Safeguarding California’s Elderly and Dependent Adults Through Protective Proceedings and Protective Orders
Conservatorships, Elder Abuse, and Dependent Adult Restraining Orders
As legal practitioners, we are often faced with representing or safeguarding the rights of vulnerable communities. With the state’s aging population, instances of exploitation of vulnerable adults have steadily increased. To combat this, protective proceedings such as conservatorships and restraining orders are helpful tools to protect elderly and dependent adults from abuse and exploitation.
Conservatorships
The very nature of a conservatorship is to provide protection and support for individuals who are unable to protect their own interests due to incapacity, whether it be due to old age, illness, or disability. A conservator can be appointed for an individual who is substantially unable to provide for his or her personal needs like physical health, food, clothing, or shelter, to meet their financial needs, or to resist undue influence or fraud.
The court may appoint a conservator of the person to make decisions regarding the conservatee’s personal care and a conservator of the estate to manage their financial affairs. The conservator is tasked with ensuring the conservatee’s welfare and managing their finances in their best interests. A petitioner must also demonstrate that there are no less restrictive alternatives available through showing various attempts to assist the incapacitated individual by other means, whether formally or informally.
Often times, conservatorships start when a family member or friend learns or witnesses an elderly or dependent adult falling victim to various financial scams or exploitation, in addition to other physical abuse or neglect. When those circumstances are present, there can be a need for both a conservatorship and an elder or dependent adult abuse restraining order.
Elder or Dependent Adult Abuse Restraining Orders
Elder Abuse or Dependent Adult Restraining Orders are governed by the Welfare and Institutions Code. Like conservatorships, these orders are also used protect older or dependent adults from abuse, neglect, or exploitation. Elder or dependent adult abuse encompasses physical abuse, neglect, financial abuse, abandonment, and other forms of mistreatment. Elder or dependent adult abuse restraining orders can be sought to address any of these forms of abuse, providing immediate relief and protection for vulnerable individuals. These protections can also extend to additional family members or household members.
Under the Welfare and Institutions Code, an Elder is an adult sixty-five (65) years of age or older. A dependent adult is an adult between the ages of eighteen (18) to sixty-four (64) who has a physical or mental limitation that restricts their ability to carry out normal activities.
“Abuse” encompasses physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or mental suffering, the deprivation by a care custodian of goods and services that are necessary to avoid harm or suffering, or financial abuse.
The elder or dependent adult can file a petition for a protective order. Alternatively, a petition may be brought on behalf of the elder or dependent adult. Currently, the Welfare and Institutions Code states the following individuals can bring a petition on behalf of an elder or dependent adult: (1) a conservator of the person and/or estate (2) trustee (3) agent acting under the authority of a valid power of attorney, (4) a court-appointed guardian ad litem, or (5) another person legally recognized to seek such relief.
Common Examples of Elder Abuse or Dependent Adult Abuse
1. Physical Abuse: Inflicting physical harm, such as hitting, kicking, or restraining the elder or dependent adult.
2. Neglect: Failing to provide adequate food, shelter, medical care, or assistance with personal hygiene. This can also include mismanagement of necessary medications.
3. Financial Abuse/Exploitation: Misusing or stealing money, property, or assets for personal gain. This can also include convincing an elderly or dependent adult to participate in certain transactions, such as transferring title to property.
4. Emotional Abuse: Subjecting the elder to verbal insults, threats, intimidation, or other forms of psychological harm.
5. Abandonment: Deserting the elderly or dependent adult without providing necessary care or support, leaving them vulnerable and isolated.
Types of Orders
1. Stay-Away Orders
Stay-away orders will require the restrained person to stay a specific distance away from the protected individual, the protected individual’s home, workplace, or vehicle.
2. Move Out Orders
Move-Out Orders, also known as “residence exclusion orders” will require the restrained person to move out of the elder or dependent adult’s place of residence. Move-Out Orders will not be issued in situations where there is only financial abuse, without the presence of physical or emotional abuse. Evidence must be presented that the elder or the dependent adult has the right to possession of the premises, that they will suffer physical or emotional harm if the other person does not leave, and that the other person assaulted or threatened the elder or dependent adult. The court cannot order the other person to move out if they are on the title or lease with other people besides the elder or dependent adult.
3. Personal Conduct Orders Personal Conduct Orders order the restrained individual to not engage in the following activities: physical abuse, financial abuse, attack, molest, threaten, hit, harass, or destroy the personal property of the restrained individual. Additionally, this can include no contact orders to prevent the restrained individual from contacting the protected individual in any way.
Conclusion
Conservatorships and Elder or Dependent Adult Abuse Restraining Orders serve as vital tools in safeguarding California’s elderly and dependent adults from abuse. Conservatorships offer essential support for those unable to protect their interests due to incapacity, ensuring decisions regarding personal care and finances are made in their best interests.
Similarly, Elder or Dependent Adult Abuse Restraining Orders provide immediate protection from various forms of mistreatment, including physical, emotional, and financial abuse, through legal recourse. These orders enforce necessary boundaries and prohibit abusive behavior, effectively protecting vulnerable members of the community.
As legal practitioners, it is essential to recognize the significance of these tools in upholding the dignity and rights of our clients. In continuing to employ these strategies, we affirm our commitment to advocating for the well-being of all members of our community.