following:
(a) Physical abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment with resulting physical harm
or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that
are necessary to avoid physical harm or mental suffering.
15610.10. "Adult protective services" means those preventive and
remedial activities performed on behalf of elders and dependent
adults who are unable to protect their own interests, harmed or
threatened with harm, caused physical or mental injury due to the
action or inaction of another person or their own action as a result
of ignorance, illiteracy, incompetence, mental limitation, substance
abuse, or poor health, lacking in adequate food, shelter, or
clothing, exploited of their income and resources, or deprived of
entitlement due them.
15610.13. "Adult protective services agency" means a county welfare
department, except persons who do not work directly with elders or
dependent adults as part of their official duties, including members
of support staff and maintenance staff.
15610.15. "Bureau" means the Bureau of Medi-Cal Fraud within the
office of the Attorney General.
15610.17. "Care custodian" means an administrator or an employee of
any of the following public or private facilities or agencies, or
persons providing care or services for elders or dependent adults,
including members of the support staff and maintenance staff:
(a) Twenty-four-hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(b) Clinics.
(c) Home health agencies.
(d) Agencies providing publicly funded in-home supportive
services, nutrition services, or other home and community-based
support services.
(e) Adult day health care centers and adult day care.
(f) Secondary schools that serve 18- to 22-year-old dependent
adults and postsecondary educational institutions that serve
dependent adults or elders.
(g) Independent living centers.
(h) Camps.
(i) Alzheimer's Disease day care resource centers.
(j) Community care facilities, as defined in Section 1502 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(k) Respite care facilities.
(l) Foster homes.
(m) Vocational rehabilitation facilities and work activity
centers.
(n) Designated area agencies on aging.
(o) Regional centers for persons with developmental disabilities.
(p) State Department of Social Services and State Department of
Health Services licensing divisions.
(q) County welfare departments.
(r) Offices of patients' rights advocates and clients' rights
advocates, including attorneys.
(s) The office of the long-term care ombudsman.
(t) Offices of public conservators, public guardians, and court
investigators.
(u) Any protection or advocacy agency or entity that is designated
by the Governor to fulfill the requirements and assurances of the
following:
(1) The federal Developmental Disabilities Assistance and Bill of
Rights Act of 2000, contained in Chapter 144 (commencing with
Section 15001) of Title 42 of the United States Code, for protection
and advocacy of the rights of persons with developmental
disabilities.
(2) The Protection and Advocacy for the Mentally Ill Individuals
Act of 1986, as amended, contained in Chapter 114 (commencing with
Section 10801) of Title 42 of the United States Code, for the
protection and advocacy of the rights of persons with mental illness.
(v) Humane societies and animal control agencies.
(w) Fire departments.
(x) Offices of environmental health and building code enforcement.
(y) Any other protective, public, sectarian, mental health, or
private assistance or advocacy agency or person providing health
services or social services to elders or dependent adults.
15610.19. "Clergy member" means a priest, minister, rabbi,
religious practitioner, or similar functionary of a church,
synagogue, temple, mosque, or recognized religious denomination or
organization. "Clergy member" does not include unpaid volunteers
whose principal occupation or vocation does not involve active or
ordained ministry in a church, synagogue, temple, mosque, or
recognized religious denomination or organization, and who
periodically visit elder or dependent adults on behalf of that
church, synagogue, temple, mosque, or recognized religious
denomination or organization.
15610.20. "Clients' rights advocate" means the individual or
individuals assigned by a regional center or state hospital
developmental center to be responsible for clients' rights assurance
for persons with developmental disabilities.
15610.23. (a) "Dependent adult" means any person between the ages
of 18 and 64 years who resides in this state and who has physical or
mental limitations that restrict his or her ability to carry out
normal activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities,
or whose physical or mental abilities have diminished because of
age.
(b) "Dependent adult" includes any person between the ages of 18
and 64 years who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
15610.25. "Developmentally disabled person" means a person with a
developmental disability specified by or as described in subdivision
(a) of Section 4512.
15610.27. "Elder" means any person residing in this state, 65 years
of age or older.
15610.30. (a) "Financial abuse" of an elder or dependent adult
occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use
or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or
retaining real or personal property of an elder or dependent adult
for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists
in taking, secreting, appropriating, obtaining, or retaining, real
or personal property of an elder or dependent adult by undue
influence, as defined in Section 1575 of the Civil Code.
(b) A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a wrongful use if,
among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be
harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes,
secretes, appropriates, obtains, or retains real or personal property
when an elder or dependent adult is deprived of any property right,
including by means of an agreement, donative transfer, or
testamentary bequest, regardless of whether the property is held
directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, "representative" means a person
or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.
15610.35. "Goods and services necessary to avoid physical harm or
mental suffering" include, but are not limited to, all of the
following:
(a) The provision of medical care for physical and mental health
needs.
(b) Assistance in personal hygiene.
(c) Adequate clothing.
(d) Adequately heated and ventilated shelter.
(e) Protection from health and safety hazards.
(f) Protection from malnutrition, under those circumstances where
the results include, but are not limited to, malnutrition and
deprivation of necessities or physical punishment.
(g) Transportation and assistance necessary to secure any of the
needs set forth in subdivisions (a) to (f), inclusive.
15610.37. "Health practitioner" means a physician and surgeon,
psychiatrist, psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, licensed clinical
social worker or associate clinical social worker, marriage, family,
and child counselor, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code, any emergency medical technician I or II,
paramedic, or person certified pursuant to Division 2.5 (commencing
with Section 1797) of the Health and Safety Code, a psychological
assistant registered pursuant to Section 2913 of the Business and
Professions Code, a marriage, family, and child counselor trainee, as
defined in subdivision (c) of Section 4980.03 of the Business and
Professions Code, or an unlicensed marriage, family, and child
counselor intern registered under Section 4980.44 of the Business and
Professions Code, state or county public health or social service
employee who treats an elder or a dependent adult for any condition,
or a coroner.
15610.39. "Imminent danger" means a substantial probability that an
elder or dependent adult is in imminent or immediate risk of death
or serious physical harm, through either his or her own action or
inaction, or as a result of the action or inaction of another person.
15610.40. "Investigation" means that activity undertaken to
determine the validity of a report of elder or dependent adult abuse.
15610.43. (a) "Isolation" means any of the following:
(1) Acts intentionally committed for the purpose of preventing,
and that do serve to prevent, an elder or dependent adult from
receiving his or her mail or telephone calls.
(2) Telling a caller or prospective visitor that an elder or
dependent adult is not present, or does not wish to talk with the
caller, or does not wish to meet with the visitor where the statement
is false, is contrary to the express wishes of the elder or the
dependent adult, whether he or she is competent or not, and is made
for the purpose of preventing the elder or dependent adult from
having contact with family, friends, or concerned persons.
(3) False imprisonment, as defined in Section 236 of the Penal
Code.
(4) Physical restraint of an elder or dependent adult, for the
purpose of preventing the elder or dependent adult from meeting with
visitors.
(b) The acts set forth in subdivision (a) shall be subject to a
rebuttable presumption that they do not constitute isolation if they
are performed pursuant to the instructions of a physician and surgeon
licensed to practice medicine in the state, who is caring for the
elder or dependent adult at the time the instructions are given, and
who gives the instructions as part of his or her medical care.
(c) The acts set forth in subdivision (a) shall not constitute
isolation if they are performed in response to a reasonably perceived
threat of danger to property or physical safety.
15610.45. "Local law enforcement agency" means a city police or
county sheriff's department, or a county probation department, except
persons who do not work directly with elders or dependent adults as
part of their official duties, including members of support staff and
maintenance staff.
15610.47. "Long-term care facility" means any of the following:
(a) Any long-term health care facility, as defined in subdivision
(a) of Section 1418 of the Health and Safety Code.
(b) Any community care facility, as defined in paragraphs (1) and
(2) of subdivision (a) of Section 1502 of the Health and Safety Code,
whether licensed or unlicensed.
(c) Any swing bed in an acute care facility, or any extended care
facility.
(d) Any adult day health care facility as defined in subdivision
(b) of Section 1570.7 of the Health and Safety Code.
(e) Any residential care facility for the elderly as defined in
Section 1569.2 of the Health and Safety Code.
15610.50. "Long-term care ombudsman" means the State Long-Term Care
Ombudsman, local ombudsman coordinators, and other persons currently
certified as ombudsmen by the Department of Aging as described in
Chapter 11 (commencing with Section 9700) of Division 8.5.
15610.53. "Mental suffering" means fear, agitation, confusion,
severe depression, or other forms of serious emotional distress that
is brought about by forms of intimidating behavior, threats,
harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten,
or cause severe depression or serious emotional distress of the elder
or dependent adult.
15610.55. (a) "Multidisciplinary personnel team" means any team of
two or more persons who are trained in the prevention,
identification, and treatment of abuse of elderly or dependent adults
and who are qualified to provide a broad range of services related
to abuse of elderly or dependent adults.
(b) A multidisciplinary personnel team may include, but is not
limited to, all of the following:
(1) Psychiatrists, psychologists, or other trained counseling
personnel.
(2) Police officers or other law enforcement agents.
(3) Medical personnel with sufficient training to provide health
services.
(4) Social workers with experience or training in prevention of
abuse of elderly or dependent adults.
(5) Public guardians.
(6) The local long-term care ombudsman.
15610.57. (a) "Neglect" means either of the following:
(1) The negligent failure of any person having the care or custody
of an elder or a dependent adult to exercise that degree of care
that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to
exercise that degree of self care that a reasonable person in a like
position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health
needs. No person shall be deemed neglected or abused for the sole
reason that he or she voluntarily relies on treatment by spiritual
means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs
specified in paragraphs (1) to (4), inclusive, for himself or herself
as a result of poor cognitive functioning, mental limitation,
substance abuse, or chronic poor health.
15610.60. "Patients' rights advocate" means a person who has no
direct or indirect clinical or administrative responsibility for the
patient, and who is responsible for ensuring that laws, regulations,
and policies on the rights of the patient are observed.
15610.63. "Physical abuse" means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great
bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual
deprivation of food or water.
(e) Sexual assault, that means any of the following:
(1) Sexual battery, as defined in Section 243.4 of the Penal Code.
(2) Rape, as defined in Section 261 of the Penal Code.
(3) Rape in concert, as described in Section 264.1 of the Penal
Code.
(4) Spousal rape, as defined in Section 262 of the Penal Code.
(5) Incest, as defined in Section 285 of the Penal Code.
(6) Sodomy, as defined in Section 286 of the Penal Code.
(7) Oral copulation, as defined in Section 288a of the Penal Code.
(8) Sexual penetration, as defined in Section 289 of the Penal
Code.
(9) Lewd or lascivious acts as defined in paragraph (2) of
subdivision (b) of Section 288 of the Penal Code.
(f) Use of a physical or chemical restraint or psychotropic
medication under any of the following conditions:
(1) For punishment.
(2) For a period beyond that for which the medication was ordered
pursuant to the instructions of a physician and surgeon licensed in
the State of California, who is providing medical care to the elder
or dependent adult at the time the instructions are given.
(3) For any purpose not authorized by the physician and surgeon.
15610.65. "Reasonable suspicion" means an objectively reasonable
suspicion that a person would entertain, based upon facts that could
cause a reasonable person in a like position, drawing when
appropriate upon his or her training and experience, to suspect
abuse.
WELFARE AND INSTITUTIONS CODE
SECTION 15610-15610.65
15610. The definitions contained in this article shall govern the
construction of this chapter, unless the context requires otherwise.
15610.05. "Abandonment" means the desertion or willful forsaking of
an elder or a dependent adult by anyone having care or custody of
that person under circumstances in which a reasonable person would
continue to provide care and custody.
15610.06. "Abduction" means the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, of any elder or dependent adult who does not
have the capacity to consent to the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, as well as the removal from this state or
the restraint from returning to this state, of any conservatee
without the consent of the conservator or the court.
15610.07. "Abuse of an elder or a dependent adult" means either of
the following:
(a) Physical abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment with resulting physical harm
or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that
are necessary to avoid physical harm or mental suffering.
15610.10. "Adult protective services" means those preventive and
remedial activities performed on behalf of elders and dependent
adults who are unable to protect their own interests, harmed or
threatened with harm, caused physical or mental injury due to the
action or inaction of another person or their own action as a result
of ignorance, illiteracy, incompetence, mental limitation, substance
abuse, or poor health, lacking in adequate food, shelter, or
clothing, exploited of their income and resources, or deprived of
entitlement due them.
15610.13. "Adult protective services agency" means a county welfare
department, except persons who do not work directly with elders or
dependent adults as part of their official duties, including members
of support staff and maintenance staff.
15610.15. "Bureau" means the Bureau of Medi-Cal Fraud within the
office of the Attorney General.
15610.17. "Care custodian" means an administrator or an employee of
any of the following public or private facilities or agencies, or
persons providing care or services for elders or dependent adults,
including members of the support staff and maintenance staff:
(a) Twenty-four-hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(b) Clinics.
(c) Home health agencies.
(d) Agencies providing publicly funded in-home supportive
services, nutrition services, or other home and community-based
support services.
(e) Adult day health care centers and adult day care.
(f) Secondary schools that serve 18- to 22-year-old dependent
adults and postsecondary educational institutions that serve
dependent adults or elders.
(g) Independent living centers.
(h) Camps.
(i) Alzheimer's Disease day care resource centers.
(j) Community care facilities, as defined in Section 1502 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(k) Respite care facilities.
(l) Foster homes.
(m) Vocational rehabilitation facilities and work activity
centers.
(n) Designated area agencies on aging.
(o) Regional centers for persons with developmental disabilities.
(p) State Department of Social Services and State Department of
Health Services licensing divisions.
(q) County welfare departments.
(r) Offices of patients' rights advocates and clients' rights
advocates, including attorneys.
(s) The office of the long-term care ombudsman.
(t) Offices of public conservators, public guardians, and court
investigators.
(u) Any protection or advocacy agency or entity that is designated
by the Governor to fulfill the requirements and assurances of the
following:
(1) The federal Developmental Disabilities Assistance and Bill of
Rights Act of 2000, contained in Chapter 144 (commencing with
Section 15001) of Title 42 of the United States Code, for protection
and advocacy of the rights of persons with developmental
disabilities.
(2) The Protection and Advocacy for the Mentally Ill Individuals
Act of 1986, as amended, contained in Chapter 114 (commencing with
Section 10801) of Title 42 of the United States Code, for the
protection and advocacy of the rights of persons with mental illness.
(v) Humane societies and animal control agencies.
(w) Fire departments.
(x) Offices of environmental health and building code enforcement.
(y) Any other protective, public, sectarian, mental health, or
private assistance or advocacy agency or person providing health
services or social services to elders or dependent adults.
15610.19. "Clergy member" means a priest, minister, rabbi,
religious practitioner, or similar functionary of a church,
synagogue, temple, mosque, or recognized religious denomination or
organization. "Clergy member" does not include unpaid volunteers
whose principal occupation or vocation does not involve active or
ordained ministry in a church, synagogue, temple, mosque, or
recognized religious denomination or organization, and who
periodically visit elder or dependent adults on behalf of that
church, synagogue, temple, mosque, or recognized religious
denomination or organization.
15610.20. "Clients' rights advocate" means the individual or
individuals assigned by a regional center or state hospital
developmental center to be responsible for clients' rights assurance
for persons with developmental disabilities.
15610.23. (a) "Dependent adult" means any person between the ages
of 18 and 64 years who resides in this state and who has physical or
mental limitations that restrict his or her ability to carry out
normal activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities,
or whose physical or mental abilities have diminished because of
age.
(b) "Dependent adult" includes any person between the ages of 18
and 64 years who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
15610.25. "Developmentally disabled person" means a person with a
developmental disability specified by or as described in subdivision
(a) of Section 4512.
15610.27. "Elder" means any person residing in this state, 65 years
of age or older.
15610.30. (a) "Financial abuse" of an elder or dependent adult
occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use
or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or
retaining real or personal property of an elder or dependent adult
for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists
in taking, secreting, appropriating, obtaining, or retaining, real
or personal property of an elder or dependent adult by undue
influence, as defined in Section 1575 of the Civil Code.
(b) A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a wrongful use if,
among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be
harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes,
secretes, appropriates, obtains, or retains real or personal property
when an elder or dependent adult is deprived of any property right,
including by means of an agreement, donative transfer, or
testamentary bequest, regardless of whether the property is held
directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, "representative" means a person
or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.
15610.35. "Goods and services necessary to avoid physical harm or
mental suffering" include, but are not limited to, all of the
following:
(a) The provision of medical care for physical and mental health
needs.
(b) Assistance in personal hygiene.
(c) Adequate clothing.
(d) Adequately heated and ventilated shelter.
(e) Protection from health and safety hazards.
(f) Protection from malnutrition, under those circumstances where
the results include, but are not limited to, malnutrition and
deprivation of necessities or physical punishment.
(g) Transportation and assistance necessary to secure any of the
needs set forth in subdivisions (a) to (f), inclusive.
15610.37. "Health practitioner" means a physician and surgeon,
psychiatrist, psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, licensed clinical
social worker or associate clinical social worker, marriage, family,
and child counselor, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code, any emergency medical technician I or II,
paramedic, or person certified pursuant to Division 2.5 (commencing
with Section 1797) of the Health and Safety Code, a psychological
assistant registered pursuant to Section 2913 of the Business and
Professions Code, a marriage, family, and child counselor trainee, as
defined in subdivision (c) of Section 4980.03 of the Business and
Professions Code, or an unlicensed marriage, family, and child
counselor intern registered under Section 4980.44 of the Business and
Professions Code, state or county public health or social service
employee who treats an elder or a dependent adult for any condition,
or a coroner.
15610.39. "Imminent danger" means a substantial probability that an
elder or dependent adult is in imminent or immediate risk of death
or serious physical harm, through either his or her own action or
inaction, or as a result of the action or inaction of another person.
15610.40. "Investigation" means that activity undertaken to
determine the validity of a report of elder or dependent adult abuse.
15610.43. (a) "Isolation" means any of the following:
(1) Acts intentionally committed for the purpose of preventing,
and that do serve to prevent, an elder or dependent adult from
receiving his or her mail or telephone calls.
(2) Telling a caller or prospective visitor that an elder or
dependent adult is not present, or does not wish to talk with the
caller, or does not wish to meet with the visitor where the statement
is false, is contrary to the express wishes of the elder or the
dependent adult, whether he or she is competent or not, and is made
for the purpose of preventing the elder or dependent adult from
having contact with family, friends, or concerned persons.
(3) False imprisonment, as defined in Section 236 of the Penal
Code.
(4) Physical restraint of an elder or dependent adult, for the
purpose of preventing the elder or dependent adult from meeting with
visitors.
(b) The acts set forth in subdivision (a) shall be subject to a
rebuttable presumption that they do not constitute isolation if they
are performed pursuant to the instructions of a physician and surgeon
licensed to practice medicine in the state, who is caring for the
elder or dependent adult at the time the instructions are given, and
who gives the instructions as part of his or her medical care.
(c) The acts set forth in subdivision (a) shall not constitute
isolation if they are performed in response to a reasonably perceived
threat of danger to property or physical safety.
15610.45. "Local law enforcement agency" means a city police or
county sheriff's department, or a county probation department, except
persons who do not work directly with elders or dependent adults as
part of their official duties, including members of support staff and
maintenance staff.
15610.47. "Long-term care facility" means any of the following:
(a) Any long-term health care facility, as defined in subdivision
(a) of Section 1418 of the Health and Safety Code.
(b) Any community care facility, as defined in paragraphs (1) and
(2) of subdivision (a) of Section 1502 of the Health and Safety Code,
whether licensed or unlicensed.
(c) Any swing bed in an acute care facility, or any extended care
facility.
(d) Any adult day health care facility as defined in subdivision
(b) of Section 1570.7 of the Health and Safety Code.
(e) Any residential care facility for the elderly as defined in
Section 1569.2 of the Health and Safety Code.
15610.50. "Long-term care ombudsman" means the State Long-Term Care
Ombudsman, local ombudsman coordinators, and other persons currently
certified as ombudsmen by the Department of Aging as described in
Chapter 11 (commencing with Section 9700) of Division 8.5.
15610.53. "Mental suffering" means fear, agitation, confusion,
severe depression, or other forms of serious emotional distress that
is brought about by forms of intimidating behavior, threats,
harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten,
or cause severe depression or serious emotional distress of the elder
or dependent adult.
15610.55. (a) "Multidisciplinary personnel team" means any team of
two or more persons who are trained in the prevention,
identification, and treatment of abuse of elderly or dependent adults
and who are qualified to provide a broad range of services related
to abuse of elderly or dependent adults.
(b) A multidisciplinary personnel team may include, but is not
limited to, all of the following:
(1) Psychiatrists, psychologists, or other trained counseling
personnel.
(2) Police officers or other law enforcement agents.
(3) Medical personnel with sufficient training to provide health
services.
(4) Social workers with experience or training in prevention of
abuse of elderly or dependent adults.
(5) Public guardians.
(6) The local long-term care ombudsman.
15610.57. (a) "Neglect" means either of the following:
(1) The negligent failure of any person having the care or custody
of an elder or a dependent adult to exercise that degree of care
that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to
exercise that degree of self care that a reasonable person in a like
position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health
needs. No person shall be deemed neglected or abused for the sole
reason that he or she voluntarily relies on treatment by spiritual
means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs
specified in paragraphs (1) to (4), inclusive, for himself or herself
as a result of poor cognitive functioning, mental limitation,
substance abuse, or chronic poor health.
15610.60. "Patients' rights advocate" means a person who has no
direct or indirect clinical or administrative responsibility for the
patient, and who is responsible for ensuring that laws, regulations,
and policies on the rights of the patient are observed.
15610.63. "Physical abuse" means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great
bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual
deprivation of food or water.
(e) Sexual assault, that means any of the following:
(1) Sexual battery, as defined in Section 243.4 of the Penal Code.
(2) Rape, as defined in Section 261 of the Penal Code.
(3) Rape in concert, as described in Section 264.1 of the Penal
Code.
(4) Spousal rape, as defined in Section 262 of the Penal Code.
(5) Incest, as defined in Section 285 of the Penal Code.
(6) Sodomy, as defined in Section 286 of the Penal Code.
(7) Oral copulation, as defined in Section 288a of the Penal Code.
(8) Sexual penetration, as defined in Section 289 of the Penal
Code.
(9) Lewd or lascivious acts as defined in paragraph (2) of
subdivision (b) of Section 288 of the Penal Code.
(f) Use of a physical or chemical restraint or psychotropic
medication under any of the following conditions:
(1) For punishment.
(2) For a period beyond that for which the medication was ordered
pursuant to the instructions of a physician and surgeon licensed in
the State of California, who is providing medical care to the elder
or dependent adult at the time the instructions are given.
(3) For any purpose not authorized by the physician and surgeon.
15610.65. "Reasonable suspicion" means an objectively reasonable
suspicion that a person would entertain, based upon facts that could
cause a reasonable person in a like position, drawing when
appropriate upon his or her training and experience, to suspect
abuse.
CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15657-15657.7
CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15657-15657.7
15657. Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse as defined in Section
15610.63, or neglect as defined in Section 15610.57, and that the
defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse, the following shall apply, in
addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's
fees and costs. The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
15657.01. Notwithstanding Section 483.010 of the Code of Civil
Procedure, an attachment may be issued in any action for damages
pursuant to Section 15657.5 for financial abuse of an elder or
dependent adult, as defined in Section 15610.30. The other provisions
of the Code of Civil Procedure not inconsistent with this article
shall govern the issuance of an attachment pursuant to this section.
In an application for a writ of attachment, the claimant shall refer
to this section. An attachment may be issued pursuant to this section
whether or not other forms of relief are demanded.
15657.03. (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall remain in effect only until January 1, 2010,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2010, deletes or extends that date.
15657.03. (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or conservator of the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or conservator of the petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner, other named family or household
member of the petitioner, or conservator of the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If a person named in an order issued under this section,
after a hearing, has not been served personally with the order but
has received actual notice of the existence and substance of the
order through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is required for
enforcement of the order.
(2) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(3) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall become operative on January 1, 2010.
15657.04. (a) The court shall order that any party enjoined
pursuant to Section 15657.03 be prohibited from taking any action to
obtain the address or location of a protected party or a protected
party's family members, caretakers, or guardian, unless there is good
cause not to make that order.
(b) The Judicial Council shall promulgate forms necessary to
effectuate this section.
15657.05. Where it is proven by clear and convincing evidence that
an individual is liable for abduction, as defined in Section
15610.06, in addition to all other remedies otherwise provided by
law:
(a) (1) The court shall award to the plaintiff reasonable attorney'
s fees and costs. The term "costs" shall include, but is not limited
to, costs of representing the abductee and his or her family in this
state and any other state in any action related to the abduction and
returning of the abductee to this state, as well as travel expenses
for returning the abductee to this state and reasonable fees for the
services of a conservator, if any, devoted to the litigation of a
claim brought under this article.
(2) The award of attorney's fees shall be governed by the
principles set forth in Section 15657.1.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
15657.1. The award of attorney's fees pursuant to subdivision (a)
of Section 15657 shall be based on all factors relevant to the value
of the services rendered, including, but not limited to, the factors
set forth in Rule 4-200 of the Rules of Professional Conduct of the
State Bar of California, and all of the following:
(a) The value of the abuse-related litigation in terms of the
quality of life of the elder or dependent adult, and the results
obtained.
(b) Whether the defendant took reasonable and timely steps to
determine the likelihood and extent of liability.
(c) The reasonableness and timeliness of any written offer in
compromise made by a party to the action.
15657.2. Notwithstanding this article, any cause of action for
injury or damage against a health care provider, as defined in
Section 340.5 of the Code of Civil Procedure, based on the health
care provider's alleged professional negligence, shall be governed by
those laws which specifically apply to those professional negligence
causes of action.
15657.3. (a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent
jurisdiction over civil actions and proceedings involving a claim
for relief arising out of the abduction, as defined in Section
15610.06, or the abuse of an elderly or dependent adult, if a
conservator has been appointed for the plaintiff prior to the
initiation of the action for abuse.
(b) The department of the superior court having jurisdiction over
probate conservatorships shall not grant relief under this article if
the court determines that the matter should be determined in a civil
action, but shall instead transfer the matter to the general civil
calendar of the superior court. The court need not abate a proceeding
for relief pursuant to this article if the court determines that the
civil action was filed for the purpose of delay.
(c) The death of the elder or dependent adult does not cause the
court to lose jurisdiction of a claim for relief for abuse of that
elder or dependent adult.
(d) (1) Subject to paragraph (2) and subdivision (e), after the
death of the elder or dependent adult, the right to commence or
maintain an action shall pass to the personal representative of the
decedent. If there is no personal representative, the right to
commence or maintain an action shall pass to any of the following, if
the requirements of Section 377.32 of the Code of Civil Procedure
are met:
(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section
377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate
Code, as limited in this subparagraph. As used in this subparagraph,
"an interested person" does not include a creditor or a person who
has a claim against the estate and who is not an heir or beneficiary
of the decedent's estate.
(2) If the personal representative refuses to commence or maintain
an action or if the personal representative's family or an
affiliate, as those terms are defined in subdivision (c) of Section
1064 of the Probate Code, is alleged to have committed abuse of the
elder or dependent adult, the persons described in subparagraphs (A),
(B), and (C) of paragraph (1) shall have standing to commence or
maintain an action for elder abuse. This paragraph does not require
the court to resolve the merits of an elder abuse action for purposes
of finding that a plaintiff who meets the qualifications of
subparagraphs (A), (B), and (C) of paragraph (1) has standing to
commence or maintain such an action.
(e) If two or more persons who are either described in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (d) or
a personal representative claim to have standing to commence or
maintain an action for elder abuse, upon petition or motion, the
court in which the action or proceeding is pending, may make any
order concerning the parties that is appropriate to ensure the proper
administration of justice in the case pursuant to Section 377.33 of
the Code of Civil Procedure.
(f) This section does not affect the applicable statute of
limitations for commencing an action for relief for abuse of an
elderly or dependent adult.
15657.5. (a) Where it is proven by a preponderance of the evidence
that a defendant is liable for financial abuse, as defined in Section
15610.30, in addition to compensatory damages and all other remedies
otherwise provided by law, the court shall award to the plaintiff
reasonable attorney's fees and costs. The term "costs" includes, but
is not limited to, reasonable fees for the services of a conservator,
if any, devoted to the litigation of a claim brought under this
article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
compensatory damages, and all other remedies otherwise provided by
law, the limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any punitive damages may be imposed against an employer found liable
for financial abuse as defined in Section 15610.30. This subdivision
shall not apply to the recovery of compensatory damages or attorney'
s fees and costs.
(d) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.
15657.6. A person or entity that takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating,
obtaining, or retaining the real or personal property of an elder or
dependent adult when the elder or dependent adult lacks capacity
pursuant to Section 812 of the Probate Code, or is of unsound mind,
but not entirely without understanding, pursuant to Section 39 of the
Civil Code, shall, upon demand by the elder or dependent adult or a
representative of the elder or dependent adult, as defined in
subdivision (d) of Section 15610.30, return the property and if that
person or entity fails to return the property, the elder or dependent
adult shall be entitled to the remedies provided by Section 15657.5,
including attorney's fees and costs. This section shall not apply
to any agreement entered into by an elder or dependent adult when the
elder or dependent adult had capacity.
15657.7. An action for damages pursuant to Sections 15657.5 and
15657.6 for financial abuse of an elder or dependent adult, as
defined in Section 15610.30, shall be commenced within four years
after the plaintiff discovers or, through the exercise of reasonable
diligence, should have discovered, the facts constituting the
financial abuse.
WELFARE AND INSTITUTIONS CODE
SECTION 15657-15657.7
15657. Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse as defined in Section
15610.63, or neglect as defined in Section 15610.57, and that the
defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse, the following shall apply, in
addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's
fees and costs. The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
15657.01. Notwithstanding Section 483.010 of the Code of Civil
Procedure, an attachment may be issued in any action for damages
pursuant to Section 15657.5 for financial abuse of an elder or
dependent adult, as defined in Section 15610.30. The other provisions
of the Code of Civil Procedure not inconsistent with this article
shall govern the issuance of an attachment pursuant to this section.
In an application for a writ of attachment, the claimant shall refer
to this section. An attachment may be issued pursuant to this section
whether or not other forms of relief are demanded.
15657.03. (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall remain in effect only until January 1, 2010,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2010, deletes or extends that date.
15657.03. (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or conservator of the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or conservator of the petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner, other named family or household
member of the petitioner, or conservator of the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If a person named in an order issued under this section,
after a hearing, has not been served personally with the order but
has received actual notice of the existence and substance of the
order through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is required for
enforcement of the order.
(2) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(3) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall become operative on January 1, 2010.
15657.04. (a) The court shall order that any party enjoined
pursuant to Section 15657.03 be prohibited from taking any action to
obtain the address or location of a protected party or a protected
party's family members, caretakers, or guardian, unless there is good
cause not to make that order.
(b) The Judicial Council shall promulgate forms necessary to
effectuate this section.
15657.05. Where it is proven by clear and convincing evidence that
an individual is liable for abduction, as defined in Section
15610.06, in addition to all other remedies otherwise provided by
law:
(a) (1) The court shall award to the plaintiff reasonable attorney'
s fees and costs. The term "costs" shall include, but is not limited
to, costs of representing the abductee and his or her family in this
state and any other state in any action related to the abduction and
returning of the abductee to this state, as well as travel expenses
for returning the abductee to this state and reasonable fees for the
services of a conservator, if any, devoted to the litigation of a
claim brought under this article.
(2) The award of attorney's fees shall be governed by the
principles set forth in Section 15657.1.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
15657.1. The award of attorney's fees pursuant to subdivision (a)
of Section 15657 shall be based on all factors relevant to the value
of the services rendered, including, but not limited to, the factors
set forth in Rule 4-200 of the Rules of Professional Conduct of the
State Bar of California, and all of the following:
(a) The value of the abuse-related litigation in terms of the
quality of life of the elder or dependent adult, and the results
obtained.
(b) Whether the defendant took reasonable and timely steps to
determine the likelihood and extent of liability.
(c) The reasonableness and timeliness of any written offer in
compromise made by a party to the action.
15657.2. Notwithstanding this article, any cause of action for
injury or damage against a health care provider, as defined in
Section 340.5 of the Code of Civil Procedure, based on the health
care provider's alleged professional negligence, shall be governed by
those laws which specifically apply to those professional negligence
causes of action.
15657.3. (a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent
jurisdiction over civil actions and proceedings involving a claim
for relief arising out of the abduction, as defined in Section
15610.06, or the abuse of an elderly or dependent adult, if a
conservator has been appointed for the plaintiff prior to the
initiation of the action for abuse.
(b) The department of the superior court having jurisdiction over
probate conservatorships shall not grant relief under this article if
the court determines that the matter should be determined in a civil
action, but shall instead transfer the matter to the general civil
calendar of the superior court. The court need not abate a proceeding
for relief pursuant to this article if the court determines that the
civil action was filed for the purpose of delay.
(c) The death of the elder or dependent adult does not cause the
court to lose jurisdiction of a claim for relief for abuse of that
elder or dependent adult.
(d) (1) Subject to paragraph (2) and subdivision (e), after the
death of the elder or dependent adult, the right to commence or
maintain an action shall pass to the personal representative of the
decedent. If there is no personal representative, the right to
commence or maintain an action shall pass to any of the following, if
the requirements of Section 377.32 of the Code of Civil Procedure
are met:
(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section
377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate
Code, as limited in this subparagraph. As used in this subparagraph,
"an interested person" does not include a creditor or a person who
has a claim against the estate and who is not an heir or beneficiary
of the decedent's estate.
(2) If the personal representative refuses to commence or maintain
an action or if the personal representative's family or an
affiliate, as those terms are defined in subdivision (c) of Section
1064 of the Probate Code, is alleged to have committed abuse of the
elder or dependent adult, the persons described in subparagraphs (A),
(B), and (C) of paragraph (1) shall have standing to commence or
maintain an action for elder abuse. This paragraph does not require
the court to resolve the merits of an elder abuse action for purposes
of finding that a plaintiff who meets the qualifications of
subparagraphs (A), (B), and (C) of paragraph (1) has standing to
commence or maintain such an action.
(e) If two or more persons who are either described in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (d) or
a personal representative claim to have standing to commence or
maintain an action for elder abuse, upon petition or motion, the
court in which the action or proceeding is pending, may make any
order concerning the parties that is appropriate to ensure the proper
administration of justice in the case pursuant to Section 377.33 of
the Code of Civil Procedure.
(f) This section does not affect the applicable statute of
limitations for commencing an action for relief for abuse of an
elderly or dependent adult.
15657.5. (a) Where it is proven by a preponderance of the evidence
that a defendant is liable for financial abuse, as defined in Section
15610.30, in addition to compensatory damages and all other remedies
otherwise provided by law, the court shall award to the plaintiff
reasonable attorney's fees and costs. The term "costs" includes, but
is not limited to, reasonable fees for the services of a conservator,
if any, devoted to the litigation of a claim brought under this
article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
compensatory damages, and all other remedies otherwise provided by
law, the limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any punitive damages may be imposed against an employer found liable
for financial abuse as defined in Section 15610.30. This subdivision
shall not apply to the recovery of compensatory damages or attorney'
s fees and costs.
(d) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.
15657.6. A person or entity that takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating,
obtaining, or retaining the real or personal property of an elder or
dependent adult when the elder or dependent adult lacks capacity
pursuant to Section 812 of the Probate Code, or is of unsound mind,
but not entirely without understanding, pursuant to Section 39 of the
Civil Code, shall, upon demand by the elder or dependent adult or a
representative of the elder or dependent adult, as defined in
subdivision (d) of Section 15610.30, return the property and if that
person or entity fails to return the property, the elder or dependent
adult shall be entitled to the remedies provided by Section 15657.5,
including attorney's fees and costs. This section shall not apply
to any agreement entered into by an elder or dependent adult when the
elder or dependent adult had capacity.
15657.7. An action for damages pursuant to Sections 15657.5 and
15657.6 for financial abuse of an elder or dependent adult, as
defined in Section 15610.30, shall be commenced within four years
after the plaintiff discovers or, through the exercise of reasonable
diligence, should have discovered, the facts constituting the
financial abuse.
CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15630-15632
CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15630-15632
15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect, or is told by an elder or dependent adult that he
or she has experienced behavior, including an act or omission,
constituting physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect, or reasonably suspects that abuse, shall
report the known or suspected instance of abuse by telephone
immediately or as soon as practicably possible, and by written report
sent within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.
The local ombudsperson and the local law enforcement agency shall,
as soon as practicable, except in the case of an emergency or
pursuant to a report required to be made pursuant to clause (v), in
which case these actions shall be taken immediately, do all of the
following:
(i) Report to the State Department of Public Health any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day care facility, as defined in
paragraph (2) of subdivision (a) of Section 1502.
(iii) Report to the State Department of Public Health and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency.
Except in an emergency, the local law enforcement agency shall, as
soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected elder and
dependent adult abuse when he or she is acting in the capacity of a
care custodian, health practitioner, or employee of an adult
protective services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63 of the Welfare and Institutions
Code, abandonment, abduction, isolation, financial abuse, or
neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsperson, have access to plans
of care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Public Health and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as
soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except in
an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) When two or more mandated reporters are present and jointly
have knowledge or reasonably suspect that types of abuse of an elder
or a dependent adult for which a report is or is not mandated have
occurred, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement, and a single report may be made and signed by the selected
member of the reporting team. Any member who has knowledge that the
member designated to report has failed to do so shall thereafter make
the report.
(e) A telephone report of a known or suspected instance of elder
or dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other adult responsible
for the elder's or dependent adult's care, the nature and extent of
the elder's or dependent adult's condition, the date of the incident,
and any other information, including information that led that
person to suspect elder or dependent adult abuse, as requested by the
agency receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect of an elder or dependent adult, in violation of
this section, is a misdemeanor, punishable by not more than six
months in the county jail, by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment. Any mandated
reporter who willfully fails to report, or impedes or inhibits a
report of, physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect of an elder or dependent adult, in
violation of this section, where that abuse results in death or great
bodily injury, shall be punished by not more than one year in a
county jail, by a fine of not more than five thousand dollars
($5,000), or by both that fine and imprisonment. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until a law enforcement agency specified in paragraph (1) of
subdivision (b) of Section 15630 of the Welfare and Institutions Code
discovers the offense.
(i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.
15630.1. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or dependent adult" means all
officers and employees of financial institutions.
(b) As used in this section, the term "financial institution"
means any of the following:
(1) A depository institution, as defined in Section 3(c) of the
Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).
(2) An institution-affiliated party, as defined in Section 3(u) of
the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).
(3) A federal credit union or state credit union, as defined in
Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752),
including, but not limited to, an institution-affiliated party of a
credit union, as defined in Section 206(r) of the Federal Credit
Union Act (12 U.S.C. Sec. 1786(r)).
(c) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(d) (1) Any mandated reporter of suspected financial abuse of an
elder or dependent adult who has direct contact with the elder or
dependent adult or who reviews or approves the elder or dependent
adult's financial documents, records, or transactions, in connection
with providing financial services with respect to an elder or
dependent adult, and who, within the scope of his or her employment
or professional practice, has observed or has knowledge of an
incident, that is directly related to the transaction or matter that
is within that scope of employment or professional practice, that
reasonably appears to be financial abuse, or who reasonably suspects
that abuse, based solely on the information before him or her at the
time of reviewing or approving the document, record, or transaction
in the case of mandated reporters who do not have direct contact with
the elder or dependent adult, shall report the known or suspected
instance of financial abuse by telephone immediately, or as soon as
practicably possible, and by written report sent within two working
days to the local adult protective services agency or the local law
enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or a dependent
adult for which the report is mandated has occurred, and when there
is an agreement among them, the telephone report may be made by a
member of the reporting team who is selected by mutual agreement. A
single report may be made and signed by the selected member of the
reporting team. Any member of the team who has knowledge that the
member designated to report has failed to do so shall thereafter make
that report.
(3) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.
(e) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder
or dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an elder
or dependent adult did not occur.
(f) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
financial institution that is the employer of the mandated reporter
to the party bringing the action. Subdivision (h) of Section 15630
shall not apply to violations of this section.
(g) (1) The civil penalty provided for in subdivision (f) shall be
recovered only in a civil action brought against the financial
institution by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any person
other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty may not be brought
for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.
(h) As used in this section, "suspected financial abuse of an
elder or dependent adult" occurs when a person who is required to
report under subdivision (a) observes or has knowledge of behavior or
unusual circumstances or transactions, or a pattern of behavior or
unusual circumstances or transactions, that would lead an individual
with like training or experience, based on the same facts, to form a
reasonable belief that an elder or dependent adult is the victim of
financial abuse as defined in Section 15610.30.
(i) Reports of suspected financial abuse of an elder or dependent
adult made by an employee or officer of a financial institution
pursuant to this section are covered under subdivision (b) of Section
47 of the Civil Code.
(j) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
15631. (a) Any person who is not a mandated reporter under Section
15630, who knows, or reasonably suspects, that an elder or a
dependent adult has been the victim of abuse may report that abuse to
a long-term care ombudsman program or local law enforcement agency
when the abuse is alleged to have occurred in a long-term care
facility.
(b) Any person who is not a mandated reporter under Section 15630,
who knows, or reasonably suspects, that an elder or a dependent
adult has been the victim of abuse in any place other than a
long-term care facility may report the abuse to the county adult
protective services agency or local law enforcement agency.
15632. (a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.
(b) Nothing in this chapter shall be interpreted as requiring an
attorney to violate his or her oath and duties pursuant to Section
6067 or subdivision (e) of Section 6068 of the Business and
Professions Code, and Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.
WELFARE AND INSTITUTIONS CODE
SECTION 15630-15632
15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect, or is told by an elder or dependent adult that he
or she has experienced behavior, including an act or omission,
constituting physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect, or reasonably suspects that abuse, shall
report the known or suspected instance of abuse by telephone
immediately or as soon as practicably possible, and by written report
sent within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.
The local ombudsperson and the local law enforcement agency shall,
as soon as practicable, except in the case of an emergency or
pursuant to a report required to be made pursuant to clause (v), in
which case these actions shall be taken immediately, do all of the
following:
(i) Report to the State Department of Public Health any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day care facility, as defined in
paragraph (2) of subdivision (a) of Section 1502.
(iii) Report to the State Department of Public Health and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency.
Except in an emergency, the local law enforcement agency shall, as
soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected elder and
dependent adult abuse when he or she is acting in the capacity of a
care custodian, health practitioner, or employee of an adult
protective services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63 of the Welfare and Institutions
Code, abandonment, abduction, isolation, financial abuse, or
neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsperson, have access to plans
of care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Public Health and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as
soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except in
an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) When two or more mandated reporters are present and jointly
have knowledge or reasonably suspect that types of abuse of an elder
or a dependent adult for which a report is or is not mandated have
occurred, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement, and a single report may be made and signed by the selected
member of the reporting team. Any member who has knowledge that the
member designated to report has failed to do so shall thereafter make
the report.
(e) A telephone report of a known or suspected instance of elder
or dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other adult responsible
for the elder's or dependent adult's care, the nature and extent of
the elder's or dependent adult's condition, the date of the incident,
and any other information, including information that led that
person to suspect elder or dependent adult abuse, as requested by the
agency receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect of an elder or dependent adult, in violation of
this section, is a misdemeanor, punishable by not more than six
months in the county jail, by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment. Any mandated
reporter who willfully fails to report, or impedes or inhibits a
report of, physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect of an elder or dependent adult, in
violation of this section, where that abuse results in death or great
bodily injury, shall be punished by not more than one year in a
county jail, by a fine of not more than five thousand dollars
($5,000), or by both that fine and imprisonment. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until a law enforcement agency specified in paragraph (1) of
subdivision (b) of Section 15630 of the Welfare and Institutions Code
discovers the offense.
(i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.
15630.1. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or dependent adult" means all
officers and employees of financial institutions.
(b) As used in this section, the term "financial institution"
means any of the following:
(1) A depository institution, as defined in Section 3(c) of the
Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).
(2) An institution-affiliated party, as defined in Section 3(u) of
the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).
(3) A federal credit union or state credit union, as defined in
Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752),
including, but not limited to, an institution-affiliated party of a
credit union, as defined in Section 206(r) of the Federal Credit
Union Act (12 U.S.C. Sec. 1786(r)).
(c) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(d) (1) Any mandated reporter of suspected financial abuse of an
elder or dependent adult who has direct contact with the elder or
dependent adult or who reviews or approves the elder or dependent
adult's financial documents, records, or transactions, in connection
with providing financial services with respect to an elder or
dependent adult, and who, within the scope of his or her employment
or professional practice, has observed or has knowledge of an
incident, that is directly related to the transaction or matter that
is within that scope of employment or professional practice, that
reasonably appears to be financial abuse, or who reasonably suspects
that abuse, based solely on the information before him or her at the
time of reviewing or approving the document, record, or transaction
in the case of mandated reporters who do not have direct contact with
the elder or dependent adult, shall report the known or suspected
instance of financial abuse by telephone immediately, or as soon as
practicably possible, and by written report sent within two working
days to the local adult protective services agency or the local law
enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or a dependent
adult for which the report is mandated has occurred, and when there
is an agreement among them, the telephone report may be made by a
member of the reporting team who is selected by mutual agreement. A
single report may be made and signed by the selected member of the
reporting team. Any member of the team who has knowledge that the
member designated to report has failed to do so shall thereafter make
that report.
(3) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.
(e) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder
or dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an elder
or dependent adult did not occur.
(f) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
financial institution that is the employer of the mandated reporter
to the party bringing the action. Subdivision (h) of Section 15630
shall not apply to violations of this section.
(g) (1) The civil penalty provided for in subdivision (f) shall be
recovered only in a civil action brought against the financial
institution by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any person
other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty may not be brought
for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.
(h) As used in this section, "suspected financial abuse of an
elder or dependent adult" occurs when a person who is required to
report under subdivision (a) observes or has knowledge of behavior or
unusual circumstances or transactions, or a pattern of behavior or
unusual circumstances or transactions, that would lead an individual
with like training or experience, based on the same facts, to form a
reasonable belief that an elder or dependent adult is the victim of
financial abuse as defined in Section 15610.30.
(i) Reports of suspected financial abuse of an elder or dependent
adult made by an employee or officer of a financial institution
pursuant to this section are covered under subdivision (b) of Section
47 of the Civil Code.
(j) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
15631. (a) Any person who is not a mandated reporter under Section
15630, who knows, or reasonably suspects, that an elder or a
dependent adult has been the victim of abuse may report that abuse to
a long-term care ombudsman program or local law enforcement agency
when the abuse is alleged to have occurred in a long-term care
facility.
(b) Any person who is not a mandated reporter under Section 15630,
who knows, or reasonably suspects, that an elder or a dependent
adult has been the victim of abuse in any place other than a
long-term care facility may report the abuse to the county adult
protective services agency or local law enforcement agency.
15632. (a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.
(b) Nothing in this chapter shall be interpreted as requiring an
attorney to violate his or her oath and duties pursuant to Section
6067 or subdivision (e) of Section 6068 of the Business and
Professions Code, and Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.
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