Elder abuse comes in many forms and unfortunately is much more prevalent than we think. According to the National Center on Elder Abuse, a family member is the most common perpetrator of financial elder abuse (57.9%), followed by friends (16.9%), and home care aides (14.9%).
If you suspect elder abuse, the first step is getting that family member physically safe. You should immediately contact an elder abuse attorney to discuss your legal remedies and make sure your actions don’t make it more challenging for you to gain the legal authority needed to protect your loved one. Sometimes family members take action to protect their loved one that actually makes them look like the perpetrator, making it more challenging to later be appointed by the court to protect the individual.
Elder abuse and the laws surrounding it can be tricky. This guide will give you insight into elder abuse law and why it’s better to have an attorney.
What is Elder Law?
This branch of the law was developed to serve and protect the needs of seniors and their family members. While there are available protections for any vulnerable adult, a senior (or elder) that is 65 years or older, has greater legal protection and remedies available to them. The rules encompassed under elder law include those surrounding conservatorships, elder abuse, estate planning, and Medicaid/Medi-Cal planning.
Federal and State Laws Related to Elder Abuse
Elders are a vulnerable population, which is why state and federal laws and programs have been created to help keep seniors safe. Unfortunately, organizations like Adult Protective Services don’t do a whole lot more than file reports.
While state-level programs vary depending upon the state, California has senior programs including The California State Long-Term Care Ombudsman Program, which helps to address issues in long-term care facilities, and The California Department of Aging Health Insurance Counseling and Advocacy Program (HICAP), designed to ensure elders understand the available health and drug treatment options.
Types of Elder Abuse in California
While elder abuse can take many forms, below are common types of abuse often seen in the state of California:
- Financial abuse is the improper use of the elder’s financial resources for personal benefit, profit, or gain. This could include the individual forging the elder’s signature on a check and cashing it, writing the check and having the elder sign it, or taking the elder to the bank to withdraw cash that they use for their personal benefit.
- Physical abuse happens when a senior is injured, threatened, restrained, or inappropriately handled.
- Nursing home abuse is typically defined when the home fails to meet the required standard of care. This situation is tricky, and we encourage you to call an elder abuse attorney if you suspect neglect or abuse.
- Sexual abuse is any sexual act done to an elder against his/her will.
- Neglect occurs when the responsible party refuses to provide adequate food, water, shelter, or care to a senior. This is actually one of the most common forms of elder abuse.
- Lack of proper care can include lack of supervision resulting in wandering, dehydration, malnutrition, infection, and bedsores. Often these situations can lead to more serious health conditions for the elder. Urinary Tract Infections are common among elders, can often go unnoticed, and can result in confusion that appears similar to dementia symptoms.
Who Should Hire an Elder Law Lawyer?
With the aging process comes complicated risks due to their increased vulnerability to undue influence and the willingness of family members, caregivers, or opportunists to capitalize on these vulnerabilities. There are fortunately laws and procedures, most of which can be confusing, to protect your loved one. An elder abuse lawyer can help put necessary documents in place to protect your loved one. While an estate plan alone won’t protect a vulnerable elder, it will provide notice to the court of what the elders wishes were as far as who should manage their money and make healthcare decisions. Once the elder loses capacity, it may end up being one child’s word against the other. This can result in lengthy and costly conservatorship and elder abuse litigation.
Unfortunately, many people will wait too long to hire someone that can properly advise them. The best advice we can offer you is to hire an elder attorney now as you’ll need this experienced professional on your side before your health is questionable and you find yourself in an abusive situation.
Can a Good Elder Abuse Attorney Help My Family Avoid Costly Mistakes?
Yes, an elder abuse lawyer will craft the best plan possible because:
- Their sole focus will be on you, their client.
- They will have access to a wide range of legal tools and strategies specific to meet the goals and needs of seniors.
- More often than not, an elder abuse lawyer will have a holistic approach to the legal advice they provide. When crafting the right plan, they will think about key issues including housing, financial well-being, health, long-term care, and quality of life.
- They will stay up-to-date with knowledge and issues facing elders allowing them to give you the best advice possible.
- Elder abuse lawyers understand real-life problems that seniors face which allows them to recognize physical and mental difficulties helping them to empathize and be compassionate.
- They will have a group of social workers, psychologists, professional fiduciaries, and other senior care professionals that can assist you should that need arise.
Hiring an elder abuse attorney can also assist with:
- Creation of a living Will, trust, power of attorney, and last Will and testament
- Social Security, Medicaid, and Medicare claims
- Discrimination in the workplace
- Estate planning and conservatorships
- Fraud recovery
The vulnerable nature of seniors, unfortunately, allows them to become victims of abuse and fraud very easily. Meeting with an elder abuse attorney can help your family to avoid emotional and costly mistakes and to remedy them once they have been made.
What is a Conservator and How Can They Protect Elders?
You can request to be either Conservator of the Person or Estate depending upon the situation. Typically, a Conservatorship of the Person allows the Conservator to make important decisions regarding the person’s medical needs, health, food, clothing, and shelter. A conservator is the only person who can restrict access and has legal authority to obtain a restraining order against anyone. A power of attorney does not give you this authority. The sole purpose and role of the Conservator is to ensure the Conservatee’s needs are being met and to the Conservatee (elder being abused).
A Conservator of the Estate allows a person to manage finances on behalf of the person who can no longer make his/her own decisions. The power behind a Conservatorship is that this position provides greater protection in comparison to a power of attorney as the Conservator has sole access to finances. A power of attorney provides dual access to the named agent and the vulnerable elder. This means a bad actor can still take dad to the bank and have him withdraw cash.
A conservatorship is necessary to protect an elder that is currently the subject of any abuse or undue influence.
Should I Use a Professional Fiduciary?
It depends upon your family circumstance. A professional fiduciary is an individual who is licensed, bonded, and willing to serve as the Trustee or Conservator. This person can be appointed to this position by the court. Typically professional fiduciaries tend to be individuals, trust company officers, certified public accountants, or even attorneys. Their fees vary depending on their background but individual professional fiduciaries can be very experienced, knowledgeable, and reasonably priced.
A professional fiduciary is objective and experienced, and can ensure the person’s affairs are taken care of with no added drama. We recommend using them when there are either no family member located close by or the family is in dispute over who to appoint. It is often less expensive to pay a professional fiduciary off the bat rather than to go through the costly conservatorship litigation process to have a challenged family member appointed. An elder abuse lawyer can provide referrals to good professional fiduciaries who you can interview to determine if they are the right fit.
How Can I Find a Qualified Elder Law Firm?
Before performing research to find a qualified elder abuse attorney, develop a list of specific concerns for the foreseeable future. This will help to determine the qualities and skills needed in your attorney. You will also want to ensure the elder abuse lawyer you choose is experienced, educated, and relatable.
You can narrow down your search by asking for referrals from trusted sources and reviewing websites. We also recommend that you set up an in-person meeting to ask elder abuse lawyers the following questions:
- How long have you been practicing elder abuse law?
- Are you licensed to practice elder abuse law in California?
- Do you have litigation experience?
- What type of fee structure do you offer?
Working with an experienced elder abuse attorney that understands the law, can navigate family dynamics, and knows the emotional challenges this situation entails will be your saving grace. Get a free consultation with the best elder abuse lawyer in San Diego today.
Kam Law Firm understand the legal steps necessary to protect your vulnerable loved ones. The team of elder abuse attorneys will stop at nothing to ensure justice is received. If you have questions regarding elder abuse or would like to work with our elder abuse attorneys, please call us today at 619-535-1405.