Elder abuse is a difficult topic, since it sits astride a few areas of law. Frequently, elder abuse situations will involve a mix of criminal law, family law, and elder law, which is increasingly its own field. This blog post focuses on the sorts of cases that result in elder abuse restraining orders, but note that there are often also cases in other fields of law, or other courthouses, that will run in parallel. This post is probably more useful for attorneys than potential clients, but hopefully helpful for both.
The standard for elder abuse is a little different than the standard for a standard restraining order. Elder abuse cases generally involve family members, and there's generally an allegation that someone, usually a child, has abused a person over 65 years of age. This abuse can take several forms; physical abuse is probably obvious, but financial abuse is common as well, in which someone has either threatened or tricked a relative into giving them money they're not entitled to. Notably, attorneys handling these sorts of cases should be aware that, often, acts which constitute financial abuse are also crimes, often mandatory minimum sentencing crimes. A client with a financial abuse claim should be advised that there's a chance of the state getting involved directly, with dire consequences for the other party. This is discussed further below.
Otherwise, the process for elder abuse restraining orders is the same as for domestic violence restraining orders. A petition is filed, the order is usually granted, and the other party is served. I strongly recommend that elder abuse restraining orders be served by professional process servers, as I don't find that either family members or the local sheriffs are particularly reliable in this regard. Budget cuts in California have hit sheriffs as hard as everyone else, and often family members that are initially willing to serve documents will either change their minds or carry messages back and forth, thus violating the order almost immediately.
In my experience, elder abuse orders are not difficult to defend, and the crucial thing is to have some sort of plan in place for what happens under the terms of the order after service and after hearing. For example, commonly a restrained party will have been living with the victim up until the events giving rise to the RO, and there will be property left in the house. Best practice, again in my opinion, is to have the client open a storage unit, move the property, and then transmit the storage unit info to the restrained party via counsel. If the client pays for, say, 6 months of time and won't be present at the unit after the initial move, then the restrained party has ample time to recover any belongings. Similarly, given the reluctance of many police departments to get involved in what they feel are family disputes, a client should be counseled about keeping copies of the order readily to handle, and how to record or document violations.
The most difficult cases are those that have parallel criminal charges or probate issues. As above, the consequences of criminal charges can be extremely serious; when a child acting as caregiver writes a check to themselves on the parent's account without permission, they can be liable for at least 4 felonies per check, and often mandatory minimum sentencing laws will require 15 months or mer per charge. Counsel needs to be aware of this eventuality, and to know whether the court hearing the elder abuse case is likely to refer cases out to the DA. Counsel should also enquire about any extant wills or bequests, since the client may wish to amend them, or the terms of the documents may be incompatible with the terms of the elder abuse order. In all jurisdictions I'm aware of, probate is much, much slower than elder abuse court, and in most it's not even in the same courthouse. Nevertheless the cases are directly related.
Elder abuse orders are a good example of why it's often a mistake to settle for a firm with a narrow field of practice. Someone who only does one aspect of elder law, like abuse orders, is probably not going to be fully aware of the full consequences of criminal charges, nor do most straight probate firms have a lot of experience with the sometimes very contentious nature of restraining order hearings. Further, at least in California, courts simply do not have the resources to do these hearings to the same standards as the law and rules of court require. Counsel for clients is therefore called upon to do a lot, and benefits greatly from knowledge of the local conditions in the relevant county. A broader experience will also lead to better advice about how to enforce an elder abuse order, how to deal with property, how to amend documents, and how to handle the predictable but volatile family fallout.
If you have an elder abuse issue you'd like our help on, or if you're not sure whether or not your situation qualifies as elder abuse, please feel free to use our Instant Quote form to tell us about your case, and we'll get back to you as soon as we can.