Tuesday, January 8, 2008

Who has standing to bring an Elder Abuse Lawsuit after the Elder's Death?

Amendment to California’s Elder Abuse Law Will Help Families Hold Abusers Accountable


Monday, August 27, 2007, 02:57 PM - Elder Abuse Laws


The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) will be amended effective January 1, 2008, to expand and clarify the list of who may bring a lawsuit for elder abuse, abandonment, or neglect after the death of the abused elder. Currently, the law provides that after the elder’s death, the right to bring a lawsuit under EADACPA transfers to the personal representative of the deceased’s estate, or if there is none, to the person or persons entitled to succeed to the decedent’s estate. See Welfare & Institutions Code Section 15657.3(d). Yet, what if there is a personal representative, but that person does not wish to pursue an elder abuse lawsuit, even though other family members do? Or, worse still, what if the deceased was a victim of abuse by the personal representative? Or the personal representative used undue influence over the elder to have him- or her-self appointed as personal representative? In such cases, the very person who would be a defendant in the elder abuse lawsuit has the power, as personal representative, to block the lawsuit from going forward. A case in point is the Estate of Lowrie case. There, a son of the deceased elder, Laura Marie Lowrie, was appointed her first successor trustee. Laura Marie’s granddaughter was second successor trustee and beneficiary. After Laura Marie's death, her granddaughter filed an elder abuse lawsuit against the son, seeking findings that he had abused Laura Marie prior to her death. The court found that the son had financially and physically abused his mother, and awarded damages to the granddaughter. The son appealed, contending the granddaughter had no standing to bring an elder abuse lawsuit, because he was his mother’s personal representative, and thus, the only person empowered under EADACPA to bring a elder abuse lawsuit. The Court of Appeal held that the granddaughter did have standing to sue as a plaintiff under EADACPA, and that the standing provisions of EADACPA must be read so as to “deter, not encourage elder abuse.” The Lowrie case is frequently used by lawyers representing families to provide a basis to pursue elder abuse cases on behalf of family members other than the deceased’s personal representative.The amendments to EADACPA will codify the Lowrie court's holdings and provide more flexibility to family members who wish to pursue elder abuse lawsuits after the elder’s death. The text of the new statute, which takes effect January 1, 2008, is as follows:“Section 15657.3 of the Welfare and Institutions Code is amended to read:15657.3. (a) The department of the superior court havingjurisdiction 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 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 any 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 any claim for relief for abuse of an 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 who is not an heir or beneficiary of the decedent's estate.(d)(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 theelder 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. Nothing in this paragraph shall require the court to resolve the merits of an elder abuse action for the 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 subparagraphs (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."

The amendment will provide the flexibility needed to give interested family members the ability to bring elder abuse lawsuits and hold wrongdoers accountable.
Thanks to Senator Ellen Corbett and her legislative staff for sponsoring this important bill.

Felicia Curran
http://www.elderadvocacyblog.com/
http://www.boxerlaw.com/*
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2 comments:

  1. I have a question: I have been trying to find the statute of limitation (in California) for bringing a civil suit for financial elder abuse. Can someone point me in the correct direction?

    ReplyDelete
  2. Anonymous

    Look at SB 1140...California Senate bill just signed into law. Changes Welfare & Institutions Statute 15610 from no statute of limitation to 4 years.

    ReplyDelete